Constitutional Accountability Final

NATIONAL LAW UNIVERSITY, ORISSA

CONSTITUTION ACCOUNTABILITY:YET

ANOTHER MYTH

SUBMITTED BY SOUMEN MOHANTY, UTKARSH RAVI & AYAN DUTTA

CONTENTS1. INTRODUCTION 22. STATEMENT OF PROBLEM 33. RESEARCH METHODOLOGY 44. SCOPE AND LIMITATION 55. RESEARCH QUESTIONS 56. CHAPTERIZATION 57. HYPOTHESIS 58. CONSTITUTIONAL ACCOUNTABILITY 69. LEGISLATIVE ACCOUNTABILITY 710. EXECUTIVE ACCOUNTABILITY 1711. JUDICIAL ACCOUNTABILITY 2512. CONCLUSION 3213. BIBLIOGRAPHY 33

CONSTITUTIONAL

ACCOUNTABILITY: YET

ANOTHER MYTH

INTRODUCTION

The Constitution of India is product of history's most critical period and at the same time

privileged one due to exposure to varieties of situations and legal documents like U.N.

Charter, Universal Declaration of Human Rights and October Revolution in China. The

Constituent Assembly met on 9th December 1946 and after two years eleven months and

eighteen days the draft Constitution was adopted by the Assembly on 26th of November,

19491.

It is obvious that dignity of the individual being a core value, and the aim of a welfare state

through human development being fundamental to governance, the essence of constitutional

governance is emphasis on human rights, and that is our constitutional philosophy. The

enactment of Article 51A – Fundamental Duties, indicates the emphasis on the participatory

role of the people in governance to make it truly representative in character. The bond

between Fundamental Rights, Directive Principles and Fundamental Duties has also been

judicially recognized in India by resort to some Directive Principles and fundamental duties

to enlarge the content and scope of some Fundamental Rights, namely, right to equality

(Article 14) and right to life (Article 21).

It is worth recalling the ‘standards in public life’ and the seven principles recommended by

the Nolan Committee in England, which are:

“1. Selflessness: Holders of public office should take decisions solely in terms of the

public interest. They should not do so in order to gain financial or other material

benefits for themselves, their family, or their friends.

1 Reforming the IndianConstitution : Some Suggestions by Dr.Surya Narayan Misra available in orissagov.nic.in/e-magazine/Orissareview/jan2004/.../chapter3.pdf

2. Integrity: Holders of public office should not place themselves under any financial

or other obligation to outside individuals or organisations that might influence them in

the performance of their official duties.

3. Objectivity: In carrying out public business, including making public appointments,

awarding contracts, or recommending individuals for rewards and benefits, holders of

public office should make choices on merit.

4. Accountability: Holders of public office are accountable for their decisions and actions to

the public and must submit themselves to whatever scrutiny is appropriate to their office.

5. Openness: Holders of public office should be as open as possible about all the

decisions and actions that they take. They should give reasons for their decisions and

restrict information only when the wider public interest clearly demands.

6. Honesty: Holders of public office have a duty to declare any private interests

relating to their public duties and to take steps to resolve any conflicts arising in a way

that protects the public interest.

7. Leadership: Holders of public office should promote and support these principles by

leadership and example.”

The significant feature of our constitutional governance is the accountability of all public

men for which there is need of an effective mechanism for enforcement. The nature of

mechanism may vary, depending on the level at which it has to be applied, but the basic

principle in a republican democracy of accountability of every public functionary to the

people must be adhered to2.

STATEMENT OF PROBLEM“Constitution is for a real union of the Indian people, built on the basic concept of sovereignty of the people, to ensure them Justice. That is the real spirit of the Constitution.”

- Sardar Vallabh Bhai Patel

All of our public officials, particularly every federal and state judge, politicians and other

executives in India, takes an oath of office pledging to uphold the Indian Constitution. The

main concern of Constitutional Accountability is to hold public servants accountable to their

oath. Text and history are the foundational considerations in judging accountability to the

Constitution.

2 nhrc.nic.in/Documents/DM_Lecture-II.pdf

While having such a lengthy and of course, a good Constitution we had failed to check the

transparency and accountability of government agencies – legislative, judiciary and executive

– is of crucial importance.

The founding fathers of the Indian constitution who granted more rights to the people without

balancing them with their duties, perhaps did not foresee the emergence of present political

environment, wherein the political players of various segments in the country are more

interested in fulfilling their individual aspirations than the aspirations of the people.

In some respects, the constitution, impressive though it is, has failed to translate noble

principles into tangible, practical instruments. This glaring inadequacy is seen in dispensation

of justice, protection of basic liberties, enforcement of bureaucratic accountability and

appointments and accountability of constitutional functionaries.

That is not surprising, considering that the Constituent Assembly which drafted and adopted

the Constitution was, in the words of Granville Austin, “a one-party body in an essentially

one-party country. The Assembly was the Congress and the Congress was India”.

Dr.B.R.Ambedkar rightly said that the constitution is only as good as the men and women

who operate it. Each generation has the benefit of experience of the past and should have the

capacity and the right to build upon the foundations of this experience.

RESEARCH METHODOLOGY

CONCEPTUAL FRAMEWORK AND METHODOLOGY

This is a descriptive-cum-analytical research with emphasis to the facts highlighting the

present scenario of absence of any rigid reform on accountability. In spite of the procedural

accountability present in the Constitution, there are flaws at the macro level. Therefore, the

non-compliance with the procedures is the actual focus. The research is being conducted on

the politico-legal environment along with the fallacies present in the system.

In order to conduct this research, the primary source of information from where the data has

been are research papers, books and lectures by eminent personalities. The secondary source

of information is the consultations with our professors.

OBJECTIVE OF THE STUDY

1. To find out the scope of accountability in our Constitution.

2. To find out how far the accountability, as mentioned in our constitution, is

implemented.

3. To investigate how does the inter-organ control help in holding the various wings of

the Constitution accountable.

4. To explore the escape route from the accountability enforced.

5. To find out how the accountability can be improved.

SCOPE AND LIMITATION

The present study deals from the legal point of view with the Political Situation,

Constitutional Structure, the powers of certain posts which are accountable to the constitution

and in what way. The research has been basically restricted to the provisions allotted in the

Constitution and the escape routes from accountability.

RESEARCH QUESTIONS1. What is accountability?

2. How is the constitution accountable to the public?

3. To what extent have the three wings (Executive, Legislature and Judiciary) of the

constitution improved its accountability?

4. How has the inter-organ control helped in maintaining accountability?

5. How far have we been successful in enforcing accountability?

CHAPTERIZATIONCHAPTER ONE: This chapter deals with the understanding of the Constitutional

Accountability starting from the basic knowledge of the word accountability.

CHAPTER TWO: This chapter explores the areas of Legislative Accountability, how it is

accountable to the people and the inter-organ control present in the Constitution.

CHAPTER THREE: This chapter deals with the scope of Executive Accountability, how it

is accountable to the Legislature and how does it escape from being held accountable.

CHAPTER FOUR: This chapter focuses on the various provisions of Judicial

Accountability in the Constitution, how the accountability becomes a myth and the various

methods by which they can improve the accountability.

HYPOTHESISAccountability is essential for the efficient working of the three wings of the Constitution else

it slacks the pace of the work and even bring up flaws in administering justice.

WHAT IS CONSTITUTIONAL ACCOUNTABILITY?

Accountability is a concept in ethics with several meanings. It is often used synonymously

with such concepts as answerability, enforcement, responsibility, blameworthiness, liability

and other terms associated with the expectation of account-giving.

