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A PROJECT REPORT ON

DOCTORINE OF ACCOUNTABILITY

Submitted to:

Submitted by:

Asst. Professor Priya Umbarkar

Aman Das

Faculty of Law

B.A. LL.B
Sem 4th

ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and we are extremely fortunate to have got this all along the completion of our
project work. Whatever we had done is only due to such guidance and assistance and we
would not forget to thank them.
We respect and thank Asst. Prof. PRIYA UMBARKAR, for giving us an opportunity to do the
project work in DOCTORINE OF ACCOUNTABILITY and providing us all support and
guidance which made us to complete the project on time. We are extremely grateful to her for
providing such a nice support and guidance.

DECLARATION
I hereby declare that the project work entitled DOCTORINE OF ACCOUNTABILITY
submitted to the MATS LAW SCHOOL, is a record of a work done by me under the guidance
of Asst. Prof. PRIYA UMBARKAR, Faculty of Law, MATS UNIVERSITY, and this project
work has not performed the basis for the award of any decree or diploma and similar project
if any.

AMAN DAS
B.A. LL.B.
SEM 4th

TABLE OF CONTENT
ACKNOWLEDGEMENT............................................................................................ 2
DECLARATION........................................................................................................ 3
ADMINISTRATIVE LAW............................................................................................ 5
NATURE AND SCOPE OF ADMINISTRATIVE LAW......................................................6
INDIAN ADMINISTRATIVE LAW................................................................................ 6
DOCTORINE OF ACCOUNTABILITY..........................................................................7
EVOLUTION OF DOCTRINE..................................................................................... 8
SCOPE OF PUBLIC ACCOUNTABILITY......................................................................8
CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY.............................................9
RIGHT TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY....................10
JUDICIAL REVIEW................................................................................................. 16
JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE.............................................17
Limitation on the power of review:......................................................................18
Conclusion........................................................................................................... 19

ADMINISTRATIVE LAW
Administrative law is the body of law that governs the activities of administrative
agencies of government. Government agency action can include rulemaking, adjudication, or
the enforcement of a specific regulatory agenda. Administrative law is considered a branch
of public law. As a body of law, administrative law deals with the decision-making of
administrative units of government (for example, tribunals, boards or commissions) that are
part of a national regulatory scheme in such areas as police law, international
trade, manufacturing,
the environment, taxation, broadcasting, immigration and transport.
Administrative law expanded greatly during the twentieth century, as legislative bodies
worldwide created more government agencies to regulate the increasingly complex social,
economic and political spheres of human interaction.
Many jurists have made attempts to define it, but none of the definitions has completely
demarcated the nature, scope and content of administrative law. Either the definitions are too
broad and include much more than necessary or they are too narrow and do not include all
essential ingredients. For some it is the law relating to the control of powers of the
government. The main object of this law is to protect individual rights. Others place greater
emphasis upon rules which are designed to ensure that the administration effectively
performs the tasks assigned to it. Yet others highlight the principal objective of
Administrative Law as ensuring governmental accountability, and fostering participation by
interested parties in the decision making process.

Ivor Jennings
Administrative Law is the law relating to the administration. It determines the organization,
powers and duties of the administrative authorities.

Kennith Culp Davis


Administrative Law is the law concerning the powers and procedures of administrative
agencies, including especially the law governing judicial review of administrative action.
In one respect, this definition is proper as it puts emphasis on procedure
followed by administrative agencies in exercising their powers. However, it does not include
the substantive laws made by these agencies. According to Davis, an administrative agency is
a governmental authority, other than a court and a legislature which affects the rights of
private parties either through administrative adjudication or rule-making.

NATURE AND SCOPE OF ADMINISTRATIVE LAW


According to Jain N Jain- Administrative law deals with the composition and powers of the
administrative authority, fixes the limits of the power of these authorities, prescribes the
procedure to be followed by these authorities in exercising these powers and control these
administrative authorities through judicial and other means. Administrative Law deals with
the powers of the administrative authorities, the manner in which the powers are exercised
and the remedies which are available to the aggrieved persons, when those powers are abused
by these authorities. The administrative process has come to stay and it has to be accepted as
a necessary evil in all progressive societies, particularly in a welfare State, where many
schemes for the progress of society are prepared and Administered by the Government. The
execution and implementation of this programme may adversely affect the rights of citizens.
The main object of the study of administrative law is to unravel the way in which these
administrative authorities could be kept within their limits so that the discretionary powers
may not be turned into arbitrary powers.
Schwartz divides Administrative Law in three parts;
1. The powers vested in administrative agencies;
2. The requirements imposed by law upon the exercise of those powers; and
3. Remedies available against unlawful administrative actions.

