A PROJECT REPORT ONDOCTORINE OF ACCOUNTABILITY

Submitted to: Submitted by: Asst. Professor Priya Umbarkar Aman Das Faculty of Law B.A. LL.B Sem 4th

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

DECLARATION

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

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

TABLE OF CONTENT

ACKNOWLEDGEMENT2DECLARATION3ADMINISTRATIVE LAW5NATURE AND SCOPE OF ADMINISTRATIVE LAW6INDIAN ADMINISTRATIVE LAW6DOCTORINE OF ACCOUNTABILITY7EVOLUTION OF DOCTRINE8SCOPE OF PUBLIC ACCOUNTABILITY8CORRUPTION- AN IMPEDIMENT IN TRANSPARENCY9RIGHT TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITY10JUDICIAL REVIEW16JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE17Limitation on the power of review:18Conclusion19

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

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

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

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

INDIAN ADMINISTRATIVE LAW

In India, The Constitution is supreme with discretionary powers at the other side in England the parliament is supreme. Law enacted by the parliament is authoritative and fully admired.Noperson canchallengethevalidity of suchlawbut only Ultra Vires statute can challenge under which it was taken[footnoteRef:2].Besides, Law enacted by the British parliament is the highest form of law and prevails over every other form of Law[footnoteRef:3].In our India on the other hand by the written Constitution power of Judicial Review is on Supreme Court and High court the same can be challenged as Ultra Vires[footnoteRef:4].Testimonies of the validity of such challenges are also defined as, [2: 1C.K. Thakwani, Lecture on Administrative Law. Introduction page. 14 ] [3: Cheney v Conn(1986)1 AL LER 779 (1968) 1 WLR 242] [4: C.K. Thakwani, Lecture on Administrative Law, Introduction page. 14 ]

1. The action must be taken in accordance with rules and regulations,2. Rules regulation and parent actsare also to be consonance to the Constitution,3. Rules must be in accordance with relevant with statutes,4. If challenge converted and accepted in Amendment, such amendment should be conformity with Basic structure.

DOCTORINE OF ACCOUNTABILITY

Accountability refers to the process of holding persons or organisations responsible for performance as objectively as possible. India, as a parliamentary democracy, has elected legislatures that have oversight functions over the Executive and an independent judiciary that can hold both the legislative and executive arms of the state accountable. It has a variety of independent authorities and commissions that perform accountability functions vis--vis different parts of the government. The electoral process, the ultimate accountability mechanism in a democratic country, has performed well for over 50 years.In a federal system like that of India, public accountability is a two way process involving upward accountability and downward accountability. Upward accountability comes through the governmental control over administrative authorities like power to dissolve them, approval of budget, auditing of budgets etc. Downward accountability is to public which is relatively weak and it comes primarily through their mandate in elections.All is not well with public accountability in India. Formal accountability systems are put in place for the most part, but they are not necessarily made to work. Many good laws have been enacted, but they are not always enforced or monitored. Public agencies are given mandates and funds, but their performance may not be properly assessed and suitable action taken to hold them accountable. Public audits of accounts and parliamentary reviews are done, but follow up actions may leave much to be desired. It is clear that the existence of formal mechanisms of accountability does not guarantee actual accountability on the ground.This paper analyses how this doctrine has evolved in light of judicial decisions in India. After analysing various Apex Court decisions in this regard, the paper then focuses on Corruption being the evil which is an impediment for good governance and public accountability. Also the paper looks into the Right To Information act which has helped in making public officials accountable for their acts and lastly two recent cases, Medical Council of India and Commonwealth Games, have been discussed which show that much needs to be done in India so that the public officials can be disciplined and India can become a corruption free and transparent nation.[footnoteRef:5] [5: http://www.lawteacher.net/]