Accountability is defined as “A is accountable to B when A is obliged to inform B about A’s

(past or future actions and decisions, to justify them, and to suffer punishment in the case of

eventual misconduct.”

In leadership roles, accountability is the acknowledgment and assumption of responsibility

for actions, products, decisions, and policies including the administration, governance and

implementation within the scope of the role or employment position and encompassing the

obligation to report, explain and be answerable for resulting consequences3.

Constitutional Accountability is largely met by ensuring the legality and probity of executive

actions. Thus the interpretation of constitutional accountability in Westminster government

has been overwhelmingly legalistic and technical, rather than performance related, with

ministerial responsibility providing the face of constitutional accountability. Constitutional

accountability requires government to honour the Constitution both in its express provisions

and in its intent. It provides the bedrock of all other forms of accountability. Politicians have

responded to the onerous nature of constitutional accountability by attempting to shift many

of the sources of financing of government services from budget dependence to self-

sufficiency. By reducing government dependence on the budget and the constitutional

protections that come with it, they are provided with greater financial freedom and the ability

to reduce their exposure to adverse reactions to executive actions and decisions. While

governments attempt to dilute, although not entirely escape, their constitutional

accountability, a compensatory relocation of accountability becomes necessary4.

In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential

to avert disaster for any democratic system. The accountability must be comprehensive to

include not only the politicians, but also the bureaucrats, judges and everyone invested with

public power. Power and position in a democracy come attendant with responsibility, and

every incumbent of a public office must remain constantly accountable to the people, who are

the repository of political sovereignty.

3 http://www.policewatchindia.org/bwatchf_001.html4 Government By Fiat: Retreat From Responsibility by Warwick Funnell

http://en.wikipedia.org/wiki/Products

http://en.wikipedia.org/wiki/Administration_(business)

LEGISLATIVE ACCOUNTABILITY

Legislative Accountability, in a Parliamentary system, unlike the Presidential system, lays

emphasis on accountability. According to the scheme of our Constitution, an indirect

Separation of Power exists in India, which means a balance has been made between the

different components of government i.e. between Legislature, Judiciary and Executive. The

primary function of Legislature is to frame laws. Whenever, Legislature tries to shift this

balance of power towards itself then Doctrine of Colourable Legislation is applied to take

account of Legislative Accountability. Though the different components of government are

supreme in itself but still they are accountable because in India indirect separation of power

exists i.e. distribution of power with proper checks and balances. Doctrine of Colourable

Legislation states, “Whatever legislature can’t do directly, it can’t do indirectly”. By

applying this principle the fate of the impugned legislation is decided.

Legislative Accountability is nowhere directly contemplated in Constitution of India but can

be inferred from the practice that we are following from a number of years.

Legislative Accountability means excessive secrecy and open abuse of the public trust is not

tolerated. There can be two types of Legislative Accountability.

1. Legal Accountability

2. Moral Accountability

Though when Legislature is given such a power obviously it is morally accountable

but when we say Legislature is Legally Accountable more than that of Morally Accountable,

then Doctrine of Colourable Legislation comes into play.

LEGISLATIVE ACCOUNTABILITY: MEANING, AIM AND OBJECTIVE

Before touching upon the aspect of legislative accountability it is important to decipher firstly

what is accountability. Accountability is the mechanism by which the concern authority is

explicable for account of his conduct. The accountability is better if extracted by the authority

from himself or rather say by his inner consciousness and not by legal means but this

mechanism is absconding from India since long back. It has been increasingly argued that

democratic governance as a whole implies an attention to the process of governance in all

institutions of society. Governance is only partly the realm of agencies and institutions of the

government. While having such a lengthy and of course, a good Constitution we had failed to

check the transparency and accountability of government agencies – legislative, judiciary and

executive – is of crucial importance. This is where serious public service reform in the design

and functioning of bureaucracy, and appropriate judicial reform in the manner in which

justice is delivered, is long over-due in India. We focus on the nature and effectiveness of

accountability relationships between citizens on the one hand, and Legislature on the other.

Citizens grant law framing powers to the Legislature. They entrust it with responsibility for

critical decisions about the design and implementation of public policy, and use of public

funds. In turn, citizens want to guard against abuse by the Legislature of these powers. They

also want to ensure that the Legislature uses its power wisely, effectively and efficiently.

While there would be innumerable reasons, a major factor for the deterioration has been the

progressive loss of ideology and erosion of values among the political leadership. Indira

Gandhi’s resolve to stay in power at any cost, followed by the enforcement of the Emergency

(1975-77), marked the dilution of the Cabinet system, and the beginning of the virtual

abrogation of the rule of law. The ascendancy of extra legal elements in decision-making and

the emergence of groups of unprincipled politicians and rogues and “committed” civil

servants led to wanton exercise of authority which, protected by the highest echelons, led to

encouragement of unaccountability and resort to corrupt practice.

In India, Legislature is supreme but not sovereign. The principle of legislative supremacy had

both a positive and a negative aspect. On the positive side, it meant that all Acts of the

Parliament, whatever their purpose, would be obeyed by the Courts. On the negative side, it

meant that there was “no person or body who can…..make rules which override or derogate

from an Act of parliament”. The Rule of Judicial Obedience is in one sense a rule of common

law, but in another sense – it applies to no other rule of common law – it is ultimate political

fact upon which the whole system of legislation hangs. Legislation owes its authority to

legislation. In this regard H.L.A Hart was of the opinion that the rule of parliamentary

supremacy is part of what he terms as “Primary Rules of Recognition”. For Hart legal system

is a combination of Primary and Secondary Rules. Primary rules are rules of obligation while

secondary rules are dependent upon primary rules and are rules about primary rules. These

secondary rules provide that human beings may by doing or saying certain things introduce

new rules of the primary type, extinguish or modify old ones or in various ways determine

their incidence or control their operation. While primary rules impose duties, secondary rules

confer power, public or private. Secondary rules are necessary to cure the defects which a

simple social system may have to face due to static nature of the primary rules, their

uncertainty and their inefficiency regarding dispute resolution. This is deployed by the courts

as a means of identifying what are valid rules of law.

In 17th Century in Dr. Bonhams Case the House of Lords was of the opinion that “the

common law had the power to control Acts of Parliament and can act as a check on the

Legislative Accountability. The circumstances in which this might happen where when an

Act was against common right and reason, or repugnant, or impossible to be performed.”

The condition in India is not very much different from this. In India, absolute democracy

exists. This means in every case, the people of the country select their representative and of

course after becoming a part of legislature, that representatives are legally as well as morally

accountable to the people and looking this in whole, we can say that legislature is

accountable. The primary function of Legislature is to frame the laws, so the accountability I

am dealing here is accountability with respect to the laws framed by the Legislature.

The challenge for ‘governance’ in India, in practice, is to move towards a new set of

standards. From an elite-led model to a mass base approach is quite a shift: a shift from an

emphasis on national coherence to local relevance and initiatives, from a system of one-

way accountability to the state to a process of mutual accountability to citizens. This requires

a total culture shift in Indian governance. Such a shift, difficult and contentious as it may be,

is the needed direction to move ‘governance to where people matter’ in India.