INDIAN ADMINISTRATIVE LAW


In India, The Constitution is supreme with discretionary powers at the other side in England
the parliament is supreme. Law enacted by the parliament is authoritative and fully
admired. No person can challenge the validity of such law but only Ultra Vires statute can
challenge under which it was taken1. Besides, Law enacted by the British parliament is the
highest form of law and prevails over every other form of Law 2. In our India on the other hand by
the written Constitution power of Judicial Review is on Supreme Court and High court the
same can be challenged as Ultra Vires3. Testimonies of the validity of such challenges are
also defined as,
1. The action must be taken in accordance with rules and regulations,
2. Rules regulation and parent acts are also to be consonance to the Constitution,
3. Rules must be in accordance with relevant with statutes,
11C.K. Thakwani, Lecture on Administrative Law. Introduction page. 14

2 Cheney v Conn(1986)1 AL LER 779 (1968) 1 WLR 242


3C.K. Thakwani, Lecture on Administrative Law, Introduction page. 14
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4. If challenge converted and accepted in Amendment, such amendment should be conformity


with Basic structure.

DOCTORINE OF ACCOUNTABILITY
Accountability refers to the process of holding persons or organisations responsible for
performance as objectively as possible. India, as a parliamentary democracy, has elected
legislatures that have oversight functions over the Executive and an independent judiciary
that can hold both the legislative and executive arms of the state accountable. It has a variety
of independent authorities and commissions that perform accountability functions vis--vis
different parts of the government. The electoral process, the ultimate accountability
mechanism in a democratic country, has performed well for over 50 years.
In a federal system like that of India, public accountability is a two way process involving
upward accountability and downward accountability. Upward accountability comes through
the governmental control over administrative authorities like power to dissolve them,
approval of budget, auditing of budgets etc. Downward accountability is to public which is
relatively weak and it comes primarily through their mandate in elections.
All is not well with public accountability in India. Formal accountability systems are put in
place for the most part, but they are not necessarily made to work. Many good laws have
been enacted, but they are not always enforced or monitored. Public agencies are given
mandates and funds, but their performance may not be properly assessed and suitable action
taken to hold them accountable. Public audits of accounts and parliamentary reviews are
done, but follow up actions may leave much to be desired. It is clear that the existence of
formal mechanisms of accountability does not guarantee actual accountability on the ground.
This paper analyses how this doctrine has evolved in light of judicial decisions in India. After
analysing various Apex Court decisions in this regard, the paper then focuses on Corruption
being the evil which is an impediment for good governance and public accountability. Also
the paper looks into the Right To Information act which has helped in making public officials
accountable for their acts and lastly two recent cases, Medical Council of India and
Commonwealth Games, have been discussed which show that much needs to be done in India
so that the public officials can be disciplined and India can become a corruption free and
transparent nation.
4

4 http://www.lawteacher.net/
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EVOLUTION OF DOCTRINE
The most important case which elaborated the scope of doctrine of public accountability is
A.G. Hong Kong v. Reid. 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 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. 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.
Affixing liability on the wrongdoer is the need of the hour. What this means is that the public
official needs to be held accountable for his actions. The Courts now award compensation as
well as impose exemplary costs for violation of persons fundamental rights and for the abuse
of power on the guilty public officer. The Apex Court in Nilabati Behera v. State of
Orissa held that compensation for violation of human rights and abuse of power is a
recognized claim under public law. The court held that the human rights of victims should be
given constitutional protection by availability of public law review under Article 226 and
Article 32. Judicial Activism in this field is evident from the fact that the court has evolved
the principle of polluter must pay in case of environmental pollution and that every
administrative authority shall be held to be accountable for the proper and efficient discharge
of its statutory duty.