EVOLUTION OF DOCTRINEThe most important case which elaborated the scope of doctrine of public accountability is A.G. Hong Kong v. Reid. In this case, Reid who was a Crown prosecutor took bribes to suppress certain criminal cases and purchased properties with the bribe money. The Hong Kong Government claimed these properties stating that the owners thereof are constructive trustees of the Crown. The Court upheld the claim and observed that a gift taken by a public officer as an incentive for breach constituted a bribe. The fiduciary owes the money to the person to whom he owed that duty and he hold the bribe acquired therewith on constructive trust for that person. This case also applies to situations where fiduciary relationship does not exist.The Supreme Court of India followed this case in A.G. of India v. Amritlal Prajivandaswhere court upheld the validity of SAFEMA act which provided for forfeiture of properties gained by smuggling or other malafide activities.The scope of this Doctrine was amplified in DDA v. Skipper Construction Co.case where Court stated that wherever the general public is defrauded by illegal acquire of properties, the Court can pass necessary orders irrespective of the fact that there was a fiduciary relationship or not or whether a holder of public office was involved or not. The court further pronounced that courts in India are not only courts of law but also courts of equity.Affixing liability on the wrongdoer is the need of the hour. What this means is that the public official needs to be held accountable for his actions. The Courts now award compensation as well as impose exemplary costs for violation of persons fundamental rights and for the abuse of power on the guilty public officer. The Apex Court in Nilabati Behera v. State of Orissaheld that compensation for violation of human rights and abuse of power is a recognized claim under public law. The court held that the human rights of victims should be given constitutional protection by availability of public law review under Article 226 and Article 32. Judicial Activism in this field is evident from the fact that the court has evolved the principle of polluter must pay in case of environmental pollutionand that every administrative authority shall be held to be accountable for the proper and efficient discharge of its statutory duty.SCOPE OF PUBLIC ACCOUNTABILITY Public Accountability is a facet of administrative efficiency. Publicity of information serves as an instrument for the oversight of citizens. By the same token it suggests that law could become a means for fighting corruption. Therefore, a Government which produces a trustworthy flow of information creates greater certainty and transparency. This is especially appreciated by those who intend to invest in the Country. International experience shows that countries that allow citizens access to public information have seen a reduction in indicators of corruption and, consequently, substantial increases in administrative efficiency. Public Accountability is a part of governance. It is the Government that is accountable to the public for delivering a broad set of outcomes but more importantly it is the public service consisting of public servants that constitutes the delivery mechanism. Therefore, the accountability and governance arrangements between Government which acts as the principal and the public service which is its agent, impact on the Governments ability to deliver and on its accountability to the public. The challenge lies in ensuring that the public service is geared to meet the expectations of the Government of the day and that public service is neutral, whichever party is in power. When a Government department translates a Governments policy into programmes, the success of that translation is very much dependent on a clear understanding of and commitment to the outcomes that are sought. It is not surprising that the history of accountability and governance within the public service has shifted from measuring inputs to measuring outputs, to matching outputs, and identify outcomes. The key which weakens accountability or the effectiveness of the Government or the public sector is the lack of information.[footnoteRef:6] [6: Governance and Accountability in the Public Sector, speech by Honble Lianne Dalziel, 2003 (www.scoop.co.nz).]

CORRUPTION- AN IMPEDIMENT IN TRANSPARENCYThe problem of administrative corruption is perhaps as old as public administration itself. The enormous expansion of the governmental bureaucracy, both in size and range, has highlighted the problem of effective public checks and control on public administration. The adoption of the goals of a social welfare state in almost all developing countries has resulted in an extension of bureaucracy in size and number. The expansion of governmental tasks results in the increase in the volume of work where administrative power and discretion can be used. Where there is power and discretion, there is always the possibility of abuse.The law commission had pointed out in its fourteenth reportthat there is a vast sphere of administrative action in India in which the bureaucracy can exercise discretionary authority without being accountable to citizens in any way in case of abuse of authority. There has also been rise in administrative adjudication exhibited by the fact that there has been rapid increase in number of administrative tribunals.The problems of executive discretion, delegated legislation and administrative adjudication are vitally connected with the problem of public accountability of administration.The Central Bureau of Investigation (CBI) is the most important body which enforces accountability. It was earlier under the Executive which was proving to be an impediment to enforce accountability in higher echelons of Government.The Supreme Court separated CBI from executive and vested its superintendence in the hands of Central Vigilance Commission (CVC). Now CBI does not need prior approval of the Government to investigate corruption cases. The court also gave several other directions to improve the functioning of the CBI and to make it the most effective body to enforce transparency in the government functionaries.[footnoteRef:7] [7: www.lawteacher.net]

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

RIGHT TO INFORMATION AS A TOOL FOR PUBLIC ACCOUNTABILITYAn important factor responsible for the absence of popular participation in the governance process is the lack of information. Commenting on the need for a open Government, the Supreme Court of India observed that the demand for openness in the Government is based on the reason that democracy does no consist merely in people exercising their franchise once in five years to choose their rulers and once the votes are cast, then returning into passivity and not taking any interest in the Government.Way back in 1975 in the case of Raj Narain v. State of Uttar Pradesh, the Supreme Court of India observed that in a government like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of the country have a right to know any public act. In 1982 in the S.P. Gupta casethe Court emphasized that an open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The Court in 1997 in Dinesh Trivedi v. Union of India held that to ensure the continued participation of the people in the democratic process they must be kept informed of the vital decisions taken by the government and the basis thereof.RTI act is landmark legislation and covers all central, state and local governmental bodies and in addition to the executive it also applies to the judiciary and the legislature. The term information under the act covers right to inspect work, documents and records held by the government and allows for the extraction of certified samples for verification.[footnoteRef:8] [8: www.lawteacher.net]