In India, though nowhere Legislative Accountability is contemplated under Constitution

directly, but there is provision under which this can be traced. Under Chapter 5, Art. 148 of

the Constitution of India provision regarding Comptroller and Auditor-General of India has

been made under which to the some extent legislature is made accountable. With this Article

149 describes about the Duties and powers of the Comptroller and Auditor-General , which

generally take account of accounts of the Union and of the States. Then the Comptroller and

Auditor – General of India, prepares a report wherein, he describes about the expenditures

and money spent by the Union and the State and also recommends some suggestion in this

regard. Thus, this is a mechanism by which the accountability of legislature with regard to the

expenditure made by the State and Union is determined. The objective of

legislative accountability in India has been to fulfil legislative mandates for financial

reporting and control over public exchequer through the mechanism of the budget and

finance and account rules and to make sure that people are getting justice by the legislations

made by him. Government accounting in India has fulfilled this traditional role exceptionally

well. However, it could play a more active part in overall management of Government

finances and in enabling easy evaluation of the economy, efficiency and effectiveness of

Government programs. Ideally, an accounting system should assist not only in the evaluation

of results but also in the selection of projects and indeed in strengthening the accountability

mechanism in a democracy. Such a system should be user friendly so that the public can

judge the financial performance of a Government through disclosures made in its

accounts. Legislature is made Supreme or can say sovereign while using Plenary Power of

Constitution because writ of Mandamus doesn’t lie against it but is made that Legislature

cannot deviate from the constitutional mandates while using this power. In this case there

would be moral accountability. As already stated, Legislative Accountability can be classified

under two heads: -

1. Moral Accountability

2. Legal Accountability

As far as moral accountability is concerned, the representatives had been passionated with the

faith and trust. So, they are morally accountable. This can be understood by taking a simple

example, a policeman is responsible to fulfil his duties not because he is legally entitled to do

so but because he is policeman and is protector of society and is aware of legal as well as

moral concerns about him.

A report should be made by the Legislature identifying any Federal mandate in it and

including certain information in the report accompanying such legislation, information such

as: (1) statements on whether the legislation is intended to pre-empt any State, local, or tribal

law (and the effect of such pre-emption); (2) individual mandate descriptions; (3) cost-benefit

analyses; and (4) statements regarding Federal financial assistance to State, local, and tribal

governments for meeting mandate costs.

The legislature is also accountable for its law making. The

primary accountability is accountability for law made means what law should be made by the

Legislature. As Article 246 of the Constitution speak about the Distribution of Legislative

powers between Centre and State, and power to make laws. Thus, it is important for the

legislature to take account of the fact that what laws should be framed and how it should

legislate? Either on the areas identified in the Constitution under Schedule VII, which means

Legislature can make legislations on only 97+66+47 = 210 areas/fields or according to the

need of the people, need of the country, Need of the hour? The answer to this question is

simple that Legislature is accountable to frame legislations according to the need of the hour

and entries identified under Schedule VII.

Judicial deference to agency constructions of "ambiguous" statutory language presents risks

to the constitutionally mandated separation of powers and principles of

legislative accountability. It involves a close interaction between the political leadership and

the executive which formulates its proposals, the legislature which scrutinizes and gives its

approval, the implementing agencies which are to fulfil physical tasks, an appropriately

structured accounting system to record these transactions correctly, and an independent as

well as objective evaluation of the actual performance through the statutory audit function to

ensure accountability. This again enhance the ambit of moral accountability which simple

mean Legislature accountable by the morality possessed by Legislature.

Report of CAG

The report of CAG is not binding on the Government of India. The report of the CAG of

India relating to the accounts of the Union is submitted to the President, who must place the

same before each House of the parliament. The reports relating to the accounts of a State are

submitted to the Governor, who must place them before the Legislatures of the State. He

audits the accounts of the Union and the States and statutory corporation. Basically, CAG

report includes Legislative aspect.

The doctrine of Colourable Legislation states that “if the Constitution of a State distributes

the legislative spheres marked out by specific legislative entries, or if there are limitations on

the legislative authority in the shape of fundamental rights, question do arise as to whether

the legislation in a particular case has not, in respect to the subject-matter of the statute or in

the method of enacting it, transgressed the limits of its powers”.

Such transgression may be patent, manifest or direct, but may also be disguised, covered and

indirect and it is to this latter class of cases that the expression “Colourable Legislation” has

been applied in certain judicial pronouncements. It is also sometimes called as

“Legislative Fraud”. In a federal Constitution transgression of its limits of power by

legislation may be i) open, direct and overt or ii) disguised, indirect and covert. The latter is

termed as Colourable Legislation.

The doctrine has no application where the powers of a Legislature are not fettered by

any constitutional limitation.

The doctrine is also not applicable to subordinate legislation.

Doctrine of Colourable Legislation signifies not to identify the colour of the legislation but to

identify that whether legislation is making the law under power given by the law under power

given by the Constitution or it is usurping power to make law. So, laws made in disguise or in

coward manner wherein legislature is expressly prohibited in making such law but law is

made in different pretext to achieve the same objective; it is identified as colourable exercise

of legislative power. The simple outcome of the aforesaid doctrine can be stated as whatever

Legislature can’t do directly, he can’t do indirectly. In this way Doctrine of Colourable

Legislation take note of Legislative accountability.

LEGISLATIVE ACCOUNTABILITY IN OTHER COUNTRIES

In other countries or rather say in other Federal Countries, their Constitution also doesn’t

provides an explicit source to determine the legislative accountability. But from the conduct

of last few years the traces of legislative accountability can be traced easily. Like in US, no

Article was made in the Constitution which can locate the legislative accountability straight

forward. But to avoid this crisis by the interpretation the presence of this was made. In

the Constitution of US, Article 1, Section 5, the responsibility was made on the Legislature to

punish its members in case not acting in the proper manner, the reason stated behind it was

that the members of Legislature are accountable to the people and in case if they are acting in

derogation to it, they should be punished. Later on this was termed as “The Ethics

Process”, under which the Constitution gives Congress the responsibility to discipline its own

Members. A self-disciplining system, however, has inherent conflicts. Because members

must cooperate with each other in the legislative process, there is a natural and

understandable reticence for Members to do something detrimental to one another. While the

public, through the ballot box, makes the ultimate decision about who should be returned to

Congress, involving the public in the internal ethics process should make the process more

balanced and credible. Indeed, professions from the law to the clergy have shifted away from

self- regulation toward reliance on outsiders for exactly these reasons.

Further Reorganization Act, 1977, the availability of Legislative Information was made

essential. While introducing it, the object and reason stated thereby reflects that it is the sense

of the House that the availability of legislative information to members, the public, and the

media should be improved significantly.

This expresses the view that the text of proposed legislation be more readily available and

more widely disseminated to Members and the public. Specifically, it urges filing committee

and conference reports on computer disk to facilitate their availability to all Members. It

recommends that, notwithstanding the general 3-day layover rule, the House take no action

which reduces the advance availability of bills, reports, conference reports, and amendments

(for bills under suspension) to less than 24 hours. It recommends that legislative

documentation be accessible on computer to all congressional offices and through databases

to the public. Also, the cable broadcast system should be enhanced to provide all offices,

committee hearing rooms, and party cloakrooms with summaries of pending legislation.

In the Constitution of US, no express provision is made to have Legislative accountability but

when US realized that now there is a crisis of Accountability from the side of Legislature,

these provisions were made. While observing the legislative accountability process in US it is

noted that the so called “The Ethics Process” put a sort of moral accountability and

the Reorganization Act, 1977 put a sort of legal accountability on the Legislature which

results in the effective working.

The same is the situation in case of Canadian Constitution. No such provision is made in the

Constitution but a separate Act The Financial Administration And Consequential

Amendments Act, 2003 was passed. The sole motto of the act was to provide mandates to the

Legislature for its accountability. Under the Section 5 of this Act a Treasury Board was

constituted to take account of financial matters related to Legislature.