SCOPE OF PUBLIC ACCOUNTABILITY


Public Accountability is a facet of administrative efficiency. Publicity of information
serves as an instrument for the oversight of citizens. By the same token it suggests that
law could become a means for fighting corruption. Therefore, a Government which
produces a trustworthy flow of information creates greater certainty and transparency.
This is especially appreciated by those who intend to invest in the Country. International
experience shows that countries that allow citizens access to public information have seen a
reduction in indicators of corruption and, consequently, substantial increases in administrative
efficiency.
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Public Accountability is a part of governance. It is the Government that is accountable to the


public for delivering a broad set of outcomes but more importantly it is the public service
consisting of public servants that constitutes the delivery mechanism. Therefore, the
accountability and governance arrangements between Government which acts as the principal
and the public service which is its agent, impact on the Governments ability to deliver and
on its accountability to the public. The challenge lies in ensuring that the public service is
geared to meet the expectations of the Government of the day and that public service is
neutral, whichever party is in power. When a Government department translates a
Governments policy into programmes, the success of that translation is very much dependent
on a clear understanding of and commitment to the outcomes that are sought. It is not
surprising that the history of accountability and governance within the public service has
shifted from measuring inputs to measuring outputs, to matching outputs, and identify
outcomes. The key which weakens accountability or the effectiveness of the Government or
the public sector is the lack of information.5

CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY


The problem of administrative corruption is perhaps as old as public administration itself.
The enormous expansion of the governmental bureaucracy, both in size and range, has
highlighted the problem of effective public checks and control on public administration. The
adoption of the goals of a social welfare state in almost all developing countries has resulted
in an extension of bureaucracy in size and number. The expansion of governmental tasks
results in the increase in the volume of work where administrative power and discretion can
be used. Where there is power and discretion, there is always the possibility of abuse.
The law commission had pointed out in its fourteenth report that there is a vast sphere of
administrative action in India in which the bureaucracy can exercise discretionary authority
without being accountable to citizens in any way in case of abuse of authority. There has also
been rise in administrative adjudication exhibited by the fact that there has been rapid
increase in number of administrative tribunals.
The problems of executive discretion, delegated legislation and administrative adjudication
are vitally connected with the problem of public accountability of administration.
The Central Bureau of Investigation (CBI) is the most important body which enforces
accountability. It was earlier under the Executive which was proving to be an impediment to
enforce accountability in higher echelons of Government. The Supreme Court separated CBI
from executive and vested its superintendence in the hands of Central Vigilance Commission
(CVC). Now CBI does not need prior approval of the Government to investigate corruption
cases. The court also gave several other directions to improve the functioning of the CBI and
to make it the most effective body to enforce transparency in the government functionaries.6

5 Governance and Accountability in the Public Sector, speech by Honble Lianne Dalziel,
2003 (www.scoop.co.nz).
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Prevention of Corruption Act, 1988 (PCA) is a salient legislation in the area of public
accountability which was enacted to ensure transparency in government functions. The Court
in JMM Bribery case held that the Members of Parliament and Members of Legislative
Assemblies are covered within the ambit of public servants under PCA. The court said that
these persons cannot claim immunity from prosecution under Article 105 for any offence
committed outside Parliament/Legislature. This judgment was however criticized on other
ground mainly that Article 105 is not an enabling provision for corruption. The purpose of the
immunity is legislative independence but giving or receiving bribes is not part of legislative
process.

RIGHT TO INFORMATION AS A TOOL FOR 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 a open Government, the
Supreme Court of India observed that the demand for openness in the Government is based
on the reason that democracy does no 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.
Way back in 1975 in the case of Raj Narain v. State of Uttar Pradesh, 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 case 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. The Court in 1997 in
Dinesh Trivedi v. Union of India held that to ensure the continued participation of the
people in the democratic process they must be kept informed of the vital decisions taken by
the government and the basis thereof.
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. 7

