Q.

DOCTRINE OF PUBLIC ACCOUNTABILITY

INTRODUCTION

Accountability is where one can take the responsibility of the action done. In
every democratic society it is important that the civilians in the society know
about the working of the government. The doctrine of public accountability is
based on the principle that the responsibilities given to the public authorities is
on the public trust and must be exercised for the benefit of public. The motive
of this doctrine is to create and maintain transparency between the public and
government.

The idea of public accountability was introduced through the judicial

pronouncements. Public accountability is a great matter of great concern and
an issue to be given utmost importance as all the three organs of the
government that are legislative, executive and judiciary comes under the ambit
of public authority.

Public accountability is where the public authorities are answerable to the

public for the actions done by them. The purpose of having authorities answer
publicly for their responsibilities is to let citizens make reasonably informed
decisions about the safety and fairness of authorities’ intentions.

ORIGIN OF THE DOCTRINE

The origin and development of this doctrine is through the case Hong Kong v
Reid (1993). This is the most renowned decision of the privy council.In this
case, Reid who was a Crown prosecutor took bribes to suppress certain
criminal cases and purchased properties with the bribe money. The Hong Kong
Government claimed these properties stating that the owners thereof are
constructive trustees of the Crown. The Court upheld the claim and observed
that a gift taken by a public officer as an incentive for breach constituted a
bribe. The fiduciary owes the money to the person to whom he owed that duty
and he hold the bribe acquired therewith on constructive trust for that person.
This case also applies to situations where fiduciary relationship does not exist.

The Supreme Court of India followed this case in A.G. of India v. Amritlal
Prajivandas(1994) where court upheld the validity of SAFEMA act which
provided for forfeiture of properties gained by smuggling or other malafide
activities.
The scope of this Doctrine was amplified in DDA v. Skipper Construction
Co(1990)case where Court stated that wherever the general public is
defrauded by illegal acquire of properties, the Court can pass necessary orders
irrespective of the fact that there was a fiduciary relationship or not or
whether a holder of public office was involved or not. The court further
pronounced that courts in India are not only courts of law but also courts of
equity.

NEED OF THE DOCTRINE

Bribery in the public administration is an insidious practice, which undermines

the establishments of any enlightened society. Corruption, bribery is pretty
much as old as public administration itself.

The 14th report of the law commission highlighted the amount of

administrative action which were unseen as consisted discretionary powers. In
the report the focus was also on the administrative adjudication as there was
an increase in the number of administrative tribunals. The numbers were
alarming and needed a resolution.

In India Central Bureau of Investigation (CBI) is considered the most important

government organization that imposes public accountability. Earlier CBI was
under executive but that outshined the purpose of CBI to enforce
accountability in the government itself due to the absence of independence,
hence it was separated by the supreme court and CBI was brought under the
realm of Central Vigilance Commission. It was directed by the court that the
purpose of CBI should be maintained and to make it the prime body of
enforcing transparency in government functions.

The issue of corruption was highlighted by the Sanatham Committee. It was

seen that a high percent of people witnessed to pay a certain sum of money
transaction of purchase, construction, sale, and other businesses on the
government’s behalf. This amount was to be distributed among officials in
agreed proportions. Here was the need to make rules against such practices.

RIGHT TO INFORMATION AS A TOOL FOR ENFORCING PUBLIC

ACCOUNTABILITY

An important factor responsible for the absence of popular participation in the

governance process is the lack of information. Commenting on the need for an
open Government, the Supreme Court of India observed that the demand for
openness in the Government is based on the reason that “democracy does not
consist merely in people exercising their franchise once in five years to choose
their rulers and once the votes are cast, then returning into passivity and not
taking any interest in the Government.”

In 1975 in the case of Raj Narain v. State of Uttar Pradesh(1975) held that:The
Supreme Court of India observed that in a government like ours, where all the
agents of the public must be responsible for their conduct, there can be but
few secrets. The people of the country have a right to know any public act.

In 1982 in the S.P. Gupta vs Union of India(1981) held that:The Court

emphasized that an open Government is the new democratic culture of an
open society towards which every liberal democracy is moving and our country
should be no exception.

RTI act came into force from the year 2005, so 1975 to 2005 Supreme Court
gave judgments based on the Right to know. RTI is an effective tool to play a
role in administrative because it is under the citizens’ power. RTI applies to all
governmental bodies and also to the judiciary and legislature.

RTI act is landmark legislation and covers all central, state and local
governmental bodies and in addition to the executive it also applies to the
judiciary and the legislature. The term information under the act covers right
to inspect work, documents and records held by the government and allows
for the extraction of certified samples for verification.

The RTI Act is based on the principle of ““minimum disclosure” and “minimum
exceptions” i.e. revealing almost all information and making an exception in
cases where the information is absolutely necessary to be kept confidential.”
The only way for government offices to deal with frivolous applications is by
voluntarily making all the information available to the public.

RTI has been the most effective in tackling and eradicating corruption. The best
example is where “Parivartan”, a civil society in Delhi collected all the
necessary information about the flow of public funds and how this information
was useful in holding the government accountable
Q. CONSTITUTIONAL BASIS OF RTI
The right to information is a fundamental right under Article 19 (1) of the
Indian Constitution. In 1976, in the Raj Narain vs the State of Uttar
Pradesh(1975) case, the Supreme Court ruled that Right to information will be
treated as a fundamental right under article 19. The Supreme Court held that
in Indian democracy, people are the masters and they have the right to know
about the working of the government.
Thus the government enacted the Right to Information act in 2005 which
provides machinery for exercising this fundamental right. The act is one of the
most important acts which empowers ordinary citizens to question the
government and its working. This has been widely used by citizens and media
to uncover corruption, progress in government work, expenses related
information, etc
Objectives of the RTI Act

1. Empower citizens to question the government.

2. The act promotes transparency and accountability in the working of the
government.
3. The act also helps in containing corruption in the government and work
for the people in a better way.
4. The act envisages building better-informed citizens who would keep
necessary vigil about the functioning of the government machinery.