Thus, by enacting a separate Legislation the Legislative Accountability was made available

for the citizens of Canada.

In Australia, the situation with regard to Legislative Accountability, Constitution and further

enactment is similar. The Legislative Accountability and Reforms Act, 1994 was passed

under which the Legislative Accountability was fixed or can say was expressly expressed.

This section establishes procedures and requirements for the committee report accompanying

legislation that imposes a Federal mandate. The report shall include: an identification and

description of Federal mandates in the bill, including an estimate of their expected direct

costs to State, local, and tribal governments and the private sector, and a qualitative

assessment of the costs and benefits of the Federal mandates, including their anticipated costs

and benefits to human health and safety and protection of the natural environment. For

Federal intergovernmental mandates, the committee report must also contain a statement of

the amount, if any, of increased authorization of Federal financial assistance to fund the costs

of the intergovernmental mandates. If the committee decides to authorize funding for the

intergovernmental mandates, then is must, in both the legislation and committee report,

identify sources of funding at an amount equal to the amount of authorized Federal financial

assistance. Further, the committee shall identify one or more of the following three funding

sources to pay for the authorized Federal financial assistance: a reduction in authorization of

existing appropriations, a reduction in direct spending, or an increase in receipts.

The process is same as that of US but the only difference is that in Australia nowhere moral

accountability is allocated because they thought moral accountability is allocated in the

nature.

By analyzing the condition of three federal Counties, I found that there is lack of provisions

with regard to Legislative Accountability in the Constitution but thereafter separate

enactments were made when they felt there is a crisis of Legislative Accountability. This

shows that everywhere, the Constitution framers must have thought that accountability lies in

the heart of an institution. No where it was foresighted that there would be a requirement of

legal accountability in the dead soul of Legislature even after knowing that “Accountability

lies in the heart of man (or according to the context man refers to legislature) when it dies

there, no constitution, no law, no Court can save it. While it lies there, it needs no

Constitution, no law, no Court to save it.”

We made an attempt to describe the Doctrine of Colourable Legislation and Legislative

accountability. While working at the conclusion of this project work we were in a deep

whirlpool by the fact that do we really need Doctrine of Colourable Legislation, Auditor

Comptroller, Financial Accountability Act etc. to fix the legislative accountability. If yes!

Then for India there cannot be any big fallacy than this because as we look upon the system

of governance and foresight of the Constitutional framers this was never intended. Then the

question comes, if not intended, then why we need this? We need this because Legislature is

running away from its duties and indulging in corrupt practices, for which he is unable to

give accountability. “Accountability” is such a thing, which can be received but cannot be

extracted. Legislature is a part of governance and component unit of governance comprised

of Indian citizens, so why Legislature wants no moral accountability? These are the questions

which needs immediate answer. However some suggestions for, observations and areas of

concern for Legislature and Legislative Accountability:-

1. Corruption, insensitivity and inefficiency of Legislature have resulted in extra-legal

system. Bureaucratic corruption and pettifoggeries, which cause frustration in people

in their daily lives has more serious fallout of pushing more people into extra-legal

system. This should be checked.

2. There is an increasing non-accountability, Corruption has been pervasive. Public

interest has suffered. This area needs a great concern.

3. There must be provisions for ensuring legislative accountability. They may be like

that, "On all bills in each committee, names and votes of members shall be recorded

[and] available for public inspection." And that the whole legislative body: "On the

final passage of bills, the votes and names of the members voting thereon shall be

entered in the journal."

4. There must be online presence of the text and status of bills, legislative analyses and

journals, and more.

5. There is a fundamental breach of Constitutional faith for Legislature and their method

of governance lies in the neglect of the people who are ultimate source of political

authority.

6. There is pervasive disenchantment with the working of Legislature. People

themselves seem almost to have resigned to what they consider their inevitable fate.

7. Legislation, it is said, is a potent teacher which teaches people by its own example

and its laws. In the present context the lessons have not been happy. Quite often they

were bitter, leaving the populace confused.

8. Good Legislature can and do change men. Good governments (of which legislature is

also a part); can earn their confidence. It is only when “Government can move beyond

the limits of physical world and use our minds to soar into the future.”

9. Legislatures should be taught moral and ethical values, so that they can also fulfil

their moral duties and can also under normal circumstances be good citizen. If this is

to be done we won’t be requiring the concept of legal accountability no more.

10.The State Auditor General need to be given greater authority by the Comptroller and

Auditor General, while maintaining its general superintendence, direction and control

to bring about a broad uniformity of approach in the sphere of financial discipline.

11.That excessive secrecy and open abuse of the public trust should not be tolerated.

Consequently, citizens will enjoy a transparency and accountability in their state's

legislative process that can only be the envy of citizens in other states.

At the end we would like to appreciate the words of Chakaravarti Rajgopalachari with a

sorrow heart and sorrow mind which he wrote about Seventy Eight years ago that:

“We all ought to know that Swaraj will, not at once or, I think, even for a time to come, bring

better government or greater happiness for the people. Elections and thereafter corruptions,

injustice, and the power and tyranny of wealth, and inefficiency of administration, will make

a hell of life as soon as freedom is given to us.”

EXECUTIVE ACCOUNTABILITY

Under the Constitution of India, the head of the Executive is the President. All executive

power is vested in him and all executive actions are taken in his name. He is, however, only a

Constitutional Head of State acting on the aid and advice of the Council of Ministers and as

such only the formal Executive. The real or the political Executive is the Council of'

Ministers. Then, there is the permanent administration comprising the civil services-the huge

staff of administrators, experts, technocrats and others forming an administrative apparatus

which really helps the Ministers in the formulation and implementation of policies.

The Indian system, however, represents a real fusion of the highest executive and legislative

authorities. In terms of the Constitution, as also in actual practice, the relationship between

the Executive and the Legislature is one that is most intimate and ideally does not admit of

any antagonism or dichotomy. The two are not visualized as competing centres of power but

as Inseparable partners or co-partner in the business of Government. Parliament is a large

body. It does not and cannot govern, The Council of Ministers is the 'grand executive

committee' of Parliament charged with the responsibility of governance on behalf of the

parent body. It is drawn from, and remains a part of the Parliament and is responsible to the

Lok Sabha. The relationship between the Executive and the Legislature, may be said to be

that of a part to the whole and one of interdependence.

The head of every Government Department is a Minister and Parliament exercises control

over the Department through the Minister. A Ministry has practically an autonomous

existence of its own and conducts its business in pursuance of statutory provisions, rules and

regulations or according to a long-standing practice. The Parliamentary control over the

Ministry rests in the fact that any action of the Ministry can be called in question by any

Member and the Minister responsible for the administration of that Ministry has to defend the

acts of his officials. It is a well-established constitutional principle that a Minister is

responsible to Parliament for all the acts of the Ministry and it is he who takes the blame,

should Parliament disapprove of any administrative act. There can, however, be a case where

a civil servant acts either deliberately or recklessly, outside the policy of his Minister or

contrary to that policy. By doing so, he relieves the Minister of the responsibility of

protecting him. But the constitutional responsibility of the Minister of Parliament remains

and he has to satisfy Parliament that he is dealing with the matter adequately.

The Executive enjoys the right to formulate the Budget. The Constitution provides for an

annual statement of the estimated receipts and expenditure to be placed before Parliament.

