8. Accountability and Control - WordPress.com · Accountability is one of the three important pillars of a trust society, the other two being participation and transparency. Each

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Chronicle IAS Academy [3]

ACCOUNTABILITY

AND CONTROL

CHRONICLEIAS ACADEMYA CIVIL SERVICES CHRONICLE INITIATIVE

INTRODUCTION

The concept of administrative accountabilityimplies that administrators are obliged to give asatisfactory account of what they do and in whatmanner they exercise the powers conferred onthem. Its main aim is to check arbitrariness inadministrative actions and improveadministrative efficiency and effectiveness.

Accountability is one of the three importantpillars of a trust society, the other two beingparticipation and transparency. Each of thesethree pillars is the reason of other and alsofollows each other. Further, normally each ofthese pillars exists alongwith each other. Thusdiscussion of one necessarily follows referencesto others.

The foundation of this concept however isthe democracy vs bureaucracy debate. Thisdebate unfolds the argument that in ademocracy citizens are at the central point ofgovernance - which exists to safeguard the rightsand liberties of the citizens however governanceoperates through bureaucracy which is ainstitution built on the premise that efficient andeffective bureaucracy mandatorily needs someoperational autonomy which creates adifferential power structure and in turn erodescitizens’ freedom upto a certain extent within asociety. This debate further extends to the secrecyvs openness argument. The openness argumentbelieves that transparency in administration isthe key to good governance while the secrecyargument believes that excessive transparencymakes the system so much prone to scrutiny thateffectiveness and working itself becomes difficultand in some cases even impossible. Thus if weare for democracy and openness our trulydemocratic society should have no place for aninstitution like bureaucracy-which creates powerdifferences and defeats the very reason for whichit exists in a democracy.

But bureaucracy is the instrument ofgovernance which if jettisoned would turn themodern society into a Stateless society, whichcould give birth to problems of even greater

magnitude and character in the absence of anyregulation enforcing structure, especially at thecurrent levels of human evolution. Thusbureaucracy should necessarily exist and is henceaccepted by the modern societies as necessaryevil. But this evil cannot be let loose to exercisearbitrary discretion, it has to be put under checksand balances so that its negative tendencies arecurtailed and beneficence is unleashed. Thus isborn the concept of accountability and controlalongwith its core challenge of balancingbureaucratic autonomy with citizens’ rights andliberties.

Thus the primary issue in accountability andcontrol is to how to balance administrativeaccountability with administrative discretion orhow to use the instruments of accountability sothat rights and liberties of the citizens aresafeguarded but at the same time powers inoperational autonomy stemming out ofadministrative discretion is also not curbed.

Another rationale of administrativeaccountability lies in the role which theadministrators play in policy making and that isthe informational dimension of accountability.The bureaucracy is the institution whichimplements the policy of the government on thefield. Therefore the bureaucrats are the bestpeople to provide onsite inputs and draw theattention of the policy makers towards thepractical problems confronting regulatory ordevelopmental functions. Moreover, the citizenshave confidence in the administrative structureof the government which makes them frank inventing their problems to them. Thus inordinatedelays are avoided which would have otherwisetaken place if the citizens had to wait for thepolitical representatives everytime to air theirproblems. The mechanism of administrativeaccountability thus helps to play a vital role inaddressing the issues within this phenomenon.

Thus another important issue which is anintegral part of accountability and control is howto make the bureaucracy sufficiently responsiveand articulate towards the problems of thecitizens. How to improve the mindset and the


functioning of bureaucracy on the ground so thatthe overall implementation becomes moreeffective?

Administrative accountability is enforced byvarious types of controls. The public servants aremade accountable to different agencies whichexercise control over them. The purpose ofcontrol draws out from the rationale ofaccountability i.e., exercise of their powers anddiscretion in accordance with laws, formal rulesand regulations, and established procedures andconventions.

Broadly speaking there are two types ofadministrative control viz. internal control i.e.control exercised on the administration fromwithin the administrative machinery andexternal control i.e., control exercised on theadministration from beyond the administration.There are various methods of exercising controlfrom within the administrative machinery viz.

1. Administrative hierarchy.2. Administrative leadership.3. Professional standards.4. Efficiency surveys.5. Annual confidential report.6. Enquiries and investigations.7. Personnel norms.

Methods of exercising external control overadministration are:

1. Executive control.2. Legislative control.3. Judicial control.4. Civil society groups or citizens.

EXECUTIVE CONTROL OVERADMINISTRATION

Executive control in the external sense refersto the control exercised by the political executiveover the permanent executive or bureaucracy.There are various ways in which political controlover bureaucracy manifests itself viz. policymaking, budgetary system, personnelmanagement, delegated legislation, ordinances,civil service codes, etc. Some are discussed below:

Political Direction (Policy-making): InIndia, the Cabinet formulates administrativepolicies and enjoys the power of direction,supervision and coordination with regard to itsimplementation. The minister, who is in-charge

of one or more departments, lays down thedepartmental policy and directs, supervises andcoordinates its implementation by theadministrators. Thus, though political direction,the Minister controls the operations ofadministrative agencies working under hisministry/department(s). The departmentalofficials are directly and totally responsible to theminister. In the USA, the same function isperformed by the President and his secretaries.

Budgetary System: The executive controls theadministration through budgetary system. Itformulates the budget, gets it enacted by theParliament, and allocates the necessary funds tothe administrative agencies to meet theirexpenditure. In all such activities, the Ministryof Finance (which is the central financial agencyof the Government of India) plays an importantrole. It exercises financial control overadministration in the following ways.

(i) Approval of policies and programmesin principle.

(ii) Acceptance of provision in the budgetestimates.

(iii) Sanctioning expenditure.(iv) Providing financial advice trough the

Integrated Financial Advisor.(v) Reappropriation of grants (i.e., transfer

for funds from one sub-head to another).(vi) Internal audit system.

(vii) Prescribing a financial code to befollowed by the spending authorities.

Appointment and Removal (PersonnelManagement and Control): This is the mosteffective means of executive control overadministration. The executive plays as importantrole in personnel management and control andenjoys the power of appointment and removalof top administrators. In this function, theexecutive (in India) is assisted by the Departmentof Personnel and Training, the Ministry ofFinance, and the UPSC. The Department ofPersonnel and Training is the central personnelagency in India and plays a major role inpersonnel management and control. At thehighest level, the ministers play an important rolein the selection and appointment of secretariesand heads of departments. Thus they (i.e.,ministers) exercise full control over theadministration of departments under theircharge through such appointees.

In the USA also, though the President has toseek the approval of Senate for effectingappointments to top posts, he has the exclusive


power of removing them from office. The Officeof Personnel Management (OPM) in the USplays an important role in personnelmanagement and control.

Delegated Legislation: Also known as theexecutive legislation, it is an important tool inthe hands of the executive to exercise control overadministration. The Parliament makes laws inskeleton forms and authorizes the executive tofill in minor detail. Therefore, the executivemakes rules, regulations and by-laws whichhave to be observed by the administrators inexecution of the law concerned.

Ordinances: The Constitution of Indiaauthorizes the chief executive, that is, thePresident to promulgate ordinances during therecess (interval) of Parliament to meet situationdemanding immediate action. An ordinance isas authoritative and powerful as an act ofParliament and hence, governs the functioningof administration.

Civil Service Code: The executive hasprescribed a civil service code to be observed andfollowed by the administrators in the exercise oftheir official powers. It consists of a set of conductrules which prevent the administrators frommisutilising their powers for personal ends. Theimportant among such rules in India are asfollows.

(a) All-India Services (Conduct) Rules, 1954(b) Central Civil Services (Conduct) Rules,

1955(c) Railway Services (Conduct) Rules, 1956

The deal with various thing like loyalty tothe state, obeying the official ordes of thesuperiors, political activities of civil servants,financial transactions of civil servants, maritalrestrictions, and others.

Staff Agencies: The executive also exercisecontrol over administration through staffagencies. The important staff agencies in Indiaare the Department of Administrative Reforms,the Planning Commission, the CabinetSecretariat and the Prime Minister’s Office.Mooney said that a staff agency is “an expansionof the personality of the executive. It means moreeyes, more eyes, more ears and more hands toaid him in forming and carrying out his plans.”Thus, the staff agencies exercise influence andindirect control over the administrative agenciesand play an important role in coordinating theirpolicies and programmes.

Appeal to Public Opinion: Theadministrative system, (i.e., civil services orbureaucracy) whether in the USA or the UK orIndia, is status quo oriented and hence resistschange. It does not receive new policies, plans,programmes and projects formulated by theexecutive with positive mindedness. In fact, thevarious organs of the administrative machinery,in the words of pfiffner and Presthus, “seek tostrengthen their position vis-á-vis other agencies,and the executive, by alliances with legislatureand pressure groups, as well as by calculatedsupport building campaigns directed at thegeneral public. They develop vested interests notonly in programme areas, but equally inestablished ways of doing things, which enhancethe self-consciousness and strategic position ofthe bureaucracy.” Due to this, the bureaucracyresists new programmes and methods as theythreaten its (bureaucracy’s) strong position.Under such circumstances, the executive appealsto the public opinion.

However the major issue in this sectionremains the complexity of minister-civil servantrelationship wherein we have to examine as towhat is the environment in which the two ofthem function and what are the guiding factorswhich shape the relationship and what shouldbe the ideal course in which such relationshipshould move. The issue culminates into theargument between Neutral bureaucracy vsCommitted bureaucracy or ‘politicized’bureaucracy.

Herein we discuss the core issue ofaccountability and control (i.e., how to ensurethat the bureaucracy operates with legality,efficiency and effectiveness while its operationalautonomy and morale is not curbed excessivelyunder the influence of controls) in the light ofpolitical influences which are an essential featureof administrative bureaucracy. The politicalenvironment under which the bureaucracyfunctions both helps and curtails its freedom.Political control of bureaucracy makes it immuneto direct public scrutiny as the bureaucracyfunctions under ministerial responsibility andremains anonymous behind the politicalexecutive. However this very anonymitysometimes comes at the expense of politicalneutrality which frequently comes underpressure and the bureaucrats start serving thepolitical party in power rather than theconstitution for which they had sworned.Compromise on political neutrality brings in the


casualty of another cherished bureaucratic valueof impartiality. Thus the trinity of politicalneutrality, anonymity and impartiality whichmakes bureaucracy the useful machine it is getsjeopardized under the influence of politicalinfluence. So whether bureaucracy should bemade a totally autonomous institution free fromany political control? The answer is no, becausesuch an unanswerable disposition wouldunleash the evil of absolutism sleeping withinthe bureaucracy.

Thus another issue within the complicatedissue of minister-civil servant relationship is asto how to preserve the proverbial neutrality,anonymity and impartiality of the bureaucracywhile operating under the influence of thepolitical executive or how to keep thebureaucracy efficient and effective despite thewavering political environment in which itfunctions.

The first step to examine the minister-civilservant relationship is to identify the factorswhich determine the nature of relationshipbetween minister and civil servant.

The conventional view of publicadministration is based upon the dichotomy ofpolitics and administration i.e., administrationand politics should be kept separate. Politics orpolicy making is the proper activity of thelegislative bodies and administration is theproper activity of administrators who carry outpolicies. It is opposed to any political role of thecivil servants. It visualizes the relationshipbetween the administrator and the politician interms of a neat division of labor – the politicianformulates the policy and the administratorexecutes it. The bureaucrat acts as pure advisorto his political master, presents facts of the case,suggests lines of action and implications ofalternative policies. It is the prerogative of thepolitical master to decide the policy. Thebureaucrat is expected to implement the policyfaithfully, whatever the decision. He is to beanonymous and neutral in the discharge of hisduty. He is expected to render impartial advicewithout fear or favor. The doctrine of neutralityand anonymity has been one of the fundamentaltenets of the Weberian bureaucracy.

The planners in India too subscribed to theWeberian ideal of neutral civil service. Animpersonal, strictly rule-bound, neutralbureaucracy was expected not only to providethe necessary administrative objectivity but also

enhance the democratic principle of equality andprovide protection from arbitrary rule byadhering to the concept of neutrality. Thetraditional concept of neutrality, however, hasbeen challenged on many grounds. The earlierconcept of separation of politics andadministration in watertight compartments isconsidered no more valid. The role of the CivilService has been changing from being a mereagent of the political executive to that ofcollaboration with it. The involvement ofbureaucracy in political arena is now widelyprevalent.

This breakdown of the theory of neutrality hascome about because of a number of reasons:

1. The processes of policy making are nolonger confined to the political executive.

The truth is that the bureaucrats play animportant role in policy formulation,perceived to be the exclusive preserve ofelected politicians. This has happenedbecause the statutes passed by theparliament are not clear enough. Thelegislative behavior follows no consistentpattern. Whereas, some measures are toodetailed, some only identify the problem. Theminister is rarely an expert in the work ofhis department or the techniques of publicadministration. He merely has general ideasin line with the political ideology of hisparty, but he often is not sure as to what isthe best solution to a particular problem. Heis therefore, forced to rely on his permanentstaff for facts and advice. In effect then, it isthe Administrator who has the major rolein framing the policy.

2. The decline of neutrality can be attributedto the demands and pressures of coalitionpolitics. In coalition governments, ministersare busy in the power game andmaneuvering for their survival, and haveneither time nor inclination to guide, directand control their department orbureaucracy. Also at times, the legislativeprocess is so stormy and full of diverseviews that a statute passed incorporates anumber of contradictory policy guidelines.The necessity of reaching a compromisesolution to hold the coalition together leadsthe legislators to use vague language andthe administrator has to use his ownjudgment to interpret the policy. Therefore,


bureaucracy has clearly made inroads inpolicy making and despite the regulationsgoverning the civil servants they have beenpoliticized considerably.

3. According to some political commentators,the classical theory of civil service neutralitypresupposes agreement on principlesfundamental to democracy. In other words,neutral, value-free bureaucracy is possibleonly in a society where consensus existson values; but in transitional societies likeIndia, where dissent and conflict exist; it istoo much to expect anyone to be neutral.

