The Institutions That Hold a Government to Account

Articles 149 to 151 give him his duties and powers, provide that he shall exercise them in relation to the accounts of the Union and of the States, and require his reports relating to the accounts of the Union to be laid before each House of Parliament and those relating to a State before the State Legislature.

The design is worth noticing. The auditor is appointed by the executive but can be removed only by the process that removes a judge, his pay cannot be cut, he cannot be offered a job afterwards, and his report goes not to the government but to the legislature. Every one of those is a device to make him useless as an instrument and effective as a check.

Electoral accountability

Article 324(1) vests the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament, to the State Legislatures, and to the offices of President and Vice-President, in an Election Commission.

Article 324(2) provides that the Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners as the President may from time to time fix, and that appointment shall be subject to any law made by Parliament.

Article 324(5) gives the Chief Election Commissioner the same protection as a judge of the Supreme Court: he shall not be removed from office except in like manner and on the like grounds, and his conditions of service shall not be varied to his disadvantage after appointment; another Election Commissioner shall not be removed except on the recommendation of the Chief Election Commissioner.

Articles 325 to 329 complete the scheme: one general electoral roll for every constituency with no exclusion on grounds of religion, race, caste or sex (article 325); adult suffrage (article 326); Parliament's power to make provision with respect to elections (article 327); and the bar in article 329 on judicial interference in electoral matters, an election being called in question only by an election petition.

Administrative accountability

Articles 315 to 323 provide for a Public Service Commission for the Union and for each State. Members are appointed by the President or the Governor, hold office for six years or until the age of sixty-five or sixty-two respectively, and may be removed only by the President on the ground of misbehaviour after a reference to and report by the Supreme Court, or for the specified disqualifications.

Article 320 makes it the duty of the Commissions to conduct examinations for appointments and to be consulted on recruitment, promotion, transfer and disciplinary matters. Article 322 charges their expenses on the Consolidated Fund, and article 323 requires their annual reports to be laid before the legislature with a memorandum explaining any non-acceptance of advice.

The requirement to explain non-acceptance is the interesting one. The advice is not binding, but a government that departs from it must say so in a document laid before the legislature, which is accountability by publicity rather than by prohibition.

A worked example

A State government awards a large contract without tender to a company, meets the expenditure from the Contingency Fund, appoints thirty officers to a new department without reference to the State Public Service Commission, and postpones local elections indefinitely by not constituting the State Election Commission. Identify the accountability failure in each and the provision that answers it.

The contract and the payment. Article 266(3) permits appropriation from the Consolidated Fund only in accordance with law, and article 267 confines the Contingency Fund to unforeseen expenditure pending authorisation. Expenditure known in advance and routed through the Contingency Fund is a device to avoid a vote, and the Comptroller and Auditor General's report under article 151 is the mechanism that will surface it.

The appointments. Article 320(3) requires the Commission to be consulted on recruitment, and article 323 requires the government to lay before the legislature a memorandum explaining any case in which the advice was not accepted. The remedy here is not primarily a court but a document the House can read.

The elections. Article 243K requires a State Election Commission for panchayat elections, and article 243ZA the same for municipalities, and the Supreme Court has repeatedly held that elections must be held before the expiry of a body's five-year term. This is where a court will intervene directly.

And the general lesson. Three of the four failures are addressed by disclosure and by a vote rather than by litigation, which is why a constitutionalism answer that mentions only the courts is incomplete.

The cases

Accountability machinery can be directed into existence. In Vineet Narain v. Union of India, (1998) 1 SCC 226; AIR 1998 SC 889. Facts. The Jain hawala diaries, in which payments were said to have been made to senior politicians and officials, and the failure of the Central Bureau of Investigation to investigate. Held. It could issue directions to ensure the performance of a statutory duty by an investigating agency, developed the technique of continuing mandamus by which a court retains a matter and monitors compliance, and laid down directions to insulate the Central Bureau of Investigation and the Central Vigilance Commission from executive control, including a fixed two-year tenure for the Director and the selection process later given statutory form. Why it matters here is that it is the clearest example of a court supplying accountability machinery where the political process had not.