The Executive is completely free to suggest what the level of its expenditure should be and

specify the purposes for which various amounts may be acquired. It has also full freedom to

suggest how revenue should be raised to meet the expenditure. Thus the entire initiative in

financial matters is with the Government. Nevertheless, parliamentary control over public

finance--the power to levy or modify taxes and the voting of supplies and grants is one of the

most important checks against the Executive assuming arbitrary powers. No taxes can be

legally levied and no expenditure incurred from the public exchequer without specific

parliamentary authorization by law. Legislative control over the executive, especially in

financial matters, is sought to be achieved through (1) its approval of the detailed expenditure

and tax proposals and (2) as well as through its scrutiny of executive's irresponsibility and

irregularities committed in the course of implementation of the budgets. The formal aspect

of accountability to the legislature requires that the executive conducts its affairs in such a

way that it is not exposed to adverse criticism. Hence the executive as well as the top layers

of the administrative hierarchy are interested in exercising such control over the various

levels of administration to prevent irregularities and ensure efficiency and economy in

operations. But according to Article 75(3), “ The Council of Ministers shall be collectively

responsible to the House of the People.” By adding this clause, the Executive is held

accountable by increasing the inter-organ control.

While the need for control or scrutiny is not denied, it must be constructive, purposeful,

imaginative and not narrow in outlook or cramping in effect. In all responsible governments,

control essentially implies the accountability and responsibility of lower to the higher organs

in the administrative hierarchy for the money collected and expenditure incurred.

The maxims of honesty, efficiency, and economy should guide the conduct of the

executive officials while they spend public money. Parliament is the sole authority under the

Constitution empowered to sanction funds to the executive for all expenditures. It is the duty

of the Parliament to ensure that adequate machinery exists to see that no money is spent out

of the consolidated funds by the executive beyond the appropriations provided by law or the

Parliament. Under the traditional system, the Treasury, down to the heads of the units,

assumes responsibility for the efficient and economical expenditure of the funds entrusted to

them as soon as the budget is approved by the fund-granting authority. But in the modern

times financial administration defines budgetary control as the establishment of departmental

budgets relating to the responsibilities of executives, to the requirements of a policy and the

continuous comparison of actuals with budgeted results. This comparison aims at securing,

through individual or collective action, the objectives of the policy or to provide a basis for

its revision. Such a control would, however, involve the establishment of a pre-determined

standard or target of performance, measurement of the actual performance, comparison with

the predetermined standards, the disclosure of deviation between the actual and standard

performance and reasons for these deviations, and taking suitable corrective action where

examination of the deviations indicates that this is necessary. The execution of the budget

means: a) Proper collection of funds, b) Proper custody of the collected funds.

The book traces the history of the IAAD from 1858 when the East India Company

administration was taken over by the British Government. In 1860, the first Auditor General

of India was appointed and he looked after both audit and accounts functions. A statutory

independent status was given to the Auditor General with the passing of the Government of

India Act, 1919. Under the subsequent Government of India Act, 1935, the position of the

Auditor General was further enhanced. He was appointed by the Governor General and could

be removed from office in the same manner as a Judge of the Federal Court. The duties and

powers of the Auditor General were regulated by the Government of India Audit and

Accounts Order, 1936 which continued till 1971 when the Comptroller and Auditor General’s

(Duties, Powers, Conditions of Service) Act, 1971 was passed by Parliament under the

Constitution of India which came into effect from January 26, 1950. Under the Constitution,

the former Auditor General of India was designated as Comptroller and Auditor General of

India (CAG). The duties of the CAG related to audit and accounts of the Union Government

and the State governments. In 1976, the CAG was relieved of the responsibility of compiling

and keeping accounts of the Union Government but not of the State governments. The

accounts of the States are still compiled and kept by the State Accountants General under the

CAG and have not been taken over by the States.

Public audit of Central and State governments was restricted to regularity audit to see

whether laws, rules and regulations were complied with in handling funds and to financial

audit to see whether the financial statements of accounts presented a fair and correct state of

affairs of the government with reference to vouchers and other initial records of accounts.

In the 1960s, the area of audit was extended from expenditure audit to revenue audit which

was included in the CAG’s (DPCS) Act, 1971 also later. From the 1970s the CAG undertook

performance audit (value for money audit) of various development

programmes/schemes/projects and of government organizations with due regard to economy,

efficiency and effectiveness. The audit of the Public Sector Enterprises (PSEs) came under

the purview of the CAG by a suitable provision in the Indian Companies Act or by a

provision in the Act setting up a Corporation. A system of performance appraisals of the

PSEs was introduced in 1970 through the Audit Board. Autonomous bodies substantially

financed by the government are also within the ambit of audit by the CAG under the Act of

1971.

Under Articles 148 to 151 of the Constitution, the independence of the CAG is ensured, his

salaries and allowance and the administrative expenses of his office, including salaries of

officers and staff, are charged on the Consolidated Fund of India. He submits his reports as a

result of audit to the President/Governor of the State who causes them to be laid before

Parliament/the State Legislature as the case may be. These reports are remitted to the

Central/State PACs which has to examine them. The members of the PAC, both at the Centre

and States, have no time to examine all paragraphs and reviews of the audit reports and

therefore a selective approach is adopted to examine them.

The book brings out that a study by a former Deputy CAG revealed that from 1947-48 to

1987-88, out of 13,457 paragraphs only 5409 were examined by the Central PAC which

constituted 40 per cent. During 2003-04, out of 759 paragraphs/reviews in Central Audit

Reports, the PAC selected only 93 but could examine only nine paragraphs in the 11 sittings

held. In the States at the end of 2004, 12,000 paragraphs were pending out of which State

PACs could examine only around 500 paragraphs (about four per cent). In some States, audit

reports are pending discussion from 1983-84. Thus in most States, financial control by the

Legislature is non-existent. In the States, the book points to a very serious problem relating to

excess expenditure over voted grants/charged appropriations. As upto March 2002 over Rs

1,79,500 crore was spent in excess of the authorized amounts in the States which remained

unregularised under Article 205 (b) of the Constitution. This is nothing short of a fraud on the

Constitution. The shares of the J&K Government and the UP Government in this are Rs

41,321 crores and Rs 23,248 crores respectively. The above shows the kind of financial

control exercised by Parliament/State Legislatures in the country through their PACs.

The existing duties of the CAG enjoin on him to audit the Central/State expenditure and

revenue and to submit audit reports. The tremendous work done by the CAG and his officers

in auditing and producing audit reports is rendered infructuous as the PACs have no time to

examine them. Even in respect of the few paragraphs and reviews examined by the PAC,

adequate action is not taken by the government. No adequate action is taken on paragraphs

not selected by the PAC.

What is unfortunate is that the CAG does not have any legal power to enforce action on his

findings, to enforce recovery of loss of government money, stores or property due to

negligence of delinquent officials. He has no power of compelling departments to take

disciplinary or criminal action against defaulting officers. The CAG’s (DPCS) Act, 1971

provides that the departmental officers should produce records asked for by audit and give

replies to queries raised by audit. If, however, the departmental officers do not comply with

these provisions, the CAG has no power to enforce compliance except to make mention of it

in his audit reports. Now the position in these matters in other countries like Japan, New

Zealand, France, South Korea, China, Thailand, Australia, etc. where the supreme audit

institutions have been vested with wide powers of investigation, enforcing recovery of loss of

government money or property, imposing surcharge and compelling departments to take

disciplinary or criminal action, as the case may be, against delinquent public servants.