4. Especially for a developing country likeIndia where speedy socio-economicdevelopment has to be steadily pushedthrough, the nature and character ofbureaucracy assumes special significance.The involvement of civil servants innumerous decisions be it the location of asteel plant or a school building in a village,makes them partners in development alongwith the politicians. Their value preferencesget inextricably mixed up with technicaladvice. In the context of large-scale welfareprograms therefore, absolute neutrality isnot practically possible.

Thus the idea of committed bureaucracycomes into picture which stands for a certaincommitment to the goals and objectives of thestate. Moreover, neutrality cannot be allowed todegenerate into disinterestedness. The successfulcarrying out of developmental tasks requires onthe part of administrators not only qualities ofinitiative and leadership but also a sense ofemotional integration with the policies andprograms and identification with the interestsof the common man. Thus the idea ofbureaucracy as a neutral instrument in theconduct of public affairs stood refuted as theconcept of politics-administration dichotomy.

The concept of ‘committed bureaucracy’ washowever much contested in the political andadministrative circles. It was alleged that it woulddegenerate into what is called as ‘politicizedbureaucracy’ i.e., it would destroy the characterof the neutral bureaucracy and would create abreed of pliable civil servants who would alwayssay “Yes Minister” and would be ready to crawlwhen asked to bend by their political masters.In practice however those fears of the critics havecome to life, commitment has indeed assumedthe perverted form of politicization and

sycophancy. Very often it is seen thatbureaucracy simply acts according to the dictatesof the political executive without anyindependent examination of issues.

This trend of excessive politicization ofbureaucracy can be attributed to the ever-growing political interference in the affairs ofadministration. Political interference andcommitted/neutral administration cannot co-exist. While the administrators do not perceivetheir role in policy making as subservient to thepolitical leaders because of their knowledge andexpertise, yet they have to conform to theprerequisites of representative politics. Thepolitical leaders claim to be the truerepresentatives of the people and thus claim toknow the values of the people. Because of theirsuperior position they succeed in dictating theterms to the bureaucrats. The bureaucrats whoare not obliging enough soon find themselves introuble. The political masters have many meansof coercion–both overt and covert. Politicalinterference in all matters including those wherethe statutory power is vested in the civil servantsis a constant phenomenon. There are numerousinstances of use of transfers, promotion,supersession and compulsory retirement fromservice by elected politicians as tools to silencethe voice of dissent and expression of differenceof opinion.

Moreover, politicization works the other wayround also. Many administrators use politicalinfluence or forge alliance with the politician tobrighten their own career prospects. They takeadvantage of the amateur politician; exploit hisweakness particularly in times of a fluid politicalsituation and turn out to be autonomous andirresponsible. This is an equally grim scenario.

What emerges out of the analysis is thatwhether there is collision or collusion betweenthe political executive and the bureaucracy, inboth cases it leads to organizational imbalanceand ultimately the governance suffers.

Commission’s Views

Expressing concern over the deterioratingadministrative standards, the governmentappointed the Administrative ReformsCommission (ARC) in 1966 to conduct acomprehensive study of the administrativesystem and suggest remedies. The two mostimportant areas touched upon by the ARC in itsreports were: (a) Minister – Civil Servants


relationship, wherein the ARC emphasized theneed for the de-politicization of the services, and(b) the creation of a climate and culture ofadministration that would help assert thegrowth of healthy personal relationship betweenCivil Servants and Minister. The ARC tookcognizance of the fact that proper relationshipbetween the political executive and bureaucracyis a matter of highest importance to theadministrative performance of government. Itobserved that the existing pattern of relationshipwas different from what was envisaged. Moreand more cases of deviation were coming tonotice. For instance the extent of bureaucraticinvolvement in politics was exceptionally high,there was frequent use of transfers and postingsto manipulate bureaucracy, there was unholynexus between politicians and bureaucracy, etc.which was taking its toll on administrativeefficiency.

Therefore, corrective measures were requiredto restore the health of the system.

The ARC stressed on the urgency to preventbureaucracy’s aggressive role in politics and alsoon the need to check arbitrary interference ofpoliticians in administrative affairs. It believedthat both Minister and Civil Servants mustappreciate rather than belittle each others’ workand attempt maximum accommodation of oneanother’s views. On the part of the politicalexecutive there should be, in the words of theARC,

A. Proper understanding of the administrativefunctions and recognition of itsprofessional nature.

B. Little interference as possible in servicematters, e.g. postings, transfers, promotions,etc.

C. No requests for departures from declaredand approved policies to suit individualcases.

Similarly, on the part of the civil service itasserts:

A. There must be a sincere and honest attemptto find out what the political head wantsand make the necessary adjustment inpolicies and procedures to suit his wishes.

B. Readiness to fall in line with his politicalchief in all matters, unless strong groundsindicate a different course.

In other words, it means an emotional andmental acceptance by the bureaucracy of the

ideology of the government policy to be executedby it.

Despite the valuable recommendations madeby the ARC to streamline the relationshipbetween the minister and the civil servants,nothing much seems to have changed becauseof political and administrative apathy. Makingthe matters worse is the growth in recent timesof a nexus between the politicians, criminals,police and the civil servants rooted in theconsiderations of “mutuality of benefit”. Anincreasing use of money and muscle power bypolitical parties in winning elections is ofcommon knowledge. Since the muscle power ismostly provided by the mafia and the criminals,a close nexus prevails between the politiciansand the criminals resulting in “criminalizationof politics”. This has been the main conclusionof the Vohra Committee Report of 1993submitted by the then Home Secretary, Mr. N.N.Vohra which was set up to look into thecriminalization of politics. The report observedthat the mafia and the criminals enjoyed thepatronage of politicians and the protection ofgovernment functionaries. It pointed out howthe nexus was virtually running a parallelgovernment, pushing the state apparatus intoirrelevance. Here the two elites – political andadministrative, join hands and become not onlythick friends but also grand thieves. Such a nexusis detrimental to public interest. Therefore, it wasfelt that corrective steps must be taken to ensurethat this evil nexus is curbed.

With this objective in mind, the PrimeMinister inaugurated a Conference of ChiefSecretaries in November 1996 on ‘An Agendafor an Effective and Responsive Administration.

The Conference emphasized the need forbringing about transformation in public servicesso as to make them more effective, clean,accountable and citizen friendly. The Conferencealso highlighted the necessity of adopting thecode of ethics for public services which not onlyregulates the role of the civil servants but alsospecifies the relationship between the employeesin public services and politicians, so that the basiccommitment of the civil servants towards thewelfare of the public and the principlesenshrined in the Constitution is reiterated.

Further, the 2nd ARC in its report onPersonnel administration emphasized on a needto safeguard the political neutrality and


impartiality of the civil services for which itbelieves that the onus lies equally on the politicalexecutive as well as the civil service

This aspect is recommended to be includedin the Code of Ethics for Ministers as well as theCode of Conduct for Public Servants. Further theCommission reiterated its recommendationmade in its Report on “Ethics in Governance”while examining the definition of corruptionunder the Prevention of Corruption Act, 1988,wherein it has been recommended that “abuseof authority unduly favoring or harmingsomeone” and “obstruction of justice” should beclassified as an offence under the Act. This wouldlead to the protection of honest and upright civilservants against arbitrary political interference.Moreover it also stressed upon the essentialityto lay down certain norms for recruitment ingovernment to avoid complaints of favoritism,nepotism, corruption and abuse of power. Thesenorms are:

i) Well defined procedure for recruitmentto all government jobs.

ii) Wide publicity and open competition forrecruitment to all posts.

iii) Minimization, if not elimination, ofdiscretion in the recruitment process.

iv) Selection primarily on the basis ofwritten examination or on the basis ofperformance in existing public/board/university examination with minimumweight to interview.

These principles are envisaged in the newCivil Services Bill which the commission hassuggested the government to bring.

Having said all this the real fruits of the effortscan come only if the government implementsthese recommendations which is in itself is anissue of concern as any such move is interpretedin the political circles as a move to dilute politicalcontrol over administration which is a taboo inthe political class of India. Further beyond thelimitations of organization and structures therehave been numerous instances of upright civilservants driven by morals that have resisted allthe attempts of politicization and held theirground defying fears of manipulation bytransfers, promotions, postings, etc. Soultimately structures and statutes could only helpup to a limited extent and primarily it is the menof conscience who could really help in bringinggood governance to the people.

LEGISLATIVE CONTROL OVER THEEXECUTIVE

Legislative control over administration impliesthe control of parliament over the government asofficials cannot be directly held accountable to theparliament owing to the principle of ministerialresponsibility and anonymity. Legislative controlover administration is exercised by means ofseveral tools like law making, question hour(interpellations), zero hour, half an hour discussion,short duration discussion, calling attention motion,adjournment motion, no confidence motion,censure motion, budgetary system, etc. Furtherthere are also means to exercise more specificcontrol through parliamentary committees likePublic Accounts Committee, Estimates committee,Committee on Public Undertakings, Committee onSubordinate Legislation, Committee onGovernment Assurances, Departmental StandingCommittees, etc. Some are discussed below as:

• Zero Hour: Unlike the Question Hour, theZero Hour is not mentioned in the rules ofprocedure. Thus it is an informal deviceavailable to the members of the parliamentto raise matters without any prior notice.The Zero Hour starts immediately after theQuestion Hour and lasts until the agendafor the day (i.e., regular business of theHouse) is taken up. In other words, thetime gap between the Question Hour andthe agenda is known as Zero Hour. It isan Indian innovation in the field ofparliamentary procedures and has been inexistence since 1962.

• Half-an-Hour Discussion: It is meant forraising a discussion on a matter ofsufficient public importance which hasbeen subjected to a lot of debate and theanswer to which needs elucidation on amatter of fact. The Speaker can allot threedays in a week for such discussions. Thereis no formal motion or voting before theHouse.

• Short Duration Discussion: It is alsoknown as two hour discussion as the timeallotted for such a discussion should notexceed two hours. The members of theParliament can raise such discussions on amatter of urgent public importance. TheSpeaker can allot two days in a week for


such discussions. There is neither a formalmotion before the house nor voting. Thisdevice has been in existence since 1953.

• Other Discussions: In addition to theabove discussions, there are various otheroccasions available to the members ofParliament to raise discussions and debatesto examine and criticize the administrationfor its lapses and failures. These includethe following:

a. Inaugural speech of the President (i.e.,Motion of Thanks)

b. Introduction of several bills for enactmentof laws (i.e. debates on legislation)

c. Introduction and passing of resolutions onmatters of general public interest

• Calling Attention: It is a notice introducedin the Parliament by a member to call theattention of a minister to a matter of urgentpublic importance and to seek anauthoritative statement from him on thatmatter. Like the Zero Hour, it is also anIndian innovation in the parliamentaryprocedure and has been in existence since1954. However, unlike the Zero Hour, it ismentioned in the rules of procedure.

• Adjournment Motion: It is introduced inthe Parliament to draw attention of theHouse to a matter of urgent publicimportance. This motion needs the supportof 50 members to be admitted. As itinterrupts the normal business of theHouse, it is regarded as an extraordinarydevice. It involves an element of censureagainst the government and hence RajyaSabha is not permitted to make use of thisdevice.

The discussion on an adjournment motionshould last for not less than two hours and thirtyminutes. The right to move a motion for anadjournment of the business of the House issubject to the following restrictions:

1. It should raise a matter which is definite,factual urgent and of public importance;

2. It should not cover more than one matter;3. It should be restricted to a specific matter

of recent occurrence and should not beframed in general terms;

4. It should not raise a question of privilege;5. It should not revive discussion on a matter

that has been discussed in the same session;

6. It should not deal with any matter that isunder adjudication by a court; and

7. It should not raise any question that canbe raised on a distinct motion.

• No Confidence Motion: Article 75 of theConstitution states that the Council ofMinisters shall be collectively responsibleto the Lok Sabha. It means that theministry stays in office so long as it enjoysconfidence of the majority of the membersof the Lok Sabha. In other words, the LokSabha can remove the ministry from officeby passing the No Confidence Motion. Themotion needs the support of 50 membersto be admitted.

• Budgetary System: This is the mostimportant technique of parliamentarycontrol over administration. The Parliamentcontrols the revenues and expenditures ofthe government through enactment of thebudget. It is the ultimate authority tosanction the raising and spending ofgovernment funds. It can criticize thepolicies and actions of the government andpoint out the lapses and failures ofadministration during the process ofenactment of the budget.

Unless the Appropriation Bill and theFinance Bill are passed, the executive cannotincur expenditure and collect taxes respectively.(For details see chapter on “FinancialAdministration”)

• Audit System: This is an important tool ofparliamentary control over administration.The Comptroller and Auditor General ofIndia (CAG), on behalf of the Parliament,audits the accounts of government andsubmits an annual ‘Audit Report’ aboutthe financial transactions of thegovernment. The report of CAG highlightsthe improper, illegal, unwise, uneconomicaland irregular expenditures of thegovernment. The CAG is an agent of theParliament and is responsible only to it (i.e.,Parliament). Thus the financialaccountability of the government to theParliament is secured through the auditReport of the CAG.

• Public Accounts Committee: Thiscommittee was set up first in India in 1921under the provisions of the Government ofIndia Act of 1919 and has since been inexistence. At present it consists of 22


members (15 from the Lok Sabha and 7from the Rajya Sabha). The members areelected by the Parliament every year fromamongst its members according to theprinciple of proportional representation bymeans of the single transferable vote. Thus,all parties get due representation in it. Theterm of office of the members is one year.A minister cannot be elected as a memberof the Committee. The Chairman of theCommittee is appointed by the Speakerfrom amongst its members. Until 1966-67,the Chairman of the Committee belongedto the ruling party. However, since then(i.e., 1967) a convention has developedwhereby the Chairman of the committeeis selected invariably from the Opposition.