Accountability includes the right to know how a government behaves. In Common Cause v. Union of India, (2018) 5 SCC 1. Facts. A petition seeking recognition of a right to die with dignity and the validity of an advance directive. Held. The right to die with dignity is part of the right to life under article 21, that passive euthanasia is permissible subject to safeguards, and it laid down a detailed procedure for advance directives pending legislation. Why it matters here is narrower than the subject matter suggests: it is another instance of the Court laying down a regime that binds the executive until Parliament acts, and of the argument, made by dissenting voices in every such case, that this is accountability being supplied by the wrong organ.

And the ultimate accountability mechanism, dismissal of a government, is itself accountable. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, the nine-judge Bench held that the satisfaction under article 356 is subjective but conditioned rather than absolute, that a Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, and that the test of a government's majority is to be taken on the floor of the House and not in the Governor's assessment. Why it matters here is the floor test: it moves the question from an appointee's opinion to a countable vote, which is accountability in its most literal form.

Distinctions

What it does NOT mean

It does not mean these bodies are beyond criticism. The appointment of the Comptroller and Auditor General and of the Election Commissioners is by the executive, which is the standing weakness in the design, and it has been the subject of litigation and of legislation.

It does not mean the Public Service Commission's advice binds. It does not; what binds is the duty to explain in public why it was not taken.

It does not mean the courts are the primary mechanism. Three of the four operate through disclosure and votes, and the courts enter mainly where the mechanism has been disabled.

And it does not mean accountability is only about corruption. Audit reports on the effectiveness of expenditure, and questions in the House about policy, are accountability in exactly the same sense.

Quick revision

Four mechanisms. Political: articles 75(3) and 164(2), collective responsibility to the popular house, with article 75(5) requiring membership within six months. Financial: article 266, no appropriation from the Consolidated Fund except by law; article 267, the Contingency Fund for unforeseen expenditure; article 114, no withdrawal except under an appropriation made by law; article 148, the Comptroller and Auditor General, removable only as a Supreme Court judge, pay not variable to his disadvantage, ineligible for later office; articles 149 to 151, duties and reports to the legislature. Electoral: article 324, an independent Election Commission with the Chief Election Commissioner protected as a judge; articles 325 to 329 complete the scheme. Administrative: articles 315 to 323, the Public Service Commissions, whose advice is not binding but whose non-acceptance must be explained in a memorandum laid before the legislature. Vineet Narain: continuing mandamus and directions insulating the investigating agencies. S.R. Bommai: the floor test.

Test yourself

1. Name the four accountability mechanisms and one article for each. Political, article 75(3); financial, article 148; electoral, article 324; administrative, article 315.

2. List four devices that make the Comptroller and Auditor General independent. Removal only in the manner and on the grounds applicable to a Supreme Court judge; conditions of service not variable to his disadvantage after appointment; ineligibility for further office under the Union or a State; and reports laid before the legislature rather than given to the government.

3. What does article 323 require, and why is it interesting? That the annual report of a Public Service Commission be laid before the legislature together with a memorandum explaining any case in which the Commission's advice was not accepted, and the reasons. It is accountability by publicity rather than by prohibition, since the advice does not bind.

4. What is the floor test and which case established it? That the majority of a government is to be determined by a vote on the floor of the House rather than by the Governor's assessment: S.R. Bommai v. Union of India.

5. What is continuing mandamus? A technique developed in Vineet Narain by which a court, instead of disposing of a matter with a single direction, retains it and monitors compliance over time through periodic reports.

6. Why is an answer on constitutionalism incomplete if it mentions only rights and courts? Because most limits on a government operate before litigation: an appropriation that must be voted, an audit report the House can read, an election run by somebody the government cannot remove, and a Council of Ministers that can be voted out.