The CAG of India is the CAG of the Union Government and also of the States. The State

Accountant General (AG) under the CAG does not have any legal status. The State AG

should be given the legal status equivalent to a Judge of the High Court, even though working

within the general superintendence of the CAG of India as in other countries like the USA,

Germany, Canada, Australia and the UK which have separate Auditor Generals in provinces.

This suggestion is in line with the provision in the 1935 Act and in the original draft of

Constitution and the recommendation of the National Commission to Review the Working of

the Constitution (NCRWC).

Now we look into the enormous amount of work and responsibility which the CAG of India

has to shoulder in respect of the Union/States, Public Sector Enterprises and autonomous

bodies substantially financed by government funds. It, therefore, suggests the creation of a

multimember Audit Commission on the lines of Election Commission, whose members may

have the same constitutional status and terms of service as the CAG. The Audit Commission

would be responsible for policy matters relating to audit and accounts and approval of audit

reports. A similar position already exists in other countries like Japan, France, Germany,

South Korea in the form of Audit Boards or Audit Courts. The National Commission to

Review the Working of the Constitution had also recommended the setting up of an Audit

Board for better discharge of the vital function of public audit.

The Constitution does not lay down any qualifications for the appointment of the CAG of

India and also does not prescribe any procedure for making the appointment except that the

CAG shall be appointed by the President of India by a warrant under his hand and seal. The

book advocates the laying down of qualifications for such appointment and only persons with

vast experience in audit and accounts and finance in government should be eligible to hold

this high office as was intended in the debates in the Constituent Assembly in this matter in

1949. Further, the appointment should be made on the recommendation of an independent

Committee which should include the Speaker of the Lok Sabha, the Chairman of the Central

PAC and the Leader of the Opposition in the Lok Sabha as its members. In the UK the

appointment of the CAG is ratified by the House of Commons on the recommendation of the

PM made in agreement with the Chairman of the PAC and the CAG is made an officer of the

House of Commons.

In order to promote transparency and accountability in administration, the Indian Parliament

enacted the Freedom of Information Act, 2002, which was repealed later and a new act, The

Right to Information Act, came into force on 12 October 2005. The new law empowers

Indian citizens to seek information from a Public Authority, thus making the Government and

its functionaries more accountable and responsible. The Act has now been in operation for

over three years and has benefited many, including the poor and the underprivileged. It has

been highlighted in this report through various case studies that RTI Act has adequate “teeth”

to bring in transparency and reduce corruption. At the same time it accepted that the Act has

not yet reached the stage of implementation which was envisioned. However, it is still a

matter of pride that we have given to ourselves, a tool which has the potential to usher in

transparency, and reduce corruption. Notwithstanding the improvement requirements, the

following achievements are undisputable: In a parliamentary democracy, the executive is

drawn from the party or a coalition of parties that has a majority in Lok Sabha. It is not

difficult for the executive to exercise unlimited and arbitrary powers with the support of the

majority party. In such a situation, parliamentary democracy may slip into Cabinet

dictatorship, where the Cabinet leads and the House merely follows. Only if the Parliament is

active and vigilant, can it keep regular and effective check on the executive. There are many

ways in which the Parliament can control the executive. But basic to them all is the power

and freedom of the legislators as people’s representatives to work effectively and fearlessly.

For instance, no action can be taken against a member for Chapter 5: Legislature whatever

the member may have said in the legislature. This is known as parliamentary privilege. The

presiding officer of the legislature has the final powers in deciding matters of breach of

privilege. The main purpose of such privileges is to enable the members of the legislature to

represent the people and exercise effective control over the executive.

With so many sting operations, perhaps the question hour is the most effective method are

MPs still free to speak of keeping vigil on the executive and the administrative anything

anywhere. Members of Parliament have Indian Constitution at Work shown great interest in

question hour and maximum attendance is recorded during this time. Most of the questions

aim at eliciting information from the government on issues of public interest such as, price

rise, availability of food grains, atrocities on weaker sections of the society, riots, black-

marketing etc. This gives the members an opportunity to criticize the government, and

represent the problems of their constituencies. The discussions during it must be difficult to

the question hour are so heated that it is not uncommon minister. This is like giving an eye to

see members raise their voice, walk to the well of the examination almost every day in the

house or walk out in protest to make their point. This results in considerable loss of

legislative time. At the same time, we must remember that many of these actions are political

techniques to gain concessions from government and in the process force executive

accountability.

No Confidence Motion: The most powerful weapon that enables the Parliament to ensure

executive accountability is the no-confidence motion. As long as the government has the

support of its party or coalition of parties that have a majority in the Lok Sabha, the power of

the House to dismiss the government is fictional rather than real. However, after 1989,

several governments have been forced to resign due to lack of confidence of the house. Each

of these governments lost the confidence of the Lok Sabha because they failed to retain the

support of their coalition partners. Thus, the Parliament can effectively control the executive

and ensure a more responsive government. It is however important for this purpose, that there

is adequate time at the disposal of the House, the members are interested in discussion and

participate effectively and there is willingness to compromise amongst the government and

the opposition. In the last two decades, there has been a gradual decline in sessions of the Lok

Sabha and State Legislative Assemblies and time spent on debates. Moreover, the Houses of

the Parliament have been plagued by absence of quorum, boycott of sessions by members of

opposition which deprive the house the power to control the executive through discussion.

JUDICIAL ACCOUNTABILITY

Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of

an effective mechanism for the enforcement of judicial accountability, when needed, is a felt

need and must be accepted. Since judicial accountability is a facet of independence of the

judiciary, article 235 of the Constitution of India provides for ‘control’ of the High Court

over the subordinate judiciary clearly indicating that the provision of an effective mechanism

to enforce judicial accountability is a part of our constitutional philosophy. Entrustment of the

power over the subordinate judiciary to the High Court preserves the independence of

judiciary, and respects the directive principle of separation of judiciary from executive

(article 50).

The mere presence of an effective mechanism for judicial accountability acts as an internal

check or possible deterrent against erosion of these values. In India, judicial review is a basic

principle of the Constitution expressly provided when the Constitution was enacted. Article

13 says clearly says any law made, even earlier and those made later, which are inconsistent

with the Constitution, would be invalid. This is an express provision for judicial review. Not

only that, the Fundamental Rights of individuals are guaranteed, which itself contains in

Article 32 as part of the Fundamental Rights, a constitutional remedy for the enforcement of

the Fundamental Rights. Therefore, Article 32 giving original jurisdiction to the Supreme

Court itself is a Fundamental Right and imposes an obligation on the Supreme Court to

enforce Fundamental Rights of individuals whenever there is an occasion to do so. This is

another provision for judicial review. In addition to Article 32, there is Article 136 which

deals with the special powers of the Supreme Court which enables the apex to grant special

leave against any determination which it thinks it must review or revise. This is with regard

to the Supreme Court. So powers of the apex court under Articles 32 and 136 are wide

enough to cover the entire gamut of the issues that has been discussed5.

In the 80’s, the Supreme Court evolved a new jurisdiction which has come to be known as

Public Interest Litigation which involved a liberal interpretation of the fundamental right of

life and liberty guaranteed by Article 21 to include the right to live with dignity and,

therefore, to enjoy the basic amenities of life, such as food, water, shelter, basic education,

healthcare and even the right to a healthy environment. Simultaneously, the Court declared

that they could and should direct the executive to provide these amenities to citizens who

were denied these.