The function of the Committee is to examinethe annual audit reports of the Comptroller andAuditor General of India (CAG) which are laidbefore the Parliament by the President. In thisfunction the Committee is assisted by the CAG.

The CAG submits three audit reports to thepresident, namely, audit report on appropriationaccounts, audit report on finance accounts andaudit report on public undertakings.

The committee examines public expenditurenot only from the legal and formal point of viewto discover technical irregularities but also fromthe point of view of economy, prudence, wisdomand propriety to bring out the cases of waste,loss, corruption, extravagance, inefficiency andnugatory expenses.

In more detail the functions of the committeeare:

1. To examine the appropriation accountsand the finance accounts of the Uniongovernment and any other accounts laidbefore the Lok Sabha. The appropriationaccounts compare the actual expenditurewith the expenditure sanctioned by theParliament through the appropriation Act,while the finance accounts show theannual receipts and disbursements of theUnion Government.

2. In scrutinizing the appropriation accountsand the audit report of CAG on it, theCommittee has to satisfy itself that:

(a) The money that has been disbursed waslegally available for the applied service orpurpose;

(b) The expenditure conforms to the authoritythat governs it; and

(c) Every re-appropriation has been made inaccordance with the related rules.

3. To examine the accounts of state corpo-rations, trading concerns andmanufacturing projects and the auditreport of CAG on them (except those publicundertakings which are allotted to thecommittee on public undertakings.)

4. To examine the accounts of autonomousand semi-autonomous bodies, the audit ofwhich is conducted by the CAG.

5. To consider the report of the CAG relatingto an audit of any receipt or to examinethe accounts of stores and stocks.

6. To examine the money spent on anyservice during a financial year in excess ofthe amount granted by the Lok Sabha forthat purpose.

On the role played by the Committee, AshokChanda observed: “Over a period of years, theCommittee has entirely fulfilled the expectationthat it should develop into a powerful force inthe control of public expenditure. It may beclaimed that the traditions established andconventions developed by the Public AccountsCommittee conform to the highest traditions ofa parliamentary democracy.”

However, the effectiveness of the role of theCommittee is limited by the following:

(a) It is not concerned with the questions ofpolicy in broader sense.

(b) It conducts a post-mortem examination ofaccounts (showing the expenditure alreadyincurred).

(c) It cannot intervene in the matters of day-to-day administration.

(d) Its recommendations are advisory and notbinding on the ministries.

(e) It is not vested with the power ofdisallowance of expenditures by thedepartments.

(f) It is not an executive body and hence,cannot issue an order. Only the Parliamentcan take a final decision on its findings.

Estimates Committee: The origins of thiscommittee can be traced to the Standing FinancialCommittee setup in 1921. The first EstimatesCommittee in the post-independence era wasconstituted in 1950 on the recommendation of


John Marhai, the then Finance Minister.Originally, it had 25 members but in 1956 itsmembership was raised to 30. All the thirtymembers are from Lok Sabha only. The RajyaSabha has no representation in this Committee.These members are elected by the Lok Sabhaevery year from amongst its members, accordingto the principles of proportional representationby means of a single transferable vote. Thus, allparties get due representation in it. The term ofoffice is one year. A minister cannot be electedas a member of the Committee. The Chairmanof the Committee is appointed by the Speakerfrom amongst its members. The Chairman of theCommittee is invariably from the ruling party.

The function of the Committee is to examinethe estimates included in the budget and suggest‘economies’ in public expenditure. Hence, it hasbeen described as a ‘continuous economycommittee.’

In more detail, the functions of the Committeeare:

(a) To report what economics, improvementsin organization, efficiency and administrativereforms consistent with the policy underlyingthe estimates may be affected.

(b) To suggest alternative policies in order tobring about efficiency and economy inadministration.

(c) To examine whether the money is well laidout within the limits of the policy impliedin the estimates.

(d) To suggest the form in which the estimatesshall be presented to Parliament:

The Committee shall not exercise its functionsin relation to such public undertakings as areallotted to the Committee on PublicUndertakings.

The Committee may continue theexamination of the estimates from time to time,throughout the financial year and report to theHouse as its examination proceeds. It shall notbe incumbent on the Committee to examine theentire estimates of any one year. The demandsfor grants may be finally voted despite the factthat the Committee has made no report.

However, the effectiveness of the role of thecommittee is limited by the following:

(i) It examines the budget estimates onlyafter they have been voted by the

Parliament, and not before that.(ii) It cannot question the policy laid down

by the Parliament.(iii) Its recommendations are advisory and

not binding on the ministries.(iv) It examines every year only certain

selected ministries and departments.Thus, by rotation, it would cover all ofthem over a number of years.

(v) It lacks the expert assistance of the CAGwhich is available to the Public AccountsCommittee.

(vi) Its work is in the nature of a post-mortem

• Committee on Public Undertakings: ThisCommittee was created in 1964 on therecommendation of the Krishna MenonCommittee. Originally, it had 15 members(10 from the Lok Sabha and 5 from theRajya Sabha). But in 1974, its membershipwas raised to 22 (15 from the Lok Sabhaand 7 from the Rajya Sabha). The membersare elected by the Parliament every yearfrom amongst its members according to theprinciple of proportional representation bymeans of a single transferable vote. Thus,all parties get due representation in it. Theterm of office of the members is one year.A minister cannot be elected as a memberof the Committee. The Chairman of theCommittee is appointed by the Speakerfrom amongst its members who are drawnfrom the Lok Sabha only. Thus, themembers of the Committee who are fromthe Rajya Sabha cannot be appointed asthe Chairman.

The functions of the Committee are:

(a) To examine the reports and accounts ofpublic undertakings.

(b) To examine the reports, if any, of theComptroller and Auditor-General on publicundertakings.

(c) To examine, in the context of autonomyand efficiency of public undertakings,whether the affairs of the publicundertakings are being managed inaccordance with sound business principlesand prudent commercial practices.

(d) To exercise such other functions vested inthe Committee on Public Accounts and theCommittee on Estimates in relation to


public undertakings as may be allotted tothe Committee by the Speaker from timeto time.

The Committee shall not examine andinvestigate any of the following:

(i) Matters of major government policy asdistinct from business or commercialfunctions of the Public undertakings.

(ii) Matters of day-to-day administration.(iii) Matters for the consideration of which

machinery is established by any specialstatute under which a particular publicundertaking is established.

Further, the effectiveness of the role of theCommittee is limited by the following:

(a) It cannot take up the examination of morethan ten to twelve public undertakings ina year.

(b) Its work is in the nature of a post-mortem.(c) It does not look into technical matters as

its members are not technical experts.(d) Its recommendations are advisory and not

binding on the ministries.• Committee on Subordinate Legislation:

This Committee was constituted in 1953.It consists of 15 members including theChairman, who are nominated by theSpeaker. The term of office of the membersis one year. A minister cannot benominated as a member of the Committee.The Chairman of the Committee is drawnfrom the Opposition.

The function of the Committee is to examineand report to the Lok Sabha, whether the powersto make regulations rules sub-rules, by-laws andothers, conferred by the Constitution ordelegated by the Parliament to the executive, arebeing properly exercised by it. Each regulation,rule, sub-rule, by-law and others, is technicallyknown as ‘Order’. After each such order is laidbefore the Lok Sabha, the Committee shallconsider.

(i) Whether it is in accord with the generalobjects of the Constitution or the actpursuant to which it is made.

(ii) Whether it contains matter, which inthe opinion of the committee, shouldmore properly be dealt within an act ofparliament.

(iii) Whether it contains imposition of any

tax.(iv) Whether it directly or indirectly bars the

jurisdiction of the courts.(v) Whether it gives retrospective effect to

any of the provisions in respect of whichthe Constitution or the act does notexpressly give any such power.

(vi) Whether it involves expenditure fromthe Consolidated Fund of India or thepublic revenues.

(vii) Whether it appears to make someunusual or unexpected use of thepowers conferred by the Constitution orthe act pursuant to which it is made.

(viii) Whether there appears to have beenunjustifiable delay in its publication orin laying it before the parliament.

(ix) Whether for any reason its form orpurport calls for any elucidation.

• Committee on Government Assurances:This Committee was constituted in 1953.It consists of 15 members including theChairman, who are nominated by thespeaker. The term of office of members isone year. A minister cannot be nominatedas a member of the Committee.

The function of the Committee is to examinethe assurances, promises, undertakings, and soon, given by ministers from time to time on thefloor of the Lok Sabha, and to report on:

(a) The extent to which such assurances,promises, undertakings have beenimplemented.

(b) Whether such implementation has takenplace within the minimum time necessaryfor the purpose.

• Departmental Standing Committees: Thereare 24 Departmentally Related StandingCommittees covering under their jurisdictionall the Ministries/Departments of theGovernment of India. Each of theseCommittees consists of 31 Members - 21from Lok Sabha and 10 from Rajya Sabhato be nominated by the Speaker, Lok Sabhaand the Chairman, Rajya Sabha,respectively. Provided that a memberappointed as a Minister, shall not benominated as, or continue as, a member ofany Committee. The term of Office of theseCommittees does not exceed one year.

A full-fledged system of 17 DepartmentallyRelated Standing Committees came into being


in April, 1993. Some examples: Committee onCommerce; Committee on Home Affairs;Committee on Human Resource Development,etc.

Till 13th Lok Sabha, each Standing Committeeconsisted of not more than 45 members 30 to benominated by the Speaker from amongst themembers of Lok Sabha and 15 to be nominatedby the Chairman, Rajya Sabha from amongst themembers of Rajya Sabha. However, withrestructuring of DRSCs in July, 2004 each DRSCconsists of 31 Members - 21 from Lok Sabha and10 from Rajya Sabha.

With reference to the Ministries/Departmentsunder their purview, the functions of theseStanding Committees are:-

a) to consider the Demands for Grants of therelated Ministries/Departments and reportthereon. The report shall not suggestanything of the nature of cut motions;

b) to examine Bills, pertaining to the relatedMinistries/Departments, referred to theCommittee by the Chairman or theSpeaker, as the case may be, and reportthereon;

c) to consider the annual reports of theMinistries/Departments and reportthereon; and

d) to consider national basic long term policydocuments presented to the Houses, ifreferred to the Committee by the Chairmanor the Speaker, as the case may be, andreport thereon:

The Standing Committees does not considermatters of day-to-day administration of therelated Ministries/Departments and therecommendations of these committees areadvisory in nature and hence, not binding onParliament.

The following procedure shall be followedby each of the Standing Committees in itsconsideration of the Demands for Grants andmaking a report thereon to the Houses, after thegeneral discussion on the Budget in the Housesis over, and the Houses are adjourned for a fixedperiod:-

a) the Committee shall consider the Demandsfor Grants of the related Ministries duringthe aforesaid period;

b) the Committee shall make its report withinthe specified period;

c) There shall be a separate report on theDemands for Grants of each Ministry;

d) The demand for grants shall be consideredby the House with respect to the reports ofthe Standing Committee.

The following procedure shall be followedby each of the Standing Committees in examininga Bill and making a report thereon:-

a) the Committee shall examine only suchBills introduced in either of the Houses asare referred to it by the Chairman or theSpeaker, as the case may be; and

b) the Committee shall consider the generalprinciples and clauses of such Bills andshall make report thereon within such timeas may be specified by the Chairman orthe Speaker, as the case may be.

The Departmentally Related StandingCommittee System is a path-breaking endeavourof the Parliamentary surveillance overadministration. With the emphasis of theirfunctioning to concentrate on long-term plans,policies guiding the working of the Executive,these Committees provide necessary direction,guidance and inputs for broad policyformulations and in achievement of the long-term national perspective by the Executive.

The merits of the standing committee systemin the Parliament are:-

(i) Their proceedings are devoid of any partybias.

(ii) The procedure adopted by them is moreflexible than in the Lok Sabha.

(iii) The system makes parliamentary controlover executive much more detailed, close,continuous, in-depth and comprehensive.

(iv) The system ensures economy and efficiencyin public expenditure as the ministries/Departments would now be more carefulin formulating their demands.

(v) They facilitate opportunities to all themembers of Parliament to participate andunderstand the functioning of thegovernment and contribute to it.

(vi) They can avail of expert opinion or publicopinion to make the reports. They areauthorized to invite experts and eminentpersons to testify before them andincorporate their opinions in their reports.

(vii)The opposition parties and the RajyaSabha can now play a greater role in


exercising financial control over theexecutive.

However the major issue in this section is thelimitations and ineffectiveness of various toolsof legislative control. This issue however pansout to the argument as to whether the legislatureis able to exercise effective control over theexecutive or not.

The legislative control over administrationin parliamentary countries like India is moretheoretical than practical. In realty, the controlis not as effective as it ought to be. The legislativecontrol over the government in India could notbe termed as strong and there are various reasonsfor it. The first and foremost is the nature of ourparliamentary form of government wherein thecouncil of ministers is drawn out from the groupthat holds the majority in the parliament.Moreover all the decisions in a parliamentaryform of government are taken by the majoritytherefore as long as the council of ministersenjoys the support of the majority there is hardlyanything substantial that the parliament coulddo to control the executive. Further there areother reasons which come into picture as persituation and settings viz.

1. In India the size of administration hasgrown so large in terms of volume of workand complexity that the parliament hasneither the time nor the expertise to controlthe administration.

2. The technical nature of some issues likethe financial grants is beyond the full andproper understanding of the laymenparliamentarians. Further the increasedrecourse to ‘Guillotine’ has reduced thescope of financial control.

3. The increased importance of ‘delegatedlegislation’ has further reduced the powersof the parliament in making the details ofthe law. This has in fact increased thepowers of the bureaucracy which is now,more free to hide the devil in the details.

4. The frequent disruptions in the workingof the parliament due to political reasonsor other reasons by the opposition orotherwise further compress the limited timeavailable to the parliament for functionsof scrutiny and control of the acts of theexecutive.