Right to information has already proved to be an effective instrument for combating corruption in public service. The significant achievements of civil society organisations like Parivartan in Delhi in collecting information regarding flow of public funds, dubious decisions etc. are examples of the power of information, but more significant aspect of the experience is that much more needs to be done in this direction. According to Transparency International, if India were to reduce corruption to the level that exists in the Scandinavian countries, investment could be increased by 12% and the GDP growth rate by 1.5% per annum.Access to information needs to be encouraged on this ground alone.The right to information is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records, (ii) Taking notes, extracts or certified copies of documents or records, (iii) Taking separate samples of material, (iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.The Act applies both to Central and State Governments and all public authorities. A public authority (sec. 2(h)) which is bound to furnish information means any authority or body or institution of self-government established or constituted (a) by or under the Constitution, (b) by any other law made by Parliament, (c) by any other law made by State Legislature, (d) By a notification issued or order made by the appropriate Government and includes any (i) body owned, controlled or substantially financed, (ii) Non-government organization substantially financed.CONSTITUTIONAL ASPECT OF THE RIGHT TO INFORMATIONArticle 19(1) (a) of the Constitution guarantees the fundamental rights to free speech and expression. The prerequisite for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumours and speculations and avoidable allegations against individuals and institutions. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression which includes the right to receive and collect information. This will also help the citizens perform their fundamental duties as set out in Article 51A of the Constitution. A fully informed citizen will certainly be better equipped for the performance of these duties. Thus, access to information would assist citizens in fulfilling these obligations.RIGHT TO INFORMATION IS NOT ABSOLUTEAs no right can be absolute, the Right to Information has to have its limitations. There will always be areas of information that should remain protected in public and national interest. Moreover, this unrestricted right can have an adverse effect of an overload of demand on administration. So the information has to be properly, clearly classified by an appropriate authority.The usual exemption permitting Government to withhold access to information is generally in respect of the these matters: (1) International relations and national security; (2) Law enforcement and prevention of crime; (3) Internal deliberations of the government; (4) Information obtained in confidence from some source outside the Government; (5) Information which, if disclosed, would violate the privacy of an individual; (6) Information, particularly of an economic nature, when disclosed, would confer an unfair advantage on some person or subject or government; (7) Information which is covered by legal/professional privilege, like communication between a legal advisor and his client and (8) Information about scientific discoveries and inventions and improvements, essentially in the field of weapons.These categories are broad and information of every kind in relation to these matters cannot always be treated as secret. There may be occasions when information may have to be disclosed in public interest, without compromising the national interest or public safety. For example, information about deployment and movement of armed forces and information about military operations, qualify for exemption. Information about the extent of defence expenditure and transactions for the purchase of guns and submarines and aircraft cannot be totally withheld at all stages.NEED FOR RIGHT TO INFORMATIONThe Right to Information has already received judicial recognition as a part of the fundamental right to free speech and expression. An Act is needed to provide a statutory frame work for this right. This law will lay down the procedure for translating this right into reality.Information is indispensable for the functioning of a true democracy. People have to be kept informed about current affairs and broad issues political, social and economic. Free exchange of ideas and free debate are essentially desirable for the Government of a free country.In this Age of Information, its value as a critical factor in socio-cultural, economic and political development is being increasingly felt. In a fast developing country like India, availability of information needs to be assured in the fastest and simplest form possible. This is important because every developmental process depends on the availability of information.Right to know is also closely linked with other basic rights such as freedom of speech and expression and right to education. Its independent existence as an attribute of liberty cannot be disputed. Viewed from this angle, information or knowledge becomes an important resource. An equitable access to this resource must be guaranteed.Soli Sorabjee stressing on the need of Right to Information aim at bringing transparency in administration and public life, says, "Lack of transparency was one of the main causes for all pervading corruption and Right to Information would lead to openness, accountability and integrity".According to Mr. P.B. Sawant, "the barrier to information is the single most cause responsible for corruption in society. It facilitates clandestine deals, arbitrary decisions, manipulations and embezzlements. Transparency in dealings, with their every detail exposed to the public view, should go a long way in curtailing corruption in public life."[footnoteRef:9] [9: http://www.rrtd.nic.in]