5 India Of My Dreams By Justice J.S.Verma

Unfortunately, neither the Constitution, nor any other law has created any institution or

system to examine the performance of judges or examine complaints against them. The

Constitution provides that High Court and Supreme Court judges cannot be removed except

by impeachment. That process requires signatures of 100 MPs of the House of People or 50

MPs of the Council of States for its initiation. If a motion containing charges of serious

misconduct with the requisite signatures is submitted, and admitted by the Speaker of the

House of People or the Chairperson of the Council of States, an Inquiry Committee of 3

judges is constituted to hold a trial of the judge. Only if he is found guilty, the motion is

placed before each House of Parliament where it has to be passed by a 2/3 majority of each

House. Our experience has shown that it is practically impossible to remove a Judge through

impeachment even if one is somehow able to get documentary evidence of serious

misconduct. This is because MPs and political parties to which they belong are very reluctant

to take on a sitting Judge because virtually all of them have pending cases in courts. The

judges often behave like a trade union and do not take kindly to brethren being accused of

misconduct. It is, therefore, virtually impossible to get an impeachment off the ground unless

the matter has become a big public scandal.

The only impeachment of a Judge to have gone far was that of Justice V. Ramaswami in the

early 90’s. After the motion was presented, a Judges Inquiry Committee found him guilty of

several charges of misconduct when the matter went up for voting to Parliament. The ruling

Congress Party directed all their MPs to abstain from voting. Thus, though the motion was

unanimously passed in the Lok Sabha, it did not get the support of the majority of the total

membership of the House and, therefore, failed. The Judge remained in office till he retired,

but was not assigned any judicial work by the then Chief Justice. “Only last month, we have

seen a second motion against a Judge of the Calcutta High Court signed and submitted to the

Chairman of the Council of States,” by Prashant Bhusan in his lecture in Princeton University

last March.

In 1991, the Supreme Court by another ingenious judgment, involving Justice Veeraswami

(the father-in-law of Ramaswami), who was Chief Justice of the Tamil Nadu High Court who

was caught with assets, vastly disproportionate to his income, laid down that no judge of a

superior court could be subjected to a criminal investigation without the written permission of

the Chief Justice of India. This judgment has been use to prevent the investigation and

prosecution of many judges against whom there was documentary evidence of corruption,

fraud, misappropriation, etc. This has also increased the impunity of judges who have now

got used to the feeling that they can get away with any kind of misconduct or even criminal

conduct, without any fear of any criminal action or action for removal. Armed additionally

with the power of contempt, they also have little fear of public exposure.

Absence of any mechanism for enforcement of judicial accountability at the higher levels,

other than by the process of impeachment [articles 124(4) and 217(1) Proviso (b)] in extreme

cases, is because no such need was visualized when the Constitution was framed. At that

level, it was expected that settled norms and peer pressure were sufficient checks. However,

there is now a felt need for an effective mechanism even for the higher levels of judiciary,

though it may be for rare aberrations only. Public opinion is veering in that direction because

of several recent instances, some of which have led even to

criminal prosecutions and an infructuous impeachment proceeding. Public memory of such

instances being fresh, details thereof do not require mention.

Inadequacy of the existing mechanism was witnessed in the K.Veeraswami case6; and the

infructuous impeachment proceedings in the case of V.Ramaswami even after the adverse

finding of the Judge’s Committee under the Judges Inquiry Act, 1968, affirmed that

impression. Several subsequent incidents involving judges at the higher levels, which are well

known, have led to a clamour for an effective mechanism for use when needed. Absence of

an effective means to ensure accountability of all public men portends danger for democracy.

The Veeraswami judgment (Tamil Nadu High Court laid down that no judge of a superior

court could be subjected to a criminal investigation without the written permission of the

Chief Justice of India) must be judicially or legislatively reversed and there should be no

additional impediment in the criminal investigation and prosecution of judges. That task

could also be entrusted to the investigative organization under the Judicial Complaints

Commission. “Scandalising the Court or lowering the authority of the Court” must be deleted

from the definition of Criminal Contempt of Court and it must be made clear that an

allegation however scurrilous against a judge would amount to defamation, but not contempt,

unless it presents a clear and present danger to the administration of justice (The US Law).

The High Court rules under the RTI Act, which conflict with the RTI Act must be rescinded7.

This lack of accountability has led to considerable corruption of the higher judiciary which is

evident from the recent spate of judicial scandals which have erupted in India. The recent

report of TI on corruption perception index shows that the judiciary is perceived to be the

second most corrupt institution in India after the Police. Earlier, the Supreme Court has

declared that a person charged with “scandalizing the Court” will not be permitted to prove

6 1991(3) SCC 6557 Lack of Judicial Accountability by Prashant Bhusan

the truth of his allegation against a Judge. Though Parliament has recently amended the

Contempt of Courts Act to expressly allow truth as a defence, nothing has been done to

prevent judges against whom allegations are made from charging the person with contempt

and hauling him to jail. The criminal contempt jurisdiction of the Court and the cavalier

manner, in which it is exercised, is another example of the enormous and unchecked power of

the superior courts in India.

In 2005, India got one of the most liberal and powerful RTI Acts in the world. It permits

disclosure of internal noting and correspondence of public officials, has few exemptions from

disclosure, creates an independent appellate body to decide disputes regarding refusal of

information. It also provides for penalties against arbitrary and malafide refusal to disclose

information. It applies to all public authorities including the judiciary. One would have

expected that the courts which had held that even in the absence of any RTI Act, the

fundamental right to free speech, encompassed that right anyway, would have welcomed the

application of the right to the courts. Unfortunately, however, the court has fiercely resisted

the disclosure of all critical information relating to the courts. Several High Courts have

framed rules, in violation of the RTI Act, that no administrative or financial information

would be given. The application fees for RTI applications in the courts are sometimes 50

times that of other public authorities. The courts have, therefore, refused information about

appointments of employees of the courts, about appointment and transfer of judges, and about

complaints against judges. The Supreme Court even refused to disclose whether any judges

are declaring their assets in accordance with the Code of Conduct that they had framed.

Compounding this further is the problem of corruption in the system exacerbated by a total

lack of accountability of the higher judiciary. The layers of protection from accountability

afforded to judges include the lack of any effective disciplinary mechanism, the self acquired

protection from even being investigated for criminal offences, the virtual immunity from

public criticism due to the law of contempt, and finally by the immunity from public scrutiny

by another judicially created insulation from the Right to Information Act.

The most serious problem has however been created by the elitist and anti poor bias of the

judiciary. It has essentially become an instrument for protecting and furthering the interests of

the rich and powerful, both Indian and foreign. Thus judges who have taken the Oath to

defend the Constitutional principles of Justice-Social, economic and political have ordered

the bulldozing of the homes of lakhs of jhuggi dwellers, leaving them homeless on the streets.

They have ordered the removal of lakhs of street vendors and rickshaw pullers from the

streets of Delhi and Bombay, thus effectively depriving them of their livelihood. By their

"creative reinterpretation" of labour laws they have effectively deprived citizens of the

protection afforded by the laws. They have thus accomplished the corporate friendly "labour

reforms" which successive governments have not had the political mandate to do.

It is clear that the judicial system needs to be reclaimed and reinvented by the people of the

country, so that it can come to function in accordance with the philosophy of the

Constitution. The system will need to be cleared of procedural complexities and cobwebs so

that it can be accessed by the common citizens without professional lawyers, who have

become a part of the exploitative judicial system. It will need to be strengthened to deliver

justice quickly, efficiently and honestly. Whatever, additional financial allocation or

additional judges are required for this must be done. For this, the various layers of protection

created to shield the judges from accountability would have to be peeled away. To begin

with, the clause relating to scandalizing the judiciary would have to be deleted from the

Contempt of Courts Act.