5. The frequent promulgation of ordinancesby the President further dilutes the powers

of the parliament in legislation andscrutiny.

6. The most concerning reason however isthe extensive limitations imposed on therole and functioning of the parliamentarycommittees which have been reduced toan eyewash due to the following reasons:

a) They are only made to make a postmortem analysis of the work, whichmakes the preventive aspect of controlover the executive difficult.

b) They are not allowed to question thepolicy decisions of the government.

c) It can hardly look into the technicalmatters as its matters are drawn fromthe members of the parliament whohardly have any understanding oftechnical matters.

d) Their recommendations are of advisorynature and are not binding on theparliament.

Thus the parliamentary committees end upwith hardly any ground to make meaningfulcontribution to the process of legislative control.

However this opinion is not acceptable toPaul. H. Appleby who is still very critical to theparliamentary control in India. He writes thatthe members of parliament greatly exaggeratethe importance of the report of the CAG. This inturn increases timidity of public servants at alllevels, making them unwilling to take initiativesand for actions and subsequently unwilling totake responsibility of their decisions, forcingdecisions to be made by a slow and cumbersomeprocess of reference and conference in whicheverybody finally shares some part ofresponsibility of making the decision, not enoughgets done and what gets done is done too slowly.

Moreover the parliament seems strangelyinclined to make too ready concessions to someof the self interest demands of some pressuregroups from the business community and otherareas and enforce corresponding changes ingovernment’s decisions. Further the parliament’sendorsement of the formerly small and narrowapproach of the public service commission to itsown functions in the mistaken belief that thisstrengthens the merit system, undermines theresponsibility of the ministries and thereby,undermines the responsibility of the parliament.

Finally he targets the apprehensions of theparliamentarians behind their reluctance to


delegate their powers of detail. This creates apossessive culture right down the hierarchy fromministers to secretaries to managing directors toothers, thus creating too much control whichactually becomes ineffective and stagnated dueto this inhibitionists mindset, defeating its verypurpose.

Further more in present context the role ofcoalition politics also increases the degree oflegislative control over administration. We haveseen several times in the past that when theruling party is dependent on some other partyfor majority in the Parliament, it becomes moreresponsive at least in the sense that it is found tobecome more sensitive to the concerns indicatedby the coalition partner, however this increasedefficacy seems to be working other ways whenany member from the coalition partner is allegedto be involved in some irregularities. In suchcases the same coalition constraints which hadincreased the degree of legislative control is foundto demolish the norms of legislative control andthe administration/executive/government startsprotecting the partner defying all the legislativenorms.

Another factor which seems to work in favorof increasing the degree of legislative controlover the administration in the present times isthe increased role of the media. Mass media inIndia has grown and developed very rapidly inIndia especially in the past decade. The growthof 24x7 news channels and the increasedpenetration of satellite television in the countryhas vested great powers in the media to createpublic opinion. The media keeps the people andthe leaders informed about the activities of thegovernment continuously. The MPs have beenfound to use media reports frequently in thedebates of the parliament. Several stingoperations have exposed not only the people inthe government but also people in the exclusivepublic domain and have forced them to answerand explain their actions. However if we are toquantify the achievements of the media the onlymajor effect it can produce is in the creation of apublic opinion in case of any gross violation ofthe constitution or public interest by thegovernment, which could have any impact atthe time of elections.

Thus it is difficult to say conclusively as towhether the legislature is able to exerciseoptimum levels of control over the executive.However there is much which the legislature

could do particularly by its powers of framingnew laws and regulations. For example thesecond ARC has recommended a Code of Ethicsfor Civil Servants under which:

A. A set of ‘Public Service Values’ towardswhich all public servants should aspire,should be defined and made applicable toall tiers of Government and para Governmentorganizations. Any transgression of thesevalues should be treated as misconduct,inviting punishment.

B. A code of Ethics for Regulators in form ofa comprehensive and enforceable code ofconduct should be prescribed for allprofessions with statutory backing.

C. An ethical Framework for Ministers. Inaddition to the existing Code of Conductfor Ministers, there should be a Code ofEthics to provide guidance on howMinisters should uphold the higheststandards of constitutional and ethicalconduct in the performance of their duties.

D. Dedicated units should be set up in theoffices of the Prime Minister and the ChiefMinisters to monitor the observance of theCode of Ethics and the Code of Conduct.The unit should also be empowered toreceive public complaints regardingviolation of the Code of Conduct.

E. The Prime Minister or the Chief Ministershould be duty bound to ensure theobservance of the Code of Ethics and theCode of Conduct by Ministers. This wouldbe applicable even in the case of coalitiongovernments where the Ministers maybelong to different parties.

F. An annual report with regard to theobservance of these Codes should besubmitted to the appropriate legislature.This report should include specific cases ofviolations, if any, and the action takenthereon.

G. The Code of Ethics, the Code of Conductand the annual report should be put inthe public domain.

Apart from these, there are other veryimportant recommendations related to theLokpal/Lokayukta, revision of the constitutionalprotection available to the civil servants underArticle 311, review of the definition of office ofprofit, recasting of the Benami Transactions actand the Anti Corruption act, etc. If parliament


could bring effective and meaningful legislationson these vital matters concerning the role andthe functioning of the executive, it will go veryfar in strengthening accountability and controlof the executive and thus ensuring goodgovernance.

JUDICIAL CONTROL OVERADMINISTRATION

It refers to the powers of the courts to keepthe administrative acts within the limits of law.It also implies the right of an aggrieved citizento challenge the wrongful acts of administratorsin a court of law. Judicial protection is availableto the citizens vis-à-vis actions of the permanentexecutive/bureaucracy and the politicalexecutive/ministers. Judicial control is alsoavailable to the citizens vis-à-vis actions of thelegislature in form of judicial review. Unlike theexecutive control and legislative control whichis exercised by the executive and legislature onbehalf of the people, judicial control can beavailed by the citizens directly from the courts.Apart from the Governors of the states and thePresident of India who cannot be sued for theirofficial acts, everyone else can be sued in the courtof law subject to little or more exceptions.

Judiciary is the guardian of the sanctity ofthe constitution so any act of administration orthe legislature is subject to judicial review if thereis any doubt regarding their consonance withthe constitution. Judiciary can interfere in theadministrative acts under the followingcircumstances:

1. Lack of jurisdiction, that is, when theadministrator acts without authority orbeyond the scope of his authority or outsidethe geographical limits of his authority. Itis technically called ‘overfeasance’.

2. Error of law, that is, when theadministrator misinterprets the law andthus imposes upon the citizen, obligationswhich are not required by the content oflaw. It is technically called misfeasance.

3. Error in fact finding, that is, when theadministrator makes a mistake in thediscovery of facts and acts on wrongpresumptions.

4. Abuse of authority, that is, when theadministrator uses his authority (or powerof discretion) vindictively to harm someperson. It is technically called as

malfeasance.5. Error of procedure, that is, when the

administrator does not follow the laid downprocedure.

Further, the judiciary exercises control overadministration through the following methodsor techniques:

1. Judicial review.2. Statutory appeal.3. Suits against the government.4. Suits against public officials.5. Extraordinary remedies which are effected

through the following six writs:a) Habeas Corpus.

b) Mandamus.

c) Prohibition.

d) Certiorari.

e) Quo Warranto.

f) Injunction.

Some are discussed below as:

Judicial Review: It is the power of the courtsto be violative of the Constitution (ultra vires),they can be declared as illegal, unconstitutionaland invalid by the courts. The scope of judicialreview in the USA is much wider than in Britain.India falls in between the two due to theconstitutional and statutory limitations (on thescope of judicial review).

Statutory Appeal: The parliamentary statute(i.e. law or act) may itself provide that in aspecific type of administrative act, the aggrievedcitizen will have the right of appeal to the courts.Under such circumstances, the statutory appealis possible.

Suits Against Government: In India, Article300 of the Constitution governs the suability ofthe state. It states that the Union Governmentand State Government can be sued, subject tothe provisions of the law made by the Parliamentand the state legislature respectively. The stateis suable in contracts. This mans that thecontractual liability of the Union Governmentand the State Government is same as that of anindividual under the ordinary law of contact.However, in case of torts, the portion is different(a tort is a wrongful action or injury for which a


suit for damages lies). In this regard, a distinctionis made between the sovereign and non-sovereign functions of the state. The state, forthe tortuous acts of its servants, can be sued onlyin case of its non sovereign functions but not incase of its sovereign function.

In Britain, there has been tradition immunityof the state (i.e., Crown) from any legal liabilityfor any action. Suits against government incontract or tort were severely restricted. Suchrestrictions were relaxed and the situation wasimproved by the Crown Proceeding Act of 1947.The present position in Britain is that the Statecan be sued for the wrongful acts of its officialswhether in contracts or torts, with someexceptions.

In the USA, subject to a few exceptions, thestate cannot be sued in cases pertaining to torts.In other words, the State (either federalgovernment or state government) is immunefrom the tortuous liability of its servants, exceptin few cases.

In France, where the system of ‘DroitAdministratif’ prevails, the state assumesresponsibility for the official actions of itsservants and compensate the citizens for any losssuffered by them. The aggrieved citizens candirectly sue the state in the ‘administrativecourts’ and get the damages awarded. (Fordetails see ‘France’ under Administrative Systemchapter).

Suits Against Public Officials: In India, thePresident and the state governors enjoy personalimmunity from legal liability for their acts. Duringtheir term of office, they are immune from anycriminal proceedings, even in respect of theirpersonal acts. They cannot be arrested orimprisoned. However, after giving two months’notice, civil proceedings can be instituted againstthem during their term of office in respect of theirpersonal acts. The ministers do not enjoy suchimmunities and hence they can be sued inordinary courts like common citizens for crimesas well as torts.

Under the Judicial Officer’s Protection Actof 1850, the judicial officers are immune fromany liability in respect of their acts and hencecannot be used.

The civil servants are conferred personalimmunity from legal liability for official contractsby the Article 299 of the Constitution of India.In other cases, the liability of the officials is the

same as of any ordinary citizen. Civilproceedings can be instituted against them foranything done in their official capacity aftergiving a two months notice. As regards criminalliabilities, proceedings can be instituted againstthem for acts done in their official capacity withprior permission from the government.

The Monarch in Britain and the President inthe USA enjoy immunity from legal liability. Thelegally accepted phrase in Britain is. ‘The Kingcan do no wrong.’ Hence he cannot be sued inany court of law.

Extraordinary Remedies: These consist of thefollowing six kinds of writs issued by the courts.

(i) Habeas Corpus: It literally means “tohave the body of.” It is an order issuedby the court to a person who hasdetained another person, to produce thebody of the latter before it. The courtwill set the imprisoned person free ifthe detention is illegal. This writ is abulwark of individual liberty againstarbitrary detention.

(ii) Mandamus: It literally means ‘wecommand’. It is a command issued bythe court to a public official asking himto perform his official duties which hehas failed to perform.

(iii) Prohibition: It literally means ‘to forbid’.It is issued by a higher court to a lowercourt when the latter exceeds itsjurisdiction. It can be issued only againstjudicial and quasi-judicial authorities andnot against administrative authorities.Hence, its importance as a tool of judicialcontrol over administration is highlyrestricted.

(iv) Certiorari: It literally means ‘to becertified’ It is issued by a higher court to alower court for transferring the records ofproceedings of a case pending with it, forthe purpose of determining the legality ofits proceedings or for giving fuller and amore satisfactory effect to them than couldbe done in the lower court. Thus, unlikethe Prohibition which is only preventive,the Certiorari is both preventive as well ascurative like Prohibition. It can be issuedonly against judicial and quasi-judicialauthorities and not against administrativeauthorities.

(v) Quo Warranto: It literally means ‘by


what authority or warrant.’ It is issuedby the courts to enquire into the legalityof claim of a person to a public office.Therefore, it prevents illegal assumptionof public office by a person.

(vi) Injunction: It is issued by the courtasking a person to do a thing or refrainfrom doing it. Thus, it is of two kindsviz., mandatory and preventive. Themandatory injunction resembles the writof Mandamus but it is different. As putby M.P. Sharma, “Mandamus cannot beissued against private persons while theinjunction is primarily a process ofprivate law and only rarely a remedy inadministrative law. Mandamus is aremedy of common law while injunctionis the strong arm of equity.”

Similarly, preventive injunction resemblesthe writ of Prohibition but it is different. In thewords of M.P. Sharma, “Injunction is directedto the litigant parties while prohibition to thecourt itself. Also, while injunction recognizes thejurisdiction of the court in which the proceedingsare pending, prohibition strikes at suchjurisdiction.”

Writs in India

The following points can be noted in thiscontext.

(i) The courts can issue all the abovementioned writs. However, only the firstfive are mentioned in the Constitutionof India.

(ii) Article 32 of the Constitution authorizesthe Supreme Court to issue writs for theenforcement of the Fundamental Rightsof citizens guaranteed to them by theConstitution.

(iii) Article 226 of the Constitutionauthorizes High Courts to issue the writsnot only for the enforcement of theFundamental Rights of citizensguaranteed by the Constitution but alsofor other purposes. The writ jurisdictionof High Courts is wider than that of theSupreme Court.

(iv) Parliament (under Article 32) canempower any other court to issue thesewrits. Since no such provision has beenmade so far, only the Supreme Courtand the High Courts can issue the writsand not any other court.

Despite all the mechanisms in place the mostimportant issue in this section remains as towhether the judiciary has been able to dischargeits function of ensuring that the administrativeactions are performed within the spirit ofconstitution and good governance is deliveredto the citizens even at the bottom level. The moreinfluential opinion goes against the efficacy ofthe judiciary in this sense, which has beenattributed to a number of reasons which havebeen instrumental in reducing the effectivenessof judicial control over administration:

1. The judiciary cannot intervene inadministrative process on its own. Thecourts intervene only when the aggrievedcitizen takes the matter before them.Therefore, the judiciary lacks the suo motopower.