Right to information has already proved to be an effective instrument for combating


corruption in public service. The significant achievements of civil society organisations like
Parivartan in Delhi in collecting information regarding flow of public funds, dubious
6 www.lawteacher.net
7 www.lawteacher.net
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decisions etc. are examples of the power of information, but more significant aspect of the
experience is that much more needs to be done in this direction. According to Transparency
International, if India were to reduce corruption to the level that exists in the Scandinavian
countries, investment could be increased by 12% and the GDP growth rate by 1.5% per
annum. Access to information needs to be encouraged on this ground alone.
The right to information is defined in sec. 2(j) as a right to information accessible under
the Act which is held by or under the control of any public authority and includes a right to (i)
inspection of work, documents, records,
(ii) Taking notes, extracts or certified copies of documents or records,
(iii) Taking separate samples of material,
(iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any
other electronic mode or through printouts where such information is stored in a computer or
in any other device.
The Act applies both to Central and State Governments and all public authorities. A public
authority (sec. 2(h)) which is bound to furnish information means any
authority or body or institution of self-government established or constituted
(a) by or under the Constitution,
(b) by any other law made by Parliament,
(c) by any other law made by State Legislature,
(d) By a notification issued or order made by the appropriate Government and includes any
(i) body owned, controlled or substantially financed,
(ii) Non-government organization substantially financed.

CONSTITUTIONAL ASPECT OF THE RIGHT TO INFORMATION


Article 19(1) (a) of the Constitution guarantees the fundamental rights to free speech and
expression. The prerequisite for enjoying this right is knowledge and information. The
absence of authentic information on matters of public interest will only encourage wild
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rumours and speculations and avoidable allegations against individuals and institutions.
Therefore, the Right to Information becomes a constitutional right, being an aspect of the
right to free speech and expression which includes the right to receive and collect
information. This will also help the citizens perform their fundamental duties as set out in
Article 51A of the Constitution. A fully informed citizen will certainly be better equipped for
the performance of these duties. Thus, access to information would assist citizens in fulfilling
these obligations.

RIGHT TO INFORMATION IS NOT ABSOLUTE


As no right can be absolute, the Right to Information has to have its limitations. There will
always be areas of information that should remain protected in public and national interest.
Moreover, this unrestricted right can have an adverse effect of an overload of demand on
administration. So the information has to be properly, clearly classified by an appropriate
authority.
The usual exemption permitting Government to withhold access to information is generally in
respect of the these matters: (1) International relations and national security; (2) Law
enforcement and prevention of crime; (3) Internal deliberations of the government; (4)
Information obtained in confidence from some source outside the Government; (5)
Information which, if disclosed, would violate the privacy of an individual; (6) Information,
particularly of an economic nature, when disclosed, would confer an unfair advantage on
some person or subject or government; (7) Information which is covered by
legal/professional privilege, like communication between a legal advisor and his client and
(8) Information about scientific discoveries and inventions and improvements, essentially in
the field of weapons.
These categories are broad and information of every kind in relation to these matters cannot
always be treated as secret. There may be occasions when information may have to be
disclosed in public interest, without compromising the national interest or public safety. For
example, information about deployment and movement of armed forces and information
about military operations, qualify for exemption. Information about the extent of defence
expenditure and transactions for the purchase of guns and submarines and aircraft cannot be
totally withheld at all stages.

NEED FOR RIGHT TO INFORMATION


The Right to Information has already received judicial recognition as a part of the
fundamental right to free speech and expression. An Act is needed to provide a statutory
frame work for this right. This law will lay down the procedure for translating this right into
reality.
Information is indispensable for the functioning of a true democracy. People have to be kept
informed about current affairs and broad issues political, social and economic. Free
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exchange of ideas and free debate are essentially desirable for the Government of a free
country.
In this Age of Information, its value as a critical factor in socio-cultural, economic and
political development is being increasingly felt. In a fast developing country like India,
availability of information needs to be assured in the fastest and simplest form possible. This
is important because every developmental process depends on the availability of information.
Right to know is also closely linked with other basic rights such as freedom of speech and
expression and right to education. Its independent existence as an attribute of liberty cannot
be disputed. Viewed from this angle, information or knowledge becomes an important
resource. An equitable access to this resource must be guaranteed.
Soli Sorabjee stressing on the need of Right to Information aim at bringing transparency in
administration and public life, says, "Lack of transparency was one of the main causes for all
pervading corruption and Right to Information would lead to openness, accountability and
integrity".
According to Mr. P.B. Sawant, "the barrier to information is the single most cause responsible
for corruption in society. It facilitates clandestine deals, arbitrary decisions, manipulations
and embezzlements. Transparency in dealings, with their every detail exposed to the public
view, should go a long way in curtailing corruption in public life."8