The system of appointments of judges would have to be made transparent and such that the

proposed appointees can also be scrutinized from the point of view of their sensitivity to the

ideals of the Constitution. An independent Judicial Commission would be needed to examine

complaints against judges and hold them accountable. The immunity from criminal

investigation would need to be withdrawn. The Right to Information Act would need to be

strictly enforced particularly for the judiciary. In fact, every judicial proceeding must be

video-taped and its record made accessible to the people.

None of these changes would however be made by the ruling establishment of the country

without sustained public pressure from below. Both the executive and the judiciary are

obviously happy with the existing state of affairs. The judiciary enjoys enormous power

without accountability and the government is happy with a judiciary which enthusiastically

promotes its neo liberal policies. The only judicial reforms that the government appears to be

interested in is market oriented reforms such as increasing arbitration which is a form of

privatized system of justice for the wealthy.

The judiciary has long been regarded as a holy cow that was considered out of bounds for

people outside the select circle of lawyers, judges and government Commissions. It is

increasingly clear that it would be suicidal for the common people to ignore it any longer.

The threat of contempt must be ignored and mass contempt will have be committed if any

attempt is made by the judiciary to use the contempt law to discourage public scrutiny8.

8righttoinformation.info/CAMPAIGN%20FOR%20JUDICIAL%20ACCOUNTABILITY%20AND%20REFORMS.doc

In furtherance of the earlier resolutions of the Chief Justice’s Conferences, on May 7, 1997,

the Supreme Court of India in its Full Court Meeting unanimously adopted a Charter called

the ‘Restatement of Values of Judicial Life’, generally known as the Code of Conduct for

judges. Simultaneously, two other resolutions were adopted, which require declaration of

assets by every High Court and Supreme Court Judge/Chief Justice, and the formulation of an

in- house procedure to inquire into any allegation of misbehaviour or misconduct against

them, which is considered fit for inquiry by the Chief Justice of India and some of his senior

colleagues. Conscious of the fact that this mechanism lacked legal sanction for its

enforcement, the then Chief Justice of India, J.S.Verma wrote a letter dated December 1,

1997 to the Prime Minister informing him of these resolutions and the need to provide legal

support to this effort. That need remains unfulfilled.

A related issue assuming significance in recent years must also be addressed. There is public

disquiet, voiced often in private, about some post-retirement engagements of the Supreme

Court Judges/Chief Justices. Chamber practice in the form of written opinions under

signature given for use in any court, tribunal or authority; and paid arbitration work done

while heading a Commission availing the benefit of the perquisites and/or salary of a sitting

Judge are some of the disturbing trends. In an article published in the Indian Express of

March 14, 2004, Soli Sorabjee, a former Attorney General expressed grave concern at former

Chief Justices of India filing affidavits on behalf of private litigants in the US courts. These

are some of the instances impinging on the credibility of the institution on which lies the

greatest responsibility for preservation of the Constitution9.

BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

In the Bangalore Conference, they prepared some rules of conduct that a judge should follow.

Like some of the notable principles are the one that ensures their independence from any

other wing of the Constitution but it comes at a certain cost. The cost they will bear is that “A

judge shall encourage and uphold safeguards for the discharge of judicial duties in order to

maintain and enhance the institutional and operational independence of the judiciary10.”

Again, they should be impartial in giving judgements i.e. in short, they should not be biased.

They should have integrity in whatever do, they should judge a person with propriety and

they should look at everyone with equality. According to them, “Competence and diligence

are prerequisites to the due performance of judicial office.” And the most vital part of it is

that the implementation of the principles should be proper.

9 judicialreforms.org/files/mechanism_jud_acc_verma.pdf10 www.unodc.org/pdf/crime/.../judicial.../Bangalore_principles.pdf

SUGGESTIONS TO IMPROVE

1. Every judge when he hears a case should deliver the judgement as quickly as possible.

The present situation where we get complaints about judges hearing cases but not

delivering the judgements and retiring honourably should be avoided. In fact, I have

heard former Chief Justice of India say that when he was the Chief Justice of Madras,

he asked a judge who had accumulated an arrear of nearly 55 cases to first clear the

old cases before he could hear new cases. Perhaps if such internal discipline was

widespread, it will bring in a culture of better accountability in the judiciary.

2. The second important of accountability relates to the issue of contempt of court. I

understand that under the 1971 Contempt of Court Act, truth is no defence against

judiciary. I wonder whether any judiciary anywhere in the world has got such a

protection. This calls for a serious review.

3. The third point relates to the overall improvement of the performance of the judiciary

in terms of speed and productivity. Here I have two broad suggestions to make. The

first is the radical suggestion about improving the judicial infrastructure. Judiciary in

our country is a sacred cow. While the government’s motto is Satyameva Jayate- the

truth will prevail, when it comes to judiciary, truth is no defence, thanks to the

Contempt of Courts Act 197111.

4. There need to be independent statutory and full time bodies for the appointment of

judges as well as for the performance audit and disciplinary control over judges.

These bodies must be independent of the executive as well as of the judiciary.

5. These bodies must function transparently and must devise a clear criteria and

methodology of selecting judges and dealing with complaints against them. They

must have a small investigative machinery under their administrative control through

which they could get disputed and relevant questions of fact investigated. Their

decisions about appointments and removal of judges should be final and not subject to

executive, legislative or judicial approval12.

11 Corruption in India: the roadblock to national prosperity by N.Vittal12 Lack of Judicial Accountability by Prashant Bhusan

CONCLUSION

Dr.B.R.Ambedkar rightly said that the constitution is only as good as the men and women

who operate it. Even after 60 years, there are no express provisions in the Indian Constitution

for holding the Constitution accountable to the people of India. During the making of the

Constitution, the draftsmen could not have imagined the need of accountability to such an

extent. They worked on the concept of moral accountability but did not realise the necessity

of legal accountability. So it is not expressly stated but the flexibility of Indian Constitution

has given the emergence of legal accountability. Though the flexibility of the Indian

Constitution helped in bringing reforms but the present political scenario of the country and

the fallacies which remain leads the escape route from the accountability. All the necessary

powers are being provided to serve the concept of accountability. But the absence of the

coincidence of the right power and right person creates the gap between the accountability

and its enforceability. Thus the idea of Constitutional Accountability will always remain a

myth until and unless some radical changes take place in the working of the Indian

Constitution.

BIBLIOGRAPHY

PRIMARY SOURCE OF DATA:

1. Government By Fiat: Retreat From Responsibility by Warwick Funnell

2. India Of My Dreams By Justice J.S.Verma

3. Corruption in India: the roadblock to national prosperity by N.Vittal

4. Lack of Judicial Accountability by Prashant Bhusan

SECONDARY SOURCE OF DATA:

1. orissagov.nic.in/e-magazine/Orissareview/jan2004/.../chapter3.pdf

2. nhrc.nic.in/Documents/DM_Lecture-II.pdf

3. http://www.policewatchindia.org/bwatchf_001.html

4. righttoinformation.info/CAMPAIGN%20FOR%20JUDICIAL

%20ACCOUNTABILITY%20AND%20REFORMS.doc

5. judicialreforms.org/files/mechanism_jud_acc_verma.pdf

6. www.thehindu.com/fline/fl2020/stories/20031010003510200.htm

7. www.councilofstates.nic.in/rsnew/practice_procedure/naccount.asp

8. www.goforthelaw.com/articles/fromlawstu/article24.doc

9. www.unodc.org/pdf/crime/.../judicial.../Bangalore_principles.pdf

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