2. The control exercised by the courts is inthe nature of a post mortem control, thatis, they intervene after the damage is doneto the citizen by the administrative acts.

3. All administrative acts are not subject tojudicial control as the parliament mayexclude certain matters from thejurisdiction of the courts. For example theninth schedule items. Moreover there alsocertain Self denying ordinances of thejudiciary by which the judiciary deniesitself jurisdiction in certain matters on itsown accord.

4. The judicial process is slow andcumbersome as well as very expensivewhich makes almost impossible for thecommon man to seek judicial remedies tohis woes. Further, the judges being legalexperts cannot fully properly understandthe technical nature of administrative actswhich further adds to the dilatoriness ofthe judicial pronouncements.

5. The volume, variety, and complexity ofadministration have increased due towelfare orientation of the state which hasimposed serious limitations on the capacityof the courts to review each and everyadministrative act affecting the citizens.

6. Further, off late there have been certaininstances where judges even in the higherjudiciary have been found to act incollusion with the corrupt officers and therelated establishment. Though till date nojudge of the higher judiciary in India has


been impeached but there have beenserious allegations of misappropriationsagainst several of them like Justice SoumitraSen of the Calcutta High Court or JusticeDinakaran of the Sikkim High Court, toname a few of them.

7. The lack of clear definition of separationof powers between the legislature-executiveand the judiciary. Following which theconfrontation of the judiciary with thelegislature and the limitations of judicialactivism in this area, sets anotherimpediment in the road to judicial controlover administration. On the one hand theparliamentary privileges are not explicitlydefined because of which sometimes theparliament gets offended by thepronouncements of the judiciary and onthe other the laws related to contempt ofcourt are primitive and vague whichsometimes create unwarranted offences ofthe judiciary by the legislature and theexecutive.

Further, these reasons could be concretizedinto three important sub issues which are at thecore of all what is said and done in this reference.One is the inherent weaknesses in theconstitution itself related to the separation ofpowers between the judiciary-executive and thelegislature which stimulates as well as restrainsjudicial activism. Another is the powers of thecourts related to the contempt proceedingswhich have time and again restrained thescrutiny of the ‘irregular’ judges and alsorestricted the legislature and the executive frominitiating any type reforms in the judiciary. Thirdis the irresponsible behavior of the people whiledealing with the judicial instruments of PILs,which have further added to the volumes ofcases with the judiciary.

Foremost is the vague issue of separation of

powers whereby the judiciary constantly facesthe challenge of balancing the duty of protectingthe constitution at the same time not interferingwith the domain of rights of the legislature andthe executive. This problem surfaces itself everynow and then. For example in the Cash for queryscam some years ago, when the expulsion of theMPs from the parliament was challenged in thesupreme court, the apex court issued notice tothe parliament, which was taken as an offenceagainst the parliament by the speaker Mr.Somnath Chatterjee who refused to answer thenotice of the Supreme Court on the grounds thatexpulsion of the MPs was an exclusive right ofthe parliament to which it is not accountable tothe courts. The Supreme Court later upheld theexpulsion of the MPs and also the rights of theParliament vis-à-vis expulsion of the MPs,however attached the issue to the provisions ofjudicial review. However, it is not the judiciarywhich is always the infringer, even the legislatureand the executive have at times shown their

reluctance to obey the judiciary for example thefamous ceiling and demolition case of Delhiwhere both the legislature and the executiveconspired to offset the judicial orders to subvertit by passing several legislations and executiveorders. Further on the issue of implementing thedirections of the judiciary in response to a PILon initiating Police reforms the executive hasbeen trying to hide behind the immunity fromjudicial scrutiny, it possess regarding policydecisions.

Thus there have been cases of accidental ordeliberate infringement of the fine line separationof the domain of operations of the legislature,judiciary and the executive by either organ ofthe state, however this problem is not one of thosewhich could be sorted out by one legislation,pronouncement or an executive order, rather itis something which evolves over the period of


time and is contingent on the collectiveconscience of the society which is in itself in theprocess of evolution. However we must alwaysbe ready to give the society a chance and keepaccommodating and assimilating new ideaswhich address to the needs of changing times.

The other major sub-issue is related to thequestion as to what should be the nature andstructure of the powers of the courts related tocontempt proceedings. The answer of thisquestion is very vital as it has its relations withthe process of judicial reforms including theprime issues of reducing dilatoriness in judicialprocess and the idealizing the conduct of thejudges. Both these matters are of utmostimportance if we have to maintain the vitalityof the judiciary in the process of extractingaccountability from the other two organs of thestate and ensuring good governance. The sittingjudge of the Supreme Court, Markandeya Katjuin his one of the articles in THE HINDU wrotethat the test to determine whether an actamounts to contempt of court or not is that as towhether it makes the functioning of the judgesimpossible or extremely difficult. He furtherwrites that, much of our contempt law is ahangover from the British rule, but under Britishrule, India was not free and democratic. Hequotes the words of the Doyen of Indian Bar,Fali Nariman who said that the offence ofscandalizing the court is a mercurial jurisdictionin which there are no rules and no constraints.He further mentions about the reasons for theuncertainty in the law of contempt of court. Inthe Contempt of Court Act, 1971, there was nodefinition of what constitutes scandalizing thecourt, or what prejudices, or interferes with thecourse of justice. In a monarchy, the judge reallyexercises the delegated functions of the king, andfor this he requires dignity and majesty as a kingmust have to get obedience from his subjects. Butin a democracy there is no need for judges tovindicate their authority or pomp. Theirauthority will come from the public confidence.He finally concludes that the best shield andarmor of a judge is his reputation of integrity,impartiality and learning. An upright judge willhardly ever need to use the contempt power inhis judicial career.

Encouraged by views like this, thegovernment garnered the courage to initiate theprocess of judicial reform which was earlierassumed the exclusive domain of the judiciaryitself. In the same reference the 98th

Constitutional Amendment bill, 2003 wasprepared which ought to establish a NationalJudicial Council (NJC). The NJC was supposedto be presided by the CJI as its chairperson, twoseniormost judges of the Supreme Court, unionminister of law and justice and an eminentcitizen as its members. The following functionswere primarily envisaged for the NJC:

1. Recommend names for appointment ofjudges of the Supreme Court and HighCourt including the Chief Justice of theHigh Court.

2. Recommend for transfer of judges of HighCourts.

3. To formulate a code of ethics for thejudges.

4. To enquire suo-moto or on complaint thecases of misconduct and ‘deviant’ behaviorof judges and advice the CJI or the CJHCaccordingly after advice.

Further the 2nd ARC has also recommendedfor the constitution of the NJC as part of theethical framework for the Judiciary. To quoteits words:

1. A National Judicial Council should beconstituted, in line with universallyaccepted principles where the appointmentof members of the judiciary should be bya collegium having representation of theexecutive, legislature and judiciary. TheCouncil should have the followingcomposition:

• The Vice-President as Chairperson of theCouncil

• The Prime Minister• The Speaker of the Lok Sabha• The Chief Justice of India• The Law Minister• The Leader of the Opposition in the Lok

Sabha• The Leader of the Opposition in the Rajya

Sabha

In matters relating to the appointment andoversight of High Court Judges, the Council willalso include the following members:

• The Chief Minister of the concerned State.• The Chief Justice of the concerned High

Court.2. The National Judicial Council should be

authorized to lay down the code of


conduct for judges, including thesubordinate judiciary.

3. The National Judicial Council should beentrusted with the task of recommendingappointments of Supreme Court and HighCourt Judges.

4. It should also be entrusted the task ofoversight of the judges, and should beempowered to enquire into allegedmisconduct and impose minor penalties. Itcan also recommend removal of a judge ifso warranted.

5. Based on the recommendations of the NJC,the President should have the powers toremove a Supreme Court or High CourtJudge.

6. Article 124 of the Constitution may beamended to provide for the NationalJudicial Council. A similar change willhave to be made to Article 217. Also, sincethe Council is to have the authority tooversee and discipline judges, furtherchanges will need to be made to Article217.

7. A Judge of the Supreme Court should bedesignated as the Judicial Values Commissioner.He/She should be assigned the task ofenforcing the code of conduct. Similararrangement should also be made in the HighCourts.

However there are differences within thejudiciary and the civil society over the need andeffectiveness of the proposed NJC. For example,the earlier chief justice of India, K.G. Balakrishnanwhen asked as to whether the CJI should besubjected to the authority of the NJC, he repliedthat the impeachment proceedings already existin the constitution to take care of it. And whetherjudges should be required to file annual statementof assets, he replied that it should not becompulsory. Given the dispensation which we areimagining of making honesty and integrity of thejudges, their most potent weapon in place ofcontempt of powers, as per the views of justiceKatju, this statement of the ex-CJI surely does notmake things better.

The other major sub issue is that of excessivejudicial delays. However this is not an issuewhich could be purely linked to contempt powerof the courts. Though the Courts themselves owea major part of the responsibility; that is takinghardly any serious initiative on an issue which

was believed to be the exclusive domain of thejudiciary, but definitely the other organs of thestate also could not shy away from their part ofthe responsibility and could have made asubstantial contribution to tackle this problem.This issue has particular importance vis-à-vis thepoor because, it is them who are most severelyaffected by the inefficacy of the judiciary ingranting justice. As a result they tend to getattracted to extremist ideologies and tend to takelaw in their own hands. Further, there areopportunity costs elsewhere due to judicialdelays. Pranab Mukherjee says that if the judicialprocess can be expedited it could make adifference of around 1-2% to the GDP of thecountry. Administration could be heldaccountable to the judiciary only when peoplehave faith in the judicial system and they bringtheir grievances to the judiciary.

The following factors could be attributed asthe reasons of excessive judicial delays in India,apart from the ones already discussed:

1. We do not have adequate number ofCourts and judges.

2. There is no adequate funding for creatingsufficient facilities in the legal system.

3. The procedure in Courts is too technical.4. Appointments are not based on merit and

there is favoritism and political influencetoo in the course.

5. Standards in profession are degrading andwe need to concentrate on legal education.

6. There is no co-operation between Centreand the States to address the issue.

7. The Court systems still not computerizedto the extent needed and lesser applicationof e-Governance, etc. in the legal system.

The recent National Conference on “TheNational Consultation for strengthening thejudiciary towards reducing the Pendency andDelays” provided the perfect platform for athought on examining and conducting a postmortem on the issues of pendency and arrears.The “vision statement” contained appreciablechanges in the structure of courts. The most farreaching is the concept of “Contract judges”envisaged to decide backlog cases. About 15,000trial judges and 700 high court judges wouldwork in three shifts deciding the legality ofcontracts, etc. The vision is to eliminate thethought of pendency and arrears and securingspeedy justice. However, whether the contract


judges would be able to function within theprescribed “procedural” limits and deliverjudgments in a better and faster manner isdoubtful. Similarly the very concept of “contractjudges” goes against the jurisprudentialexistence of judges in a society, who isconsidered as an epitome of justice.

Further, the measures like Plea bargainingand Lok Adalats have already been initiated toreduce the pendency load over the judiciary.Latest in this line is Nyaya Panchayat which is abody of dispute resolution at village level. NyayaPanchayats can be endowed with functionsbased on broad principles of natural justice andcan tend to remain procedurally as simple aspossible. They can be given civil and minorcriminal jurisdiction. But they should neverfollow civil and criminal procedure code in toto.The 14th Law Commission report has alreadyrecommended for the revitalization of the NyayaPanchayats in line with the Art. 39-A of theconstitution. However the proposed NyayaPanchayat bill has been blocked by the Lawministry on the grounds that members of NyayaPanchayats, designated as an alternative disputeredressal mechanism at the grassroots level, donot have any legal or judicial background. Sourcesstated that it was felt that delegation of judicialpowers to local elected representatives couldpromote Khap panchayat-like establishments.

The third important issue is that related tothe PILs which are otherwise an instrument toenforce accountability of the executive on issuesof public interest. In Indian law, public interestlitigation means litigation for the protection ofthe public interest. It is not necessary, for theexercise of the court’s jurisdiction, that the personwho is the victim of the violation of his or herright should personally approach the court.Public interest litigation is the power given tothe public by courts through judicial activism.Such cases may occur when the victim does nothave the necessary resources to commencelitigation or his freedom to move court has beensuppressed or encroached upon. The court canitself take cognizance of the matter and proceedsuo moto or cases can commence on the petitionof any public-spirited individual. The majorconcerns related to this very potent instrumentof enforcing accountability of the executive andthe legislature to public interest are twofold. Oneis the sporadic violations of the provisions ofseparation of power which it tends to bring about(already examined) and the other is the ‘misuse’

of PILs by the litigants increasing the volume oflitigation with the judiciary. To put things inperspective the issue is as to whether the PILcases continue to benefit the poor anddisadvantaged, or have lifestyle issues becomepredominant as middle classes have learned todress up their concerns as PIL. Moreover, judgesare not manifestly less disposed to the interestsof the poor and marginalized than they weretwo decades ago during the “heroic” years whenPIL originated.

An analysis of data from 1997-07 shows thatthe frequency of PIL cases has remained relativelyconstant over the past ten years. There wereabout 260 PIL cases instituted per year, onaverage, compared to about sixty thousand casesper year overall – including both admissions andregular matters – based on data publiclyavailable in the Supreme Court’s “Court News”publication. On average, about 0.4 per cent of“cases” before the Court involve PILs.

