NATIONAL LAW UNIVERSITY,

ORISSA

CONSTITUTION
ACCOUNTABILITY:Y
ET ANOTHER MYTH

SUBMITTED BY SOUMEN MOHANTY,

UTKARSH RAVI & AYAN DUTTA
 CONTENTS
1. INTRODUCTION 2

2. STATEMENT OF PROBLEM 3

3. RESEARCH METHODOLOGY 4

4. SCOPE AND LIMITATION 5

5. RESEARCH QUESTIONS 5

6. CHAPTERIZATION 5

7. HYPOTHESIS 5

8. CONSTITUTIONAL ACCOUNTABILITY 6

9. LEGISLATIVE ACCOUNTABILITY 7

10. EXECUTIVE ACCOUNTABILITY 17

11. JUDICIAL ACCOUNTABILITY 25

12. CONCLUSION 32

13. BIBLIOGRAPHY 33

Page33
 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.
Page33

1
Reforming the Indian
Constitution : 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.
Page33

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

Page33

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 QUESTIONS
1. 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?

CHAPTERIZATION
CHAPTER 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.
Page33

HYPOTHESIS
Accountability 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
Page33

3
http://www.policewatchindia.org/bwatchf_001.html
4
Government By Fiat: Retreat From Responsibility by Warwick Funnell
every incumbent of a public office must remain constantly accountable to the people, who are
the repository of political sovereignty.

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
Page33

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
Page33

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
Page33

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.
Page33
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
Page33

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
Page33

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
Page33

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

Page33

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
Page33

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.”

Page33
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
Page33

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
Page33

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
Page33

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.
Page33

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
Page33

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
Page33

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
Page33

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.

Page33
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
Page33

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,
Page33

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
Page33

6
1991(3) SCC 655
7
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.
Page33

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.
Page33

8
righttoinformation.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 judiciary 10.”
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.
Page33

9
judicialreforms.org/files/mechanism_jud_acc_verma.pdf
10
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.
Page33

11
Corruption in India: the roadblock to national prosperity by N.Vittal
12
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.

Page33
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

Page33