The Accountability of the Executive
Chapter Thirty-Nine
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 161 to 164 of 356
In one line
Most of what the judicial process actually does, day to day, is make the administration answer for what it has done, and the machinery for that is the largest part of Indian public law.
In the wording a student can write in an exam: accountability of the executive is the requirement that the government and its agencies answer for the exercise of public power. It operates through political mechanisms, chiefly collective and individual responsibility to the legislature under Articles 75 and 164; through legal mechanisms, chiefly judicial review under Articles 32, 226 and 227; through institutional mechanisms, such as the Comptroller and Auditor General under Articles 148 to 151, the Public Accounts Committee and statutory commissions; and through transparency mechanisms, chiefly the Right to Information Act 2005 and a free press.
Why the judicial mechanism matters most in this paper
Political accountability works in theory and is weak in practice where the executive commands the legislature, which is the ordinary state of a Westminster system with a majority government. The individual citizen against whom power has been misused cannot wait for an election and cannot compel a debate. What that citizen can do is go to court.
The legal mechanisms
1. The writs. Article 32 in the Supreme Court and Article 226 in the High Courts, with Article 227 supplying supervision over tribunals. The five writs are habeas corpus for unlawful detention, mandamus to compel performance of a public duty, prohibition and certiorari against excess of jurisdiction, and quo warranto against a person holding a public office without title.
2. The grounds. Illegality, irrationality, procedural impropriety, proportionality, legitimate expectation and mala fides, worked in [The Grounds of Judicial Review].
3. Natural justice. Maneka Gandhi v. Union of India, AIR 1978 SC 597, is the case that made procedural fairness a constitutional requirement rather than a common law implication.
Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.
Held. Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive. The right to travel abroad is part of personal liberty, and audi alteram partem applies to the impounding of a passport, though a post-decisional hearing may suffice in urgency.
Why it matters here. The executive had acted under an express statutory power and had given a statutory reason for withholding reasons. It was still held to account, on the ground that a power exercised without a fair procedure is not lawfully exercised at all.
The Accountability of the Executive
4. The reach of Article 12. Accountability is worthless if the body exercising public power falls outside the fundamental rights. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, extended the reach.
Facts. Candidates challenged admissions to a regional engineering college run by a society registered under the Jammu and Kashmir Registration of Societies Act, complaining of the weight given to a viva voce examination. The threshold question was whether the society was the State within Article 12.
Held. The society is the State within Article 12, on the tests of deep and pervasive State control: composition dominated by government nominees, finances met entirely by government, rules requiring prior government approval, accounts subject to government scrutiny, and an obligation to comply with government directions. On the merits, allocating a high percentage of marks to an interview is arbitrary and violates Article 14.
Why it matters here. It is accountability extended by defining the duty bearer rather than the right. Without it, public functions performed through corporate forms would escape the Constitution entirely.
5. Compensation for unlawful executive action. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.
Facts. A mother wrote to the Supreme Court after her son, aged twenty two, was taken into police custody and his body was found on a railway track the next day with multiple injuries. The letter was treated as a writ petition under Article 32.
Held. An award of compensation in a proceeding under Article 32 or Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights, to which the defence of sovereign immunity does not apply, even though it may be available in a private law action in tort. Compensation was awarded, leaving the ordinary civil remedies intact.
Why it matters here. Accountability that produces only a declaration is weak. Money is the form of accountability an administration notices, and this decision created it.
6. Enforcement of duties already imposed. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, is accountability for non-implementation of law the executive was already bound to apply.
Worked in full in [Locus Standi and Epistolary Jurisdiction]. Bonded labour was already prohibited by Article 23 and by statute, and the Court's contribution was procedural: a letter treated as a petition, commissioners to establish what the petitioner could not prove, and detailed directions to enforce a prohibition the elected branches had already enacted.
Why it matters here. The most defensible form of judicial intervention is the enforcement of an obligation the elected branches have already accepted, and this is its model.
The Accountability of the Executive
The limits on holding the executive to account
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, fixes them.
Facts. Unsuccessful candidates for MBBS and BDS admission challenged the selection procedure, and the High Court gave directions to the State Government including a direction to constitute a statutory body for selections.
Held. While the legislature, the executive and the judiciary function within their own spheres, no organ can take over the functions assigned to another. A court exercising judicial review does not sit as an appellate authority over the executive and cannot advise the executive in matters of policy; its function is to see that the executive acts within the limits of its authority and that its acts do not infringe the law.
Why it matters here. Accountability is for legality, not for wisdom. A court that reviews the merits of a policy has stopped holding the executive to account and started governing.
A worked example
A State Government cancels a public tender after opening bids and awards the contract to a company by nomination, citing urgency.
Political accountability. A question in the Assembly, if the opposition raises it, with no remedy for the disappointed bidder.
Legal accountability. Judicial review on the grounds of illegality, since the power to nominate is exceptional; procedural impropriety, since the bidders were not heard; arbitrariness under Article 14; and legitimate expectation, since the tender created one.
Institutional accountability. Audit by the Comptroller and Auditor General, and examination by the Public Accounts Committee.
Transparency. The file may be sought under the Right to Information Act 2005.
What is outside review. Whether the project should have been undertaken at all. On Asif Hameed, that is policy.
Quick revision
- Four kinds of executive accountability: political, legal, institutional and transparency-based.
- Political accountability is weak where the executive commands the legislature, which is why the legal mechanism carries most of the weight in this paper.
- Legal machinery: Articles 32, 226 and 227; the five writs; the grounds of review.
- Maneka Gandhi: a power exercised without a fair procedure is not lawfully exercised.
- Ajay Hasia: accountability extended by defining the State in Article 12 through deep and pervasive control.
- Nilabati Behera: compensation in public law, which is the form of accountability an administration notices.
- Bandhua Mukti Morcha: enforcement of an obligation the elected branches had already accepted.
- Asif Hameed: accountability is for legality, not for wisdom.
Test yourself
1. Name the four kinds of executive accountability and say why the legal kind dominates this subject. Political, through responsibility to the legislature under Articles 75 and 164; legal, through judicial review under Articles 32, 226 and 227; institutional, through the Comptroller and Auditor General, the Public Accounts Committee and statutory commissions; and transparency, through the Right to Information Act 2005 and a free press. The legal kind dominates because political accountability is weak where the executive commands a legislative majority, and because only the legal mechanism is available to an individual citizen at the time the power is misused.
The Accountability of the Executive
2. Why is Ajay Hasia an accountability case rather than a rights case? Because what it extended was not the content of any right but the class of bodies bound by rights. By holding a registered society under deep and pervasive government control to be the State within Article 12, it prevented public functions performed through corporate forms from escaping the Constitution, which is a question about who must answer rather than about what is owed.
3. Why does Nilabati Behera strengthen accountability more than a declaration would? Because a declaration that a right has been violated imposes no cost. By holding that compensation in a proceeding under Article 32 or Article 226 is a public law remedy resting on strict liability, to which sovereign immunity does not apply, the Court created a consequence the administration feels, and it is now the ordinary relief in custodial death cases.
4. State the boundary of judicial accountability of the executive. That review is for legality and not for wisdom. On Asif Hameed, a court exercising judicial review does not sit as an appellate authority over the executive and cannot advise it in matters of policy; its function is to see that the executive acts within the limits of its authority and that its acts do not infringe the law.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.