It is hard to identify PIL cases as such inonline databases, but one can analyze the chargeof middle class bias by examining outcomes ofcases involving Fundamental Rights claims. Thefirst figure below graphs win rates, for claimantswho were and were not members of advantagedclasses, for the subsets of Supreme CourtFundamental Rights cases related to women’sand children’s rights to caste concerns. It showsthat the average annual win rate for claimantsfrom advantaged classes was below that ofclaimants who were not from advantaged classesuntil the late 1980s. Today, claimants fromadvantaged classes have higher win rates thanclaimants not from advantaged classes. Forexample, advantaged class claimants had a 73percent probability of winning a FundamentalRights claim for cases in which an order ordecision was rendered from years 2000-08,whereas the win rate for claimants not fromadvantaged classes for the same years was 47per cent. For the 1990s, rates were 68 per centand 47 per cent, respectively. However, in theyears prior to 1990, claimants not fromadvantaged classes enjoyed higher success ratesthan those from advantaged classes. Thedifferences for the 1990s and 2000s aresignificantly different from each other, based ona simple chi-square test and a simple probitestimation.

Similarly, in the subset of cases involving SC/ST/OBC concerns, claimants who were not from


SC/ST/OBC began to have higher averageannual win rates than those who were startingaround 1990.

These findings here are consistent with theclaim that judicial receptivity in the SupremeCourt to Fundamental Rights claims made onbehalf of poor and excluded individuals hasdeclined in recent years. Though this data needsfurther research but we can upto a large extentdraw our conclusions regarding the prevalenceof the middle class bias.

Thus, though mired by several challenges thejudiciary in India has been successful to aconsiderable extent in extracting accountabilityfrom the executive and upholding publicinterests especially through the PILs, a legendaryexample of this is the Delhi vehicular pollutiondebate, the Delhi Health Minister claimed thatair pollution did not increase the risks of heartor lung disease, the Delhi government said thatthe timely installation of Compressed NaturalGas (CNG) stations would be impossible, theMinistry of Petroleum and Natural Gas arguedthat CNG bus conversion would not besustainable in the long run, producers ofcommercial vehicles stated that the conversionto CNG was not economically cost-effective, andothers argued that CNG is explosive. The court,largely by empowering certain technicalcommittees, played a significant role in helpingto ascertain accurate information on these issuesand made sure that CNG conversion not onlyhappens but becomes a case study of howjudicial activism could help in not only enforcingaccountability of the executive but also makesure that public interests are upheld which is theultimate aim of accountability and control.

CITIZEN AND ADMINISTRATION

Apart from the three organs of the State,which enforce accountability and control on theadministration on behalf of the citizen, there arealso other mechanisms available by which thecitizens could voice their grievances against theadministration directly. These mechanisms arecalled by different names in different countries,for example Ombudsman in the Scandinaviancountries, the Administrative courts in France,the Parliamentary Commissioner in the UK, andthe Procurator system in the Ex-Soviet Union. Asimilar system was envisaged in India by the 1stARC in the name of Lokpal for ministers andsecretaries both at the state and central level and

Lokayukta at the state level, to entertaincomplaints against the rest of the bureaucracy.

Although the traditional means of control areat their place, yet there is a need felt to createanother mechanism for the accountability of theexecutive mainly because of the followingreasons:

1. The huge size of administration which isgrowing day by day has become difficultto check by the existing controlmechanisms. Further, the nature ofadministrative discretion is fast changingin the fast changing environment whichrequires technical expertise to understandand control.

2. The increase in the phenomenon of delegatedlegislation again because of the growing sizeand complexity of the government along withincreased administrative discretion andadministrative adjudication in matters ofimplementation.

Thus in order to ensure that such administrativeacts are carried out in the spirit of the Constitutionand to uphold public interests there was a needfor such institutional devices.

As part of the Indian response to the need,the Santhanam Committee recommended for theformation of CVC in 1964. As part of the process,vigilance cells in several government departmentsand PSUs were formed. CVC receives complaintsdirectly from aggrieved, apart from press reports,allegations made by MPs. On receiving complaintit may ask the concerned ministry/departmentto conduct inquiry or ask the CBI to conductinquiry. However its jurisdiction is limited tocomplaints against gazetted officers and officersof equivalent status and is no parallel to theScandinavian institution of Ombudsman. Thusthe 1st ARC came up with the idea of Lokpal andLokayukta. Though such institutions could not beestablished at the central level but different statesestablished their own Lokayuktas known bydifferent names in different states and coveringdifferent functionaries at different levels, but yetperforming similar functions i.e., to entertaingrievances of the citizens against the administration.

However the prime issue in this section againis as to whether such Ombudsman like systemsare effective enough to justify their existence orthey are merely other ineffective state institutionsand as to what can be done so that theseinstitutions become more effective.


The working of Lokayukta institution showsthat despite statutory provisions the office of theUp-Lokayukta has not been functioning in stateslike U.P., Rajasthan, Assam and Delhi. Thenumber of complaints received and disposed offby the office of the Lokayayukta greatly variesfrom state to state. Part of explanation for thisvariance lies in the jurisdiction of Lokayuktas.Some of the Lokayuktas deal only with cases ofallegations whereas others deal with bothallegations and grievance cases.

In all the states written complaints arerequired from the complainants by theLokayukta office for investigation. If thecomplaint takes the form of an allegation, theoffice insists on the filing of an affidavit.Experience tells that most of the complainantsespecially of rural areas, lost interest once theywere asked to file affidavit.

Data shows that in its initial years offunctioning a large number of complaints had tobe rejected prima facie by the Lokayuktas forwant of jurisdiction and also because many ofthem were anonymous, pseudonymous, andtrivial in nature or not made on prescribed formsor were submitted without affidavits. Theattitude of the Lokayuktas towards suchcomplaints has not been uniform. Some pursuedit under the suo-moto powers given to them underthe Acts while a few others first ignored them.Some of the Lokayuktas adopted another practicefor some of the cases which fell outside theirjurisdiction by sending them to the Heads of theDepartments concerned for necessary action attheir level. Since the complaint was referred by ahigh functionary, it quickly attracted the attentionof officers and in a substantial number of casesthe grievances of the complaints were redressed.It was observed that those departments of thegovernment which are intimately connected withpublic dealings e.g. of Public works, Health,Irrigation, Home, Civil supplies, etc. attracted largenumber of complaints and grievances in the officeof the Lokayukta.

The working of this system also shows thatthe Lokayukta organisation took up numerousand varied types of cases in which relief couldbe granted to the complainants. One suchparticular area is grievance regarding non-payment of pension and other retirement benefitsto government employees. The intervention ofthe Lokayukta brought relief to very humble andlow paid public servants like village schoolteachers, constables, peons, clerks, etc. The

Lokayukta provided relief to the complainantsalso in such grievance cases as changing a non-working electricity transformer, removal ofmaladministration in the working of the schooland allotment of house to a flood victim. Themediatory role of Lokayukta between thecomplainant and the government servant/departments led to the settlement of the problemto the satisfaction of the complainant. In all suchcases the Lokayukta organization was perhapsguided by the Ombudsman practice in differentcountries, whose main job is to redress thegrievances of the people.

Most of Lokayuktas and Up-Lokayuktashave recommended more or less similar types ofpunishment such as reduction in rank,retirement/removal from office, stoppage ofannual increments and censure, etc. TheGovernments in a majority of cases acceptedthese recommendations. In some cases, howeverthe concerned persons took their case to the HighCourts and Tribunals. Instances are not lackingalso when the respective state governments ontheir part modified the recommendations of theLokayukta and made the punishment lessstringent.

Thus, if we try to make an evaluation of theinstitution of the Lokayukta, we would find thatapart from some instances of success theLokayukta organization has too manyshortcomings viz. there is no uniformity in theActs of different states; recommendations of theLokayuktas are not acceptable to the competentauthorities; many areas of administration areoutside the jurisdiction of Lokayukta; every statehas fixed time limit for lodging a complaint; insome states like Maharashtra, the identity of thedefaulters is not disclosed; some states haveprescribed fee for lodging complaints, for exampleM.P. is one of them. This hampers the work ofLokayuktas. Other problems are non-cooperativeattitude of the authorities, lack of independentinvestigating authority, requirement of priorsanction of the government in some cases andindifferent attitude of the state governments.Experience regarding the functioning of theLokayukta institution at the level of states hasnot been similar. Whereas the Lokayuktas instates like M.P. and A.P. have achieved greatersuccess in dealing with cases of corruption butthis cannot be said about other states. In generalthe Lokayukta scheme has been regarded moreas a failure in dealing with corruption cases.


Nevertheless, to improve its functioningfurther and to minimize its frailties, it is requiredto tone up the state administration itself bymaking it more responsive, accountable,transparent, efficient and effective. To increasethe efficiency and effectiveness of the institutionit is necessary to adopt the uniform “ModelLokayukta Bill” as formulated by theImplementation Committee constituted by theAll India Lokayukta Conference. Besides, thisthere should be time bound programme forredressal of grievances; members of thesubordinate judiciary should also be within thepurview of the Lokayukta Act; publicity aboutthe office of the Lokayuktas should be enhancedand training institutions should be impartedwith the knowledge of the working of theLokayuktas. There should be some kind of timelimit within which the enquiry must becompleted and strict time limit within which therecommendations must be implemented.Lokayukta must necessarily have the power topunish a person for committing contempt. Alegislative committee on Lokayukta for makingthe institution more relevant and effective isrequired. The question of operational autonomyis being raised. The need of coordination amongstagencies/institutions functioning in the area ofredressal of public grievances is stronglyrecommended.

The Second ARC also recommended for theamendment of the Constitution to provide for aRashtriya Lokayukta. It also recommended thatit be made obligatory for all states to set upUplokayuktas and that their structure, powerand functions be governed by commonprinciples. Moreover, efforts should be made tobring the Lokayukta closer to the people, forexample a practice which has gradually becomea regular feature of the Lokayukta organizationin various states is the holding of grievanceredressal camps at Division and Districtheadquarters. The idea behind such campsappears to take the Lokayukta to the people ifthey cannot come to him, such initiatives shouldbe appreciated and encouraged more and more.Only then we could believe to have taken asignificant step in ensuring real accountabilityof the administration to the people.

ROLE OF MEDIA

The media has a very vital role to play in ademocracy. Especially in a democracy because

democracy survives on public opinion and it isthe creation of public opinion which is theprerogative of the media. Particularly in asituation where people are not organized, it isthe job of the media to comprehend and reflectpublic opinion. Further, the media is alsoinstrumental in grievance redressal of the peoplebeyond the institutions of the State, where theinstitutions of the State have erred, again bybuilding public opinion. Moreover media alsoserves as the link between the people and theState, by airing the views of the civil society forthe State to understand, by educating peopleregarding the agenda of the State and finally byextracting accountability from the State for thepeople as in a democracy ultimate sovereigntylies with the people. Thus media is rightly calledthe fourth estate of the society and has a majorrole to play in the good governance movementspearheaded by public participation in thecontemporary era.

However the important issue in this sectionagain is as to whether the contemporary mediahas been reasonably successful in performing itsduties particularly that of extractingaccountability from the State for the public. Thisissue pans out into the debate between mediasympathizers and media critics.

Critics argue that media in current times isdriven by vested interests and the rich andinfluential use the platform to extract mileagefor themselves and further their own political orcommercial interests. This point could be bestdescribed by the happenings which occurredbetween Reliance Industries and Nusli Wadia atthe time of emergency and the role which TheIndian Express played in ‘exposing’ the ‘unfairtrade practices’ of Reliance Industries. Not onlythe Goenkas but most of the media houses ofIndia are driven by some or the other political orbusiness groups and their affiliations come at thecosts of media freedom and neutrality.

Further media is also accused of runningbehind yellow journalism to earn more and moremoney and in the process compromising on theprofessional ethics of media. Be it newspapers,magazines or electronic media all of them couldbe found to be filled with events from cricket,astrology, cinema and about personal lives of thecelebrities depicted in a scandal mongeringmanner. Further even if it contains any newsthey are covered in the most sensational manner,trying to create anxiety, fear and frenzied


reactions in the public. At the same time realissues which are of vital importance are eithernot covered or covered just for the sake of it, forexample, the issue of farmers’ suicides has beenaround since 1997 but other than some selectedmedia houses, most of the visible media has eithernot covered it or has accorded only scantattention to it. Moreover, media has been alsoblamed of improper treatment i.e., not portrayingthe issues in the most holistic sense andfrequently falling short of explaining the detailsin a reasonably critical manner. As a result thefunctionalities of bringing an issue in the publicdomain are not addressed properly. For example,the issue of media trials in which it seems as ifmedia knows all the facts even before theevidence is tested under the light of law andwhatever it pronounces is the final judgment.For example, in case of Abhinav Bharat activitiesthe media accused the RSS for its involvementbefore the law could take its own course.Otherwise, in terms of holistic analysis the issueof the effects of futures market on the farmers,consumers and the entire production-consumption chain of agriculture is yet to beexplored despite the presence of this issue in thepublic domain for a reasonable amount of time.This is an issue which has bothered particularlythe intelligentsia and the politicians of course indifferent senses, while the intelligentsiacomplains of insufficient criticality, thepoliticians complain of frequently beingmisinterpreted and being quoted out of context.This could be either attributed to the deficienciesof skills in the journalists or the factors of implicitbiases or yellow journalism as already mentionedabove.

Nevertheless sympathizers of media not onlyexplain the reasons of the shortfall of media onvarious accounts, but also find areas toappreciate the work of the media. For exampleon the issue of insufficient criticality thesympathizers raise another issue of insufficientmedia freedom especially in the context of lawof contempt of courts, corporate ownerships,excessive commercialization and demands of themarket and above all influence peddling fromthe rich and powerful lobbies in the society, allthis in a composite manner make the neutral andprofessional operation of the media almostimpossible. On the issue of media trials they feelthat media has been instrumental in bringingjustice to those people who have been wrongedby the institutions of the State. The role of media

in getting justice for the families of Jessica Laland Priyadarshini Mattoo has been commendedeven by the courts. Further it was the mediawhich brought the farmers suicide into limelightand made it a national issue, only after whichthe governments and other non - stateinstitutions swung into action. Moreover, themedia does not target honest legislatures andjudges for baseless criticism, it only brings theallegations into the public domain andgalvanizes the institutional machinery to takeaction.