RIGHT TO INFORMATION IN OTHER COUNTRIES


In recent years, many Commonwealth countries like Canada, Australia, and New Zealand
have passed laws providing for the right of access to administrative information. USA,
France and Scandinavian countries have also passed similar laws. US Freedom of
Information Act ensures openness in administration by enabling the public to demand
information about issues as varied as deteriorating civic amenities, assets of senators and
utilisation of public funds.
It is not only the developed countries that have enacted freedom of information legislation,
similar trends are seen in the developing countries as well. The new South Africa
Constitution specifically provides the Right to Information in its Bill of Rights--thus giving it
an explicit constitutional status. Malaysia operates an on-line data base system known as
Civil Services Link, through which a person can access information regarding functioning of
public administration. There is thus a global sweep of change towards openness and
transparency.

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In USA, the first amendment to the Constitution provided for the freedom of speech and
expression. The country had already passed the Freedom of Information Reform Act 1986,
which seeks to amend and extend the provisions of previous legislation on the same subject.
But this right is not absolute. Recently, the US Supreme Court struck down two provisions of
the Communications Decency Act (CDA), 1996, seeking to protect minors from harmful
material on the Internet precisely because they abridge the freedom of speech protected by
the first amendment. Moreover, the vagueness in the CDAs language, the ambiguities
regarding its scope and difficulties in adult-age verification, make CDA unfeasible in its
application to a multifaceted and unlimited form of communications such as Internet.
Sweden has been enjoying the right to know since 1810. It was replaced in 1949 by a new
Act which enjoyed the sanctity of being a part of the countrys Constitution itself. The
principle is that every Swedish citizen should have access to virtually all documents kept by
the State or municipal agencies.
In Australia, the Freedom of Information Act was enacted in December 1982. It gave citizens
more access to the Federal Governments documents. With this, manuals used for making
decisions were also made available. But in Australia, the right is curtailed where an agency
can establish that non-disclosure is necessary for protection of essential public interest and
private and business affairs of a person about whom information is sought.
Even the Soviets, under Mikhail Gorbachev, have realised that "the State does not claim
monopoly of truth any longer". Glasnost has cast away the cloud of secrecy and stresses the
priority of human values.
Even as steps are taken to ensure openness in matters affecting the public, there has to be a
greater sense of responsibility on the part of users of information in the media and elsewhere.
Journalists must ensure that they seek information in public interest and not as agents of
interested parties.
India has so far followed the British style of administration. In Great Britain, Official Secrets
Act, 1911 and 1989 are intended to defend national security by rendering inaccessible to the
public certain categories of official information. However, the government recognises that
access to information is an essential part of its accountability. A recent legislation governing
access to public information includes Local Government (Access to Information) Act, 1985;
the Environment and Safety Information Act, 1988, and the Access to Health Records Act
1990 are such laws. On the other hand, Data Protection Act, 1984; the Access to Personal File
Act; the Access to Medical Reports Act, 1988, and the Consumer Credit Act, 1974, all
provide some protection for different aspects of personal information.9