RIGHT TO INFORMATION IN OTHER COUNTRIESIn recent years, many Commonwealth countries like Canada, Australia, and New Zealand have passed laws providing for the right of access to administrative information. USA, France and Scandinavian countries have also passed similar laws. US Freedom of Information Act ensures openness in administration by enabling the public to demand information about issues as varied as deteriorating civic amenities, assets of senators and utilisation of public funds.It is not only the developed countries that have enacted freedom of information legislation, similar trends are seen in the developing countries as well. The new South Africa Constitution specifically provides the Right to Information in its Bill of Rights--thus giving it an explicit constitutional status. Malaysia operates an on-line data base system known as Civil Services Link, through which a person can access information regarding functioning of public administration. There is thus a global sweep of change towards openness and transparency.In USA, the first amendment to the Constitution provided for the freedom of speech and expression. The country had already passed the Freedom of Information Reform Act 1986, which seeks to amend and extend the provisions of previous legislation on the same subject. But this right is not absolute. Recently, the US Supreme Court struck down two provisions of the Communications Decency Act (CDA), 1996, seeking to protect minors from harmful material on the Internet precisely because they abridge the freedom of speech protected by the first amendment. Moreover, the vagueness in the CDAs language, the ambiguities regarding its scope and difficulties in adult-age verification, make CDA unfeasible in its application to a multifaceted and unlimited form of communications such as Internet.Sweden has been enjoying the right to know since 1810. It was replaced in 1949 by a new Act which enjoyed the sanctity of being a part of the countrys Constitution itself. The principle is that every Swedish citizen should have access to virtually all documents kept by the State or municipal agencies.In Australia, the Freedom of Information Act was enacted in December 1982. It gave citizens more access to the Federal Governments documents. With this, manuals used for making decisions were also made available. But in Australia, the right is curtailed where an agency can establish that non-disclosure is necessary for protection of essential public interest and private and business affairs of a person about whom information is sought.Even the Soviets, under Mikhail Gorbachev, have realised that "the State does not claim monopoly of truth any longer". Glasnost has cast away the cloud of secrecy and stresses the priority of human values.Even as steps are taken to ensure openness in matters affecting the public, there has to be a greater sense of responsibility on the part of users of information in the media and elsewhere. Journalists must ensure that they seek information in public interest and not as agents of interested parties.India has so far followed the British style of administration. In Great Britain, Official Secrets Act, 1911 and 1989 are intended to defend national security by rendering inaccessible to the public certain categories of official information. However, the government recognises that access to information is an essential part of its accountability. A recent legislation governing access to public information includes Local Government (Access to Information) Act, 1985; the Environment and Safety Information Act, 1988, and the Access to Health Records Act 1990 are such laws. On the other hand, Data Protection Act, 1984; the Access to Personal File Act; the Access to Medical Reports Act, 1988, and the Consumer Credit Act, 1974, all provide some protection for different aspects of personal information.[footnoteRef:10] [10: http://www.rrtd.nic.in]

LANDMARK JUDGEMENTSThe need for Right to Information has been widely felt in all sectors of the country and this has also received judicial recognition through some landmark judgements of Indian courts.A Supreme Court judgement delivered by Mr. Justice Mathew is considered a landmark. In his judgement in the state of UP vs. Raj Narain (1975) case, Justice Mathew rules-In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security.But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people.According to Attorney General Soli Sorabjee - It was in 1982 that the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India (AIR) 1982 SC (149), popularly known as Judges case.Here again the claim for privilege was laid before the court by the Government of India in respect of the disclosure of certain documents.The Supreme Court by a generous interpretation ofthe guarantee of freedom of speech and expression elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees.The court declared - The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19 (1) (a).The Supreme Court of India has emphasised in the SP Gupta case (1982) thatopen Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.In a country like India which is committed to socialistic pattern of society, right to know becomes a necessity for the poor, ignorant and illiterate masses.In 1986, the Bombay High Court followed the SP Gupta judgement in the well-known case Bombay Environmental Group and others vs. Pune Cantonment Board.The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists. This was considered a landmark judgement concerning access to information.[footnoteRef:11] [11: http://www.rrtd.nic.in]