Thus, it is difficult to label the media eitherway, it is neither totally irresponsible andunethical nor it is totally neutral andprofessional, it is actually a mixed bag of boththese attributes, what we need to do is to carveout a space for the media in which its ‘deviant’characteristics are evened out and its nobleattributes are amplified and this could beachieved only if media is subjected to some sortof regulation. The present body of the PressCouncil of India (PCI) only enforces a moral codeof conduct, it has no coercive powers. Thus, thereis a need for a fresh regulatory body which shallstrive to provide that space to the media.Although it will be confronted with a bigchallenge of balancing freedom of speech of themedia with the goal of disciplining its contentbut we need to take a start by letting such anenforceable code of conduct to evolve in thepublic domain after extensive deliberations andconsultations of which the media itself may be aparty. Only then the media can become the truereflection of the public opinion and becomeinstrumental in holding the State accountable forits actions before the people.

ROLE OF INTEREST GROUPS ANDVOLUNTARY ORGANIZATIONS

The media also serves as a mouth piece ofinterest groups who also have their role vis-à-vis public opinion. The interest groups performthe four fold function of interest identificationfollowed by interest consolidation proceeded byinterest articulation i.e., exerting pressure fortheir demands and finally the culminating actof interest maximization which matures into thehard bargaining which is done to extract theirinterests out of the establishment. For instancethe graduated sugar policy in India is an excellentillustration of how the interest group politicswork. The sugar policy incorporates into itself


two prices one the price of sugar for the PDSand two the price of sugar in the open market.The procurement of sugarcane from the farmersis done at one price keeping the interests of thefarmers into account, further this cane is sold tothe sugar mills at a different price keeping theinterests of the mill owners into consideration,lastly the procurement of processed sugar is doneby the government from the mill owners atanother price and sold to the customers of thePDS at a third price which again incorporatessubsidy keeping the interests of the PDScustomers into account. Thus the governmenthas to pamper the interests of the three interestgroups viz. producers, mill owners and the PDScustomers involved in the production-processing-consumption chain at the expense of itsexchequer.

The pluralists argue that, interest groupsrepresent the diverse interests present in thesociety and provide expert information andperspectives that help in policy making andmaintaining the vibrancy of the democracy.Further, the interest groups crystallize intopolitical parties and help in extractingaccountability from the executive. However,critics of pluralism argue that the interest groupsover represent the wealthy in the society andprovide self serving and biased information thatwarp policy making. Further, they restrain thepowers of the state rather than extractingaccountability from it and ensuring that thebenefits of prosperity are evenly distributed bythe State among its citizens. Moreover interestgroups tend to become autonomous and over theperiod of time tend to implement their ownpolitical agenda. For example some of thereligious organizations of the minorities takethemselves to be the custodians of the religionand even question the authority of the state byposing questions such as to why should the stateinterfere in the personal laws of a religion.

Thus interest groups though an essentialcomponent of the democratic system must beallowed to operate in a regulated environmentthemselves and should take up some form ofaccountability which is a necessary constituentfor operating in the public domain.

The nurseries of interest groups are in factthe voluntary organizations, which crystallizeor mature into interest groups over the period oftime, therefore they need a special reference here.Voluntary organizations are non state

institutions which operate in the society forachieving diverse goals viz. socio-economicprotection of civil rights, environmentalprotection, promoting certain economicactivities, overall sustainable development etc.

They are a common feature in a democracyas democratic setup guarantees freedom ofassociation to its citizens. They operate eitherindependently or in partnership with the Stateor other non State actors. There are reasons forthe efficiency of voluntary organizations over thebureaucracy viz. they operate in a relatively freeenvironment not mired by excessive rules andregulations. The people running the organizationmay not be public servants and they operate onnongovernmental funds. Further, they are closeto the issues and problems of the people as theydo not carry a top down governmental agendato follow, this puts them in a better position toboth suggest solutions as well as carry out thesolutions. The Private Voluntary Organization(PVO) movement has been quite a phenomenonin our country and is responsible for usheringthe reforms movements in all the institutions ofthe society be it political, economic, cultural orreligious.

However there is also a flipside to thisphenomenon and the foremost aspect is thatthe voluntary organizations may not always lookinto public interest, and because of this reasonthe issue of their accountability to thegovernment arises. Many of the voluntaryorganizations have been found to accumulatehuge disproportionate assets in the name ofcommunity service. In the same reference themonitoring of the flow of foreign funds hasassumed importance, many voluntaryorganizations are used as conduits to bring blackmoney back to the country i.e., moneylaundering. Sometimes several voluntaryorganizations like SIMI have also been found toreceive money from the extremist and anti-Indiaorganizations overseas. Moreover, manyvoluntary organizations in our country are sorich and influential that it becomes veryimportant for the State to keep monitoring theorientation of their activities for their conformityto the public interest, for example the Tirupati –Tirumala Devasthanam Mandir Trust. Further,there are other weaknesses also viz. thoseorganizations which depend on membershipfunding tend to become unviable over a periodof time, the volunteers lose interest due tononprofit orientation and consequently the


working of the organization suffers. Thisphenomenon is clearly visible in the working ofthe voluntary organizations operating in thehealth sector in our country.

Thus in order to ensure that the voluntaryorganizations perform their role in the best oftheir spirits and in consonance with publicinterest, there has to be a mechanism ofregulating them. For example there have beensuggestions regarding the auditing of the foreignfunds received by the voluntary organizationsby a CA recognized by the government; howeverthese are localized solutions which only addressa small part of the bigger issue of regulation ofthe voluntary organizations. What is needed isto create such a regulatory body that shallprovide a holistic operating environment to thevoluntary sector but at the same time alsorestrain itself from questioning the very natureof voluntarism as excessive governmentalinterference has the potential to dilute the veryvoluntary character of the organizations. Onlythen we can expect the voluntary organizationsand interest groups to function alongside thegovernment for protecting, upholding andproliferating public interest and alongside thepeople in extracting accountability from thegovernment and administration.

ROLE OF CIVIL SOCIETY INENFORCING ACCOUNTABILITY ANDCONTROL OVER ADMINISTRATION

Civil society is a term which covers the totalityof voluntary civic and social organizations,media, interest groups and institutions that formthe basis of a functioning society as distinct fromthe force-backed structures of a State (regardlessof that state’s political system) and commercialinstitutions of the Market.

The presence of a healthy and vibrant civilsociety is the hallmark of a healthy democracy.It is the nursery in which new ideas take theirroots and grow, which are the basis of a dynamicdemocratic society. It is also the forum wherewe brainstorm and find solutions to complexquestions. Civil society institutions also act asalternatives to the State in delivering welfare anddevelopmental services to the community. Butmost importantly they serve as institutions whichenforce accountability and control to theactivities of the State by means of developing apublic opinion which decides as to what

direction the society and the institutions of thesociety should be moving.

Even the State and the Market are institutionschurned out of the civil society, however in thepresent context civil society is understood asextra-State and extra-Market institutions.

The role of civil society has been extensivelydiscussed and have hogged the limelight incontemporary times because of the across thespectrum acceptability and appreciation of theparticipatory approach as a valuable instrumentin delivering sustainable results in almost all theactivities of the State and also the Market.Moreover some experts also believe that the roleof civil society in the present context is biggerthan that of a partner to the State and the Marketrather it has been increasingly seen as analternative to them out of the disillusionmentfrom the institutions of the State and the Market.Barry Knight, Hope Chigudu, and RajeshTandon in their book ‘Reviving democracy’:Citizens at the heart of Governance write thatthe progenitor of the concept of civil society isthe global collapse of confidence in politics,evidenced by falling turnouts in elections,increasing and towering inequalities between therich and poor and the alienation of billions ofordinary people visible in their apatheticwithdrawal or in violence and disorder. Thefindings from the first world to the third worldcountries amply confirm that, people aredemanding better and decent lives for themselvesand others and despite their criticism of failing,incompetent and corrupt governments, theywant their governments to meet basic needs andto administer the processes of the State fairly andlawfully, it is here that the civil society emergesas an alternative.

However the most important issue in thissection is as to whether civil society institutionsare free from the dysfunctionalities plaguing theState and the Markets. Are they free from themalaise of corruption and inequality? Could theybe presumed as absolutely fair and neutralinstitutions?

International NGOs are criticized forpreaching democracy and failing to practice thesame internally, and for simply not listening tothe people very people whom they purport tohelp. Privately locally recruited staff oftencomplain about the latter’s attitude of racial andcultural superiority. Further civil society groupshave also been seen to be mired by double


standards. For example, no mention has beenmade in the media about that the Danishnewspaper ‘Jyllands–Posten’ which hadprovoked so much controversy with cartoons ofthe Prophet Mohammad some years ago hadearlier decided not to publish a cartoonlampooning the Christ. Moreover, there havebeen numerous allegations of corruption andmoney laundering associated with the NGOs,involved in developmental and welfare activities,all over the world. Thus we can conclude andsay that civil society groups are yet another stockof the inefficient institutions similar to the Statewhich are nothing but a reflection of theinefficiencies and negativities prevalent in thenursery of the society itself.

This viewpoint is not acceptable to the civilsociety groups. They attribute the allegations ofinefficiencies and corruption to the environmentin which they operate and the role of the otheractors with whom they interact. They believethat the area of influence of the civil societygroups is limited due to their limited access tomoney and power. For example civil societygroups are often constrained by the paucity ofthe funds due to their limited indulgence incommercial activities, further their activities arecurtailed by the oppressive authority of the state,which under the guise of regulation andupholding of public interests not only interfereswith the normal functioning of the civil societybut also actually obstructs it. For example, expertobservers acknowledge that the campaignersagainst arms trade have far less influence thanthe arms corporations, who have almostunlimited access to the governments. Moreover,everybody knows how the efforts of theenvironmental groups like Green Peace onwhaling or global warming have been time andagain trumped by the powerful vested interestswithin the governments and also beyond them.In case of India, civil society groups accuse therich and powerful lobbies of hijacking the draftof the Recognition of the Forests Rights Bill toshift the benefits from the Scheduled Tribes andother traditional dwellers to the elites whohappen to control the administering apparatusand industrial setup.

Thus, it needs to be acknowledged that civilsociety groups like any other structure comingout of the society inherits its strengths andlimitations from the society which are manifestedin different hues and colors under differentcontexts. What needs to be done is not wage an

academic debate over whether civil societygroups are efficient and useful but to accept theaccompanying positives and negatives asrealities which come with the package, and workto create an atmosphere in which they can assertthemselves freely and honestly without anypressures and constraints, and contribute in theirown way in fighting the challenges which theprocess of change has to offer.

CITIZEN CHARTERS

Citizen Charters are standards of service,laid down by the government for public andprivate sector bodies to which organizationshave to confirm, while delivering service to thecitizens. The basic objective of the Citizens’Charter is to vest into the hands of the citizenan instrument by which he could extractaccountability from the State for the nature andquality of public service he receives from theState. The Citizen Charter movement is in itselfa result of the accountability which the citizensenforce over the State vis-á-vis the public servicesoffered by the State. Therefore, both the reasonas well as the consequence of the CitizensCharter movement is accountability and is thusinseparable from it.

The important aspects to be discussed in thissection are as to what are the founding pillars ofthe Citizens’ Charter movement and whether thecitizens’ charter movement is working as per theexpectations, if not what are the areas in whichimprovements should be incorporated so as toensure that it continues to remain an effectiveinstrument to hold the executive accountable forits actions .

The Citizens’ Charter movement as originallyframed, is based on six principle attributes:

(i) Quality: Improving the quality ofservices;

(ii) Choice: Wherever possible;(iii) Standards: Specifying what to expect

and how to act if standards are not met;(iv) Value: For the taxpayers’ money;(v) Accountability: Vis-á-Vis individuals

and organisations; and(vi) Transparency: Vis-á-Vis rules, procedures,

schemes and grievances.

The Citizen Charter movement waspioneered in UK in 1991 when they were firstformulated under the Conservative regime of thePrime Minister John Major, with the above


mentioned goals as its guiding force. Thesecharters were to include first, standards ofservices as well as time limits that the publiccould reasonably expect for service delivery,avenues of grievance redress, and a provisionfor independent scrutiny through theinvolvement of citizens and consumer groups.A committee headed by John Major and certainother distinguished personalities from across thesociety, was responsible for operationalizations.The PMO was to monitor the progress andsubmit a report to the parliament. The PMO’sreport contained comparative estimates andcheckmark awards for personnel. If thestandards were not met, punishment in form ofmonetary compensation (5 to 75) pounds wasimposed. On the same lines similar initiativeswere conceived in other countries as well forexample: ‘The Citizen Now Not Later’ campaignby Philippines Civil Service or the MalaysianAdministration Modernization and ManagementPlanning Unit (MAMPU) in Malaysia under whichthe client charters were made and penalties wereimposed on failures. By and large all these initiativesapproximated the UK model with some or theother modifications. A comparison however of themajor Citizens’ Charter initiatives show that theservice quality approach is embedded in them indifferent degrees. Once a decision is taken to makepublic services citizen-centric, the customer focusof the Total Quality Management (TQM) varietycannot be far behind. In fact, the Citizens’ Charterapproach has several things in common withTQM. Both begin by focusing on meetingcustomer/citizen requirements. Other keycommon elements are conformance to standards,stakeholder involvement and continuousimprovement.

In case of India, in the Conference of ChiefMinisters of various States and Union Territoriesheld on 24 May, 1997 in New Delhi, presidedover by the Prime Minister of India, an “ActionPlan for Effective and Responsive Government”at the Centre and State levels was adopted. Oneof the major decisions at that Conference wasthat the Central and State Governments wouldformulate Citizens’ Charters, starting with thosesectors that have a large public interface (e.g.Railways, Telecom, Posts, Public DistributionSystems). These Charters were required toinclude standards of service and time limits thatthe public can reasonably expect, avenues ofgrievance redress and a provision forindependent scrutiny with the involvement ofcitizen and consumer groups.