LANDMARK JUDGEMENTS

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The need for Right to Information has been widely felt in all sectors of the country and this
has also received judicial recognition through some landmark judgements of Indian courts.
A Supreme Court judgement delivered by Mr. Justice Mathew is considered a landmark. In
his judgement in the state of UP vs. Raj Narain (1975) case, Justice Mathew rules-In a
government of responsibility like ours, where all the agents of the 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 are entitled to know the particulars of every public transaction in all its bearing. Their
right to know, which is derived from the concept of freedom of speech, though not absolute,
is a factor which should make one wary when secrecy is claimed for transactions which can
at any rate have no repercussion on public security. But the legislative wing of the State did
not respond to it by enacting suitable legislation for protecting the right of the people.
According to Attorney General Soli Sorabjee - It was in 1982 that the right to know matured
to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India
(AIR) 1982 SC (149), popularly known as Judges case. Here again the claim for privilege
was laid before the court by the Government of India in respect of the disclosure of certain
documents. The Supreme Court by a generous interpretation of the guarantee of freedom of
speech and expression elevated the right to know and the right to information to the status of
a fundamental right, on the principle that certain unarticulated rights are immanent and
implicit in the enumerated guarantees.
The court declared - The concept of an open government is the direct emanation from the
right to know which seems to be implicit in the right of free speech and expression
guaranteed under article 19 (1) (a).
The Supreme Court of India has emphasised in the SP Gupta case (1982) that 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. In a country like India which
is committed to socialistic pattern of society, right to know becomes a necessity for the poor,
ignorant and illiterate masses.
In 1986, the Bombay High Court followed the SP Gupta judgement in the well-known case
Bombay Environmental Group and others vs. Pune Cantonment Board.
The Bombay High Court distinguished between the ordinary citizen looking for information
and groups of social activists. This was considered a landmark judgement concerning access
to information.10
Main points of resolution

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i.

The Right to Information should also be extended in respect of companies,


NGOs and international agencies whose activities are of a public nature and
have a direct bearing on public interest.

ii.

The law must contain strong, penal provisions against wilful and wanton
withholding or delay in supplying information or deliberately supplying
misleading or inaccurate information.

iii.

The law should contain an appeal mechanism of an independent nature to


provide reliable redress to any citizen dissatisfied with any decision of a public
authority under this law. In the present draft Bill, all appeals are to other
Government authorities.

iv.

The categories of information, which can be restricted or withheld by the


Government, are too wide in the draft Bill. In particular, the restriction on
disclosing internal notings and official correspondence between public
officials and offices has no justification whatsoever. In a democracy, people
have the right to know how and why a particular decision has been arrived at
and who made what recommendations with what justification. We do not
support the view that this will deter candour in the expression of views of
public servants. Honest public servants expressing their opinions honestly
cannot be deterred by the knowledge that their opinions will become known to
the people.

v.

Similarly the restriction on confidential communications between the State


and Centre and their agencies have no justification, unless they harm public
interest.

vi.

The restriction on disclosure of the record of discussions of Secretaries and


other public servants also needs to be removed.

JUDICIAL REVIEW
Judicial review is the doctrine under which legislative and executive actions are subject to
review (and possible invalidation) by the judiciary. A specific court with judicial review
power may annul the acts of the state when it finds them incompatible with a higher authority
(such as the terms of a written constitution). Judicial review is an example of check and
balances in a modern governmental system (where the judiciary checks the other branches of
government). This principle is interpreted differently in different jurisdictions, which also
have differing views on the different hierarchy of governmental norms. As a result, the
procedure and scope of judicial review may differ from country to country and state to state.

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Most modern legal systems allow the courts to review administrative acts (individual
decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence
permit). In most systems, this also includes review of secondary legislation (legallyenforceable rules of general applicability adopted by administrative bodies). Some countries
(notably France and Germany) have implemented a system of administrative courts which are
charged with resolving disputes between members of the public and the administration. In
other countries (including the United States, Scotland and the Netherlands), judicial review is
carried out by regular civil courts although it may be delegated to specialized panels within
these courts (such as the Administrative Court within the High Court of England and Wales).
The United States employs a mixed system in which some administrative decisions are
reviewed by the United States district courts (which are the general trial courts), some are
reviewed directly by the United States courts of appeals and others are reviewed by
specialized tribunals such as the United States Court of Appeals for Veterans Claims (which,
despite its name, is not technically part of the federal judicial branch). It is quite common that
before a request for judicial review of an administrative act is filed with a court, certain
preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most
countries, the courts apply special procedures in administrative cases.
The provisions of Article 13 are:
Article 13 (1) provides that all laws in force in the territory of India immediately before the
commencement of the Constitution of India, in so far as they are inconsistent with the
provision of Part III dealing with the fundamental rights shall, to the extent of such
inconsistency, be void. Article 13 (2) provides the State Shall not make any law which takes
away or abridges the fundamental rights and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
Article 245 makes it clear that the legislative powers of Parliament and of the State
Legislatures are subject to the provisions of the Constitution. Parliament may make laws for
the whole or any part of the territory of India and the legislature of State may make laws for
the whole or any part of the State. No law made by Parliament shall be deemed to be invalid
on the ground that it would have been extra-territorial operation. The State Legislature can
make law only for the State concerned and, therefore, the law made by the state Legislature
having operation outside the State would be beyond its competence and, therefore ultra vires
and void.