Important provisions under the Right to Information Act, 2005

 Section 2(h): Public authorities mean all authorities and bodies under
the union government, state government or local bodies. The civil
societies that are substantially funded, directly or indirectly, by the
public funds also fall within the ambit of RTI.
 Section 4 1(b): Government has to maintain and proactively disclose
information.
 Section 6: Prescribes a simple procedure for securing information.
 Section 7: Prescribes a time frame for providing information(s) by PIOs.
 Section 8: Only minimum information exempted from disclosure.
 Section 8 (1) mentions exemptions against furnishing information under
the RTI Act.
 Section 8 (2) provides for disclosure of information exempted under the
Official Secrets Act, 1923 if the larger public interest is served.
  Section 19: Two-tier mechanism for appeal.
 Section 20: Provides penalties in case of failure to provide information
on time, incorrect, incomplete or misleading or distorted information.
 Section 23: Lower courts are barred from entertaining suits or
applications. However, the writ jurisdiction of the Supreme Court of
India and high courts under Articles 32 and 226 of the Constitution
remains unaffected

CONSTITUTIONAL BASIS AND PROVISONS

The Indian constitution has an array of basic and inalienable rights termed as
Fundamental rights contained in Chapter III. These include the right to equal
protection of the laws and the right to equality before the law, the right to
freedom of speech and expression and the right to life and personal liberty.
These are backed by the right to Constitutional Remedies under Article 32. The
legal position with regard to the right to information has developed through
several Supreme Court decisions given in the context of fundamental rights.
The legal discourse on the right to information started with petitions of the
press to the Supreme Court for enforcement of certain logistical implications of
the right of freedom of speech and expression such as challenging
governmental orders for control of newsprint.

ARTICLE 19(1)(a)

This provision guarantees the fundamental right to free speech and expression,
which includes within it the right to access information. The pre-requisite for
enjoying this right is knowledge and information. Thus the right to information
becomes a constitutional right as the right to free speech also guarantees right
to receive and collect and information. Article 19(2) permits the State to make
such laws as to impose reasonable restrictions on the exercise of the freedoms
guaranteed under this provision on grounds such as security of the state,
sovereignty and integrity of India and other grounds as enumerated in the
provision.

ARTICLE 21

This article talks about right to life and personal liberty, which includes the
right to know about things that affect our lives. The expression ―life and
personal liberty‖ is a broad term, which includes within itself variety of rights
and attributes. The Supreme Court read into this article as a broad right to
include right to know within its purview. The apex court held that ―right to
know is a necessary ingredient of participatory democracy……... It is wide
enough to expand to a full range of rights including the right to hold a
particular opinion and the right to sustain and nurture that opinion. It confers
on all persons a right to know which includes right to information.

ARTICLE 32

This article guarantees a right to constitutional remedies on the situation of a

violation of the fundamental right of any citizen. The constitution also imposes
certain duties upon the citizens under Article 51 A. A fully informed citizen is
better equipped for the performance of these duties. RTI is not specifically
mentioned in the Seventh Schedule of the Constitution, and does not fall under
any of three subject lists of the Constitution. As such it is a residuary matter
and the power to legislate on such matters rests with the Central government.

Article 51 A of the Constitution imposes certain duties upon the citizens and a
citizen with full information is better equipped for the performance of these
duties. Thus right to information is an inherent part of Right to Freedom of
Speech and Expression under article 19(1) (a) and the Right to Life and
Personal Liberty under article 21 of the constitution.

RTI: FUNDAMENTAL AS A RIGHT: SOME IMPORTANT CASES TO LOOK INTO

Bennett Coleman & Co. v Union of India The judges in this case remarked; ―it
is indisputable that by freedom of the press meant the right of all citizens to
speak, publish, and express their views……Freedom of speech and expression
includes within its compass the right of all citizens to read and be informed
State of U.P. vs Raj Narain case (1975) 4 SCC 428 (landmark case) It was held
that in a government of responsibility like ours, where all the agents of public
must be responsible for their conduct, there can be but few, secrets. The
people of this country have a right to know every public act, everything that is
done in a public way, by their public, functionaries. They all entitled to know
the particulars of every public transaction in all its bearing.
People's Union for Civil Liberties vs Union of India (AIR 2004 SC 1442) Justice
S.B. Sinha and Justice B.M. Khare It was held that Right to Information is a facet
of the freedom of 'speech and expression' as contained in article 19(1) (a) of
the constitution of India. Right to Information, thus, indisputably is
Fundamental Right.
Govt. of India vs The Cricket Association of Bengal (1995) 2 SCC 161. The
Supreme Court says that, the freedom of speech and expression includes right
to acquire information and disseminate it. It enables people to contribute to
debate on social and moral issues. Right to freedom of speech and expression
means right to education, to inform, to entertain and right to be educated,
informed and entertained. Right to telecast is, therefore, within the ambit of
Article 19 (1) (a)

S. P. Gupta v. Union of India This case is popularly known as Judges Transfer

case, Bhagwati, J. had advised in the landmark case that it is essential for the
people to have as much information about governmental operations as
possible. Participation in government by the people is regarded, as an
important aspect of democracy and people cannot participate unless they have
information as to what is going on in the country