Main points of resolutioni. The Right to Information should also be extended in respect of companies, NGOs and international agencies whose activities are of a public nature and have a direct bearing on public interest.ii. The law must contain strong, penal provisions against wilful and wanton withholding or delay in supplying information or deliberately supplying misleading or inaccurate information.iii. The law should contain an appeal mechanism of an independent nature to provide reliable redress to any citizen dissatisfied with any decision of a public authority under this law. In the present draft Bill, all appeals are to other Government authorities.iv. The categories of information, which can be restricted or withheld by the Government, are too wide in the draft Bill. In particular, the restriction on disclosing internal notings and official correspondence between public officials and offices has no justification whatsoever. In a democracy, people have the right to know how and why a particular decision has been arrived at and who made what recommendations with what justification. We do not support the view that this will deter candour in the expression of views of public servants. Honest public servants expressing their opinions honestly cannot be deterred by the knowledge that their opinions will become known to the people.v. Similarly the restriction on confidential communications between the State and Centre and their agencies have no justification, unless they harm public interest.vi. The restriction on disclosure of the record of discussions of Secretaries and other public servants also needs to be removed.

JUDICIAL REVIEW

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

Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review ofsecondary legislation(legally-enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States, Scotland and the Netherlands), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within theHigh Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by theUnited States district courts(which are the general trial courts), some are reviewed directly by theUnited States courts of appealsand others are reviewed by specialized tribunals such as theUnited States Court of Appeals for Veterans Claims(which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.The provisions of Article 13 are: Article 13 (1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution of India, in so far as they are inconsistent with the provision of Part III dealing with the fundamental rights shall, to the extent of such inconsistency, be void. Article 13 (2) provides the State Shall not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 245 makes it clear that the legislative powers of Parliament and of the State Legislatures are subject to the provisions of the Constitution. Parliament may make laws for the whole or any part of the territory of India and the legislature of State may make laws for the whole or any part of the State. No law made by Parliament shall be deemed to be invalid on the ground that it would have been extra-territorial operation. The State Legislature can make law only for the State concerned and, therefore, the law made by the state Legislature having operation outside the State would be beyond its competence and, therefore ultra vires and void.JUDICIAL REVIEW AS A PART OF BASIC STRUCTUREIn the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:1. Supremacy of the Constitution.2. Republican and democratic form of Government.3. Secular character of the Constitution.4. Separation of powers between the legislature, the executive and the judiciary.5. Federal character of the Constitution.He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. InS.P. Sampath Kumarv.Union of India (1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying onMinerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. InSampath Kumarthe Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.InKihoto Hollohanv.Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.Subsequently, inL. Chandra Kumarv.Union of India (1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:"that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Checks and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review anything everything that is done by the legislature.[footnoteRef:12] [12: http://www.mondaq.com]

Limitation on the power of review:The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.One many say that if there is any limitation on judicial review other than constitutional and proceduralthat is a product of judicial self-restraint. As justice Dwivedi empathically observed, "Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the courts structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law."The above observations also reveal another assumption to support an attitude of self-restraint, viz., and the element subjective ness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, "the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called reading down. The essence of the device is that "if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction."22But all this depends on the outlook and values of the judge.23When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.ConclusionAccountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey, of course modified in later editions, referring to John Wilkes's case,that "conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law." But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.The growth ofjudicial reviewis the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.[footnoteRef:13] [13: http://www.mondaq.com/]

Accountability is one of those golden concepts that no one can be against. It is increasingly used in political discourse and policy documents because it conveys an image of transparency and trustworthiness. However, its evocative powers make it also a very elusive concept because it can mean many different things to different people, as anyone studying accountability will soon discover. This paper nevertheless tries to develop an analytical framework for the empirical study of accountability arrangements in the public domain. It starts from a narrow, relational definition of accountability and distinguishes a number of indicators that can be used to identify and classify accountability arrangements. Furthermore, it develops three perspectives to assess and evaluate accountability arrangements in the public domain.[footnoteRef:14] [14: This paper is an adapted and extended version of a chapter on public accountability which will be published in E. Ferlie, L. Lynne & C. Pollitt (eds.), The Oxford Handbook of Public Management, Oxford: Oxford University Press 2005 and a Dutch paper which was published in: W. Bakker & K. Yesilkagit (red.), Publieke verantwoording, Amsterdam: Boom 2005. I thank Paul t Hart, Peter Mair, Thomas Schillemans, and Marianne van de Steeg for their valuable comments on previous versions of this paper.]

BIBLOGRAPHY

www.google.co.in www.rrtd.nic.in indialawyers.wordpress.com www.legalservicesindia.com www.manupatrafast.com www.lawteacher.net www.lawnotes.in supremecourtofindia.nic.in

BOOKS

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

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