JUDICIAL REVIEW AS A PART OF BASIC


STRUCTURE
In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of
India the propounded the basic structure doctrine according to which it said the legislature
can amend the Constitution, but it should not change the basic structure of the Constitution,
The Judges made no attempt to define the basic structure of the Constitution in clear terms.
S.M. Sikri, C.J mentioned five basic features:
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1. Supremacy of the Constitution.


2. Republican and democratic form of Government.
3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive and the judiciary.
5. Federal character of the Constitution.
He observed that these basic features are easily discernible not only from the Preamble but
also from the whole scheme of the Constitution. He added that the structure was built on the
basic foundation of dignity and freedom of the individual which could not by any form of
amendment be destroyed. It was also observed in that case that the above are only illustrative
and not exhaustive of all the limitations on the power of amendment of the Constitution. The
Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that
Judicial Review in election disputes was not a compulsion as it is not a part of basic structure.
In S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J.,
relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that
judicial review was a basic and essential feature of the Constitution. If the power of judicial
review was absolutely taken away, the Constitution would cease to be what it was.
In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were
to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an
effective alternative institutional mechanism or arrangement for judicial review, it would be
violative of the basic structure and hence outside the constituent power of Parliament.
In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another
Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the
Constitution which excluded judicial review of the decision of the Speaker/Chairman on the
question of disqualification of MLAs and MPs, observed that it was unnecessary to
pronounce on the contention whether judicial review is a basic feature of the Constitution and
para 7 of the Tenth Schedule violated such basic structure.
Subsequently, in L. Chandra Kumar v. Union of India (1997) 3 SCC 261) a larger Bench of
seven Judges unequivocally declared:"that the power of judicial review over legislative action
vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution, constituting part of its
basic structure. Though one does not deny that power to review is very important, at the
same time one cannot also give an absolute power to review and by recognizing judicial
review as a part of basic feature of the constitution Courts in India have given a different
meaning to the theory of Checks and Balances this also meant that it has buried the concept
of separation of powers, where the judiciary will give itself an unfettered jurisdiction to
review anything everything that is done by the legislature.11

Limitation on the power of review:


The expansion of the horizon of judicial review is seen both with reverence and suspicion;
reverence in as much as the judicial review is a creative element of interpretation, which
serves as an omnipresent and potentially omnipotent check on the legislative and executive
branches of government. But at the same time there is a danger that they may trespass into the
powers given to the legislature and the executive.
11 http://www.mondaq.com
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One many say that if there is any limitation on judicial review other than constitutional and
procedural that is a product of judicial self-restraint. As justice Dwivedi empathically
observed, "Structural socio-political value choices involve a complex and complicated
political process. This court is hardly fitted for performing that function. In the absence of
any explicit Constitutional norms and for want of complete evidence, the courts structural
value choices will be largely subjective. Our personal predilections will unavoidably enter
into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal
certainty, an essential element of rule of law."
The above observations also reveal another assumption to support an attitude of self-restraint,
viz., and the element subjective ness in judicial decision on issues having socio-political
significance. When one looks at the decisions of the Supreme Court on certain questions of
fundamental issues of constitutional law one can see that there is a sharp division among the
judges of the apex court on such basic questions of power of the Parliament to amend the
Constitution, federal relations, powers of the President etc. This aptly demonstrates the
observation of the judge. This would mean that though there has been expansion of powers of
judicial review one cannot also say that this cannot be overturned.
Judicial self-restrain in relation to legislative power manifests itself in the form the there is a
presumption of constitutionality when the validity of the statute is challenged. In the words of
Fazl Ali, "the presumption is always in favour of the constitutionality of an enactment, and
the burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles"
In applying the presumption of constitutionality the Courts sometimes apply an
interpretational device called reading down. The essence of the device is that "if certain
provisions of law construed in one way would make them consistent with the constitution,
and another interpretation would render them unconstitutional, the court would lean in favour
of the former construction."22 But all this depends on the outlook and values of the judge.23
When it come judicial review of administrative action though the presumption of validity is
not so strong in the case of administrative action as in the case of statutes. Still, when the
legislature expressly leaves a matter to the discretion of an administrative authority the courts
have adopted an attitude of restraint. They have said we cannot the question the legality of the
exercise of discretionary power unless and until it is an abuse of discretionary power (which
includes mala fide exercise of power, exercising the power for an improper motive, decision
based on irrelevant considerations or in disregard of relevant consideration, and in some cases
unreasonable exercise of power) and non-exercise of discretion ( which come when power is
exercised without proper delegation and when it is acted under dictation).
The relevant considerations which should make the judicial choice in favour of activism or
restraint are the policy and scheme of the statute, the object of conferring discretionary
powers, the nature and scope of the discretion, and finally, the nature of the right and interests
affected by the decision. Any impulsive move to activism without a serious consideration of
19