Department of Administrative Reforms andPublic Grievances in Government of India (DARPG)initiated the task of coordinating, formulating andoperationalizing Citizens’ Charters. Guidelines forformulating the Charters as well as a list of do’s anddon’ts were communicated to various governmentdepartments/organizations to enable them to bringout focused and effective charters. For theformulation of the Charters, the governmentagencies at the Centre and State levels were advisedto constitute a task force with representation fromusers, senior management and the cutting edge staff.A Handbook on Citizen’s Charter has beendeveloped by the Department and sent to all theState Governments/UT Administrations.

However the importance of ascertainingwhether the citizen’s charters were working as perthe vision of their conception was realized and asa result an evaluation exercise had to be carriedout which would identify the shortcomings andtheir reasons, following which steps could be takento overcome them.

In the same reference in the year 2002-03,DARPG engaged a professional agency to developa standardised model for internal and externalevaluation of Citizens’ Charters in a more effective,quantifiable and objective manner. This agencyalso carried out evaluation of implementation ofCharters in 5 Central Government Organizationsand 15 Departments / Organizations of States ofAndhra Pradesh, Maharashtra and Uttar Pradesh.This Agency was also required to suggest methodsfor increasing awareness, both within theorganization and among the users, and to suggestpossible methods for orientation of managementand the staff in the task of formulating anddeploying Charters.

As per the report of evaluation carried outby the Agency, major findings were:-

(i) In majority of cases Charters were notformulated through a consultativeprocess;

(ii) By and large service providers are notfamiliar with the philosophy, goals andmain features of the Charter;

(iii) Adequate publicity to the Charters hadnot been given in any of the Departmentsevaluated. In most Departments, theCharters are only in the initial or middlestage of implementation; and

(iv) No funds have been specificallyearmarked for awareness generation ofCitizens’ Charter or for orientation of


staff on various components of theCharter.

Key recommendations, inter alia, include:-(i) need for citizens and staff to be consulted atevery stage of formulation of the Charter, (ii)orientation of staff about the salient features andgoals/objectives of the Charter; vision andmission statement of the department; and skillssuch as team building, problem solving,handling of grievances and communicationskills, (iii) need for creation of database onconsumer grievances and redress, (iv) need forwider publicity of the Charter through printmedia, posters, banners, leaflets, handbills,brochures, local newspapers, etc. and alsothrough electronic media, (v) earmarking ofspecific budgets for awareness generation andorientation of staff, and (vi) replication of bestpractices in this field.

Following the recommendations of the agencyand with the objective of generating awarenessamong the citizens as well as governmentfunctionaries of the commitments of variousorganizations enshrined in their Citizens’ Charter,the Department of Administrative Reforms andPublic Grievances brought out a Compendium ofabridged versions of all Citizens’ Charters inGovernment of India in a book as well as in CDform on 14 May, 2003. The Compendiumcontains the operative standards and quality ofservices proposed to be provided as also the publicgrievance redress mechanism as committed in theCitizens’ Charters. The Compendium alsocontains the names, addresses, telephonenumbers, and e-mail addresses of nodal officersfor Citizens’ Charters in Central GovernmentMinistries/Departments/Organizations and alsothe list of website addresses of concernedMinistry/Department/Organization.

The Compendium shall not only be useful tothe citizens for ready reference, but will also enablethem to critically review the functioning of theseorganizations. This would also help theorganizations to compare the standards set bythem, vis-à-vis, those set by other organizations.Further, four Regional Seminars on Citizens’Charters were organized during the year 2001-02,with a view to bring national and state levelorganisations along with other stakeholdersincluding NGOs, intelligentsia, media, etc. on thesame platform and to share experiences informulation and implementation of Citizens’Charter. These seminars were organized atAdministrative Staff College of India, Hyderabad,

Lal Bahadur Shastri National Academy ofAdministration, Mussoorie, R.C.V.P. NoronhaAcademy of Administration, Bhopal and AssamAdministrative Staff College, Guwahati. In all, 24State Governments/UT Administrations and 15Central Government Departments/Organizationsparticipated.

On the basis of the feedback received andexperience gained in these seminars, it was decidedto organize separate Capacity Building Workshopswith specific focus on (i) formulation of Charter(ii) effective implementation of Charter and (iii)enhancing the capacity of trainers available at StateAdministrative Training Institutes/Central CivilServices Staff Colleges. Further, Information andFacilitation Counter (IFC) were set up by selectedCentral Government organizations to provideinformation to citizens about their programs/schemes, rules and procedures, etc. as well as statusof cases/applications. An IFC also acts as a nodalpoint for redress of public grievances.

In India, the DARPG identified a professionalagency to develop an appropriate Charter Markscheme. This scheme will encourage and rewardimprovement in public service delivery withreference to the commitments and standardsnotified in the Charter. The ‘Charter Mark’ isproposed to be awarded after assessment by anindependent panel of judges. This would not onlygive a sense of achievement to the organizationawarded the Charter Mark but also promote aspirit of competitiveness amongst variousorganizations that have issued Citizens’ Charterand generating awareness among citizens. Aprototype has been developed by the professionalagency and is in the process of validation inidentified Departments/Organizations.

Further, the second ARC has also given itsrecommendations in the same lines prescribingfor the blanket application of the CitizensCharter scheme however tailor cut to the needsof the independent unit in consultations with thecivil society and subject to independent periodicevaluations so that accountability of the civilservants is ensured through the process ofcitizen’s participation. The implementation ofCitizens’ Charter however is an on-going exercisebecause it has to reflect the extensive andcontinual changes taking place in the domain ofpublic services. Especially, after the passage of theRight to Information Act, 2005 (already discussedin development administration) the instrument ofCitizen’s Charter has assumed a renewed vigouras the two of them in combination can go a long


way in enforcing the accountability of not onlythe executive but the entire state apparatus vis-á-vis public interests.

SOCIAL AUDIT

Social Audit or Public Audit is a process inwhich, details of the resource, both financial andnon-financial, used by public agencies fordevelopment initiatives are shared with thepeople, often through a public platform. SocialAudit allows people to enforce accountabilityand transparency, providing the ultimate usersan opportunity to scrutinize developmentinitiatives.

The principal issue in this section however isas to what are the essential prerequisites of theprocess of social audit and whether theinstrument of social audit is serving itsfunctionalities, as expected, on the ground andwhat could be done to make this instrument ofenforcing accountability on public functionariessharper.

Let us examine the above issues with the helpof a case study mentioned by the visionfoundation in its report on Social Audit to thePlanning Commission. This was an initiative byMazdoor Kisaan Shakti Sangathan (MKSS),Rajasthan and was called as HAMARA PAISAHAMARA HISAB. This and several other similarinitiatives also served as building blocks whichultimately matured into the enactment of the RTIAct, 2005. The MKSS, born in 1990, is a biggrassroots organization that grew out of a localstruggle for minimum wages and its ideology isthat change for the local people will only comethrough a political process.

People in Rajasthan have always haddifficulty getting paid the minimum wage.Politicians would always promise to secure theminimum wage in return for votes. However,these promises never translated into lastingchange and, over time campaigners realized thatthey had to obtain the relevant documentation,in particular the muster rolls. The right toinformation and the right to survive thus becameunited in peoples’ minds. The campaign initially,demanded to see the muster rolls, but was metwith refusal on the grounds that these were‘secret documents’. These refusals led to a longagitation for the right to access information. By1994, the MKSS hit upon a new, empoweringstrategy, based on the idea of a Jan Sunwai or‘public hearing’. The MKSS brought people

together and simply read out official documentsthat they had procured, either throughsurreptitious means or from officials who hadno idea of their import. The documents relatedto construction records for school buildings,panchayat bhawans, patwari bhawans, dams,bridges and other local structures.

A serious effort was made to ensure that thedebate was transparent and accessible to theoutside world. The government boycotted thefirst four hearings. To ensure openness andpublicity, anyone could attend and anindependent outsider chaired each hearing.Local officials and public representatives wereinvited, including those likely to be criticized.Despite the expense, the proceedings werevideotaped. This deterred speakers frommisrepresenting information and put them onoath as they knew what they said could bereferred to later. When the records were readout it was sometimes immediately obvious thatthey contained false information. Examples wereitems like bills for the transport of materials over6 km when the real distance was only 1 km, orpeople listed on the muster rolls who lived inother cities or were dead. The documentationalso proved that corrupt officials and others weresiphoning money and that minimum wages werebeing paid only on paper. The exploitation ofthe poor in two ways — by denial of theirminimum wages and through corruption bysome of the village middle class — was revealedat the Jan Sunwais in front of the entire village.

People who would have been intimidated ontheir own now had a platform where they couldspeak out. This process also brought together thepoor and sections of the middle class who hadnot previously supported them but now spokeout against corruption, which they realized hurtthem too. The MKSS in Rajasthan demanded andgot information on minimum wages andgovernment infrastructure programs, sparkingoff, in the process, a national movement forfreedom of information. After a long battle, thegovernment announced a change in thePanchayat Act, so that the people could inspectlocal documents pertaining to developmentalworks.

The above case study brings to fore thefollowing major points:

1. The basic input to the process is informationavailability – willingness of the GovernmentOfficials to provide information and ability


of people to ask questions. Thus Social auditcan only be imagined in conjugation withthe right to information vested in the people.We cannot imagine social audit without theright to information, further the effectivenessof the right to information is diluted if wedo not pair up the information with socialaudit. The quality of social audit is in directsemblance with the quality of informationor in other words the effectiveness of theSocial Audit largely depends upon how wellthe people are satisfied with what they getunder their right to information. Thus socialaudit is a recent phenomenon in India,which has started taking roots only afterthe RTI-2005 was passed. Moreover, theevolution of social audit has a specialsignificance in view of the responsibilityreposed by the 73rd and 74th amendmentacts on the local governments under whichone of the important functions of the localgovernments is the monitoring andevaluation of the developmental and otheractivities conducted in their areasparticularly with government funds.

2. This examination brings to fore anotherprerequisite which is as crucial asinformation, and that is the capacities ofthe people to acquire information, toprocess the information into usable form,to scrutinize the information, to crystallizethe issues and to question the responsiblestaff on matters of concern. This is ofultimate importance because informationin itself is of no use until the people are ina position to utilize it effectively. This pointis relevant both in the sense of technicalskills of the people to understand andprocess the information and the socio-political skills of the people to overcomethe resistances if any posed by the secretivetendencies of the state or by some otherpeople or groups guided by their vestedinterests.

3. Most importantly the fact that capacitybuilding whether it is technical, organizationalor socio-political is an exercise which hardlyneeds any dedicated training program, ratherit is something which grows on its own overthe period of time provided the people startparticipating in finding solutions to theirproblems themselves and they are guided bysome able and dedicated leadership at leastin the initial stages.

Thus we zero down on the twin issues ofinformation and the capacities of the people, asthe most crucial aspects relevant for the successof the whole exercise of social audit. Further,objective analyses of various case studies alsoreveal that the success of the social audit in anyenvironment revolves around the quality,availability, affordability, accessibility andusability of information and capacities vis-à-vispeople.

Presently, the process of Social Audit hasbecome a regular feature of most of thegovernment programs both in the rural and theurban areas. The process of social audit startswith the seeking of the program related relevantinformation by the people from the concernedgovernment departments under the RTI act. Thisinformation is then processed and converted tousable form after which it is subjected to scrutinyby the people. The results of the scrutiny areshared in a common platform with theauthorities and the people. Elaborate discussionstake place on the issues which crop up duringthe course of scrutiny wherein the responsiblegovernment functionaries are subjected toquestioning to explain their stand on the issues.If the explanations are found to be genuinecorrective remedies are evolved and suggestedto be executed, however if the explanations arenot found to be satisfactory penal actions areimposed there and then.

Presently, this initiative is in its infancy andis carried out at the lowest levels under theleadership of some NGO. Moreover, there havebeen two major concerns starving the process ofits best results. One of them is of course thelimited penetration of NGOs willing to interferein initiating the process of Social Audit both atthe territorial level as well as the coverage ofprograms level. Still numerous hinterlands arewaiting for some leadership to evolve and showthem the potentialities of this instrument whichhave been made available to them by the RTIact-2005. Although, the Gram Panchayats hasbeen assigned this job to conduct social audit ofvarious government programs from time to time,but the Gram Panchayat functionaries are yetto appreciate the wide potentials of Social Audit.Further apart from some important programs likeMNREGA there have been very few instancesinvolving the use of social audit.

Secondly there have several reports of thecollusion between the NGO people or the Gram


Panchayat functionaries, responsible for thesocial audit exercise, with the local politiciansor the local bureaucracy or the local contractors.The people responsible for social audit, incollusion with the local politicians, have startedusing it as an instrument to extract money fromthe local bureaucracy or the local contractor bythreatening them with complaints of nonfulfillment of the ‘watertight’ norms of thedevelopmental works. This phenomenon is bothconcerning and saddening as if the localleadership itself which has been entrusted thejob of extracting accountability for the peoplethrough these instruments, start indulging insuch malpractices there is hardly any way outfor the ordinary poor man in the village or onthe street.

Thus, we feel that the corrective strategy hasto be a twofold exercise. One there is a need togalvanize the Panchayati Raj functionaries alongwith the NGOs to come forward and bring honestand effective leadership at the grassroot levels,so as to ensure accountability of the governmentfunctionaries. Further, on the part of theadministration, the government should startdeliberations to bring about a legislation whichwould introduce some sort of regulation on thePanchayati Raj functionaries as well as on theNGOs operating especially in the rural areaswhich normally stay away from media scrutiny.For example, permitting the CAG to audit theaccounts of the PRIs and putting them on theinternet could be the first step in this direction.

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8. Accountability and Control - WordPress.com · Accountability is one of the three important pillars of a trust society, the other two being participation and transparency. Each