these factors may only be viewed as undesirable. Judicial activism, being an exception, not
the general rule, in relation to the control of discretionary power, needs strong reasons to
justify it. In the absence of such strong support of reasons the interventionist strategy may
provoke the other branches of Government may retaliate and impose further limitations on
the scope of judicial review.

Conclusion
Accountability is an essential part of the rule of law. It is essential for another reason, as in
the earlier editions of Dicey, of course modified in later editions, referring to John Wilkes's
case, that "conferment of any discretion tends to arbitrariness and therefore there is
something inconsistent with the rule of law." But then, as time passed, it was realized that
conferment of some discretion for the purpose of application to the facts of a given case is
something you cannot do away with. The area of discretion should be the minimum possible,
and set norms, standards or guidelines should regulate it, so that it does not tend to become
arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary
whenever the occasion arises.
The growth of judicial review is the inevitable response of the judiciary to ensure proper
check on the exercise of public power. Growing awareness of the rights in the people; the
trend of judicial scrutiny of every significant governmental action and the readiness even of
the executive to seek judicial determination of debatable or controversial issues, at times,
may be, to avoid its accountability for the decision, have all resulted in the increasing
significance of the role of the judiciary. There is a general perception that the judiciary in this
country has been active in expansion of the field of judicial review into non-traditional areas,
which earlier were considered beyond judicial purview.12
Accountability is one of those golden concepts that no one can be against. It is increasingly
used in political discourse and policy documents because it conveys an image of transparency
and trustworthiness. However, its evocative powers make it also a very elusive concept
because it can mean many different things to different people, as anyone studying
accountability will soon discover. This paper nevertheless tries to develop an analytical
framework for the empirical study of accountability arrangements in the public domain. It
starts from a narrow, relational definition of accountability and distinguishes a number of
indicators that can be used to identify and classify accountability arrangements. Furthermore,
it develops three perspectives to assess and evaluate accountability arrangements in the public
domain.13

12 http://www.mondaq.com/
20

BIBLOGRAPHY

www.google.co.in
www.rrtd.nic.in
indialawyers.wordpress.com
www.legalservicesindia.com

13 This paper is an adapted and extended version of a chapter on public


accountability which will be published in E. Ferlie, L. Lynne & C. Pollitt (eds.), The
Oxford Handbook of Public Management, Oxford: Oxford University Press 2005
and a Dutch paper which was published in: W. Bakker & K. Yesilkagit (red.),
Publieke verantwoording, Amsterdam: Boom 2005. I thank Paul t Hart, Peter
Mair, Thomas Schillemans, and Marianne van de Steeg for their valuable
comments on previous versions of this paper.
21

www.manupatrafast.com
www.lawteacher.net
www.lawnotes.in
supremecourtofindia.nic.in

BOOKS
Administrative Law, Fifth Edition (1991) By Dr. S. P. Sathe
Administrative law, Eighth Edition (2012) By I.P. MASSEY
Administrative law, Fifteenth Edition (2012) By U.P.D KESARI

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