Doctrine of Proportionality - Legitimate Expectation - Public Accountability

1. Introduction

A. Doctrine of Proportionality

The doctrine of proportionality is of European origin. The principle of proportionality has been characterised as the most important general legal principle in the European Administrative Law. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employs to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve the public interest. This means that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred.

The implication of the principle of proportionality is that the court will weigh for itself, the advantages and disadvantages of an administrative action. Only if the balance is advantageous, will the court uphold the administrative action. The Administration must draw a balance—sheet of the pros and cons involved in any decision of consequence to the public and to individuals. The principle of proportionality envisages that an administrative action could be quashed if it was disproportionate to the mischief at which it was aimed. The measures adopted by the Administration must be proportionate to the pursued objective. An administrative authority while exercising a discretionary power should maintain a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues. All in all, it means that the decision- maker must have a sense of proportion.

B. Legitimate Expectation

The doctrine of legitimate expectation is relatively new concept that has been fashioned by Courts for the review of administrative action. The concept gained standing after it was introduced by Lord Denning in Schimdt v Secretary of Home Affairs wherein he recognized, as obiter, the ‘right, interest, or legitimate expectation’ of an individual against an administrative action with regards to the right to be heard. The doctrine has similarities to the German public law, the concept of Vertrauensschutz, which means ‘protection of legitimate confidence. In Germany, the protection of legitimate confidence is grounded in their Constitution. It could be argued that there is similar grounding in India as well. A similar concept can also be seen in French Law termed ‘protection de la confiance legitime’.

C.Public 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-à-vis different parts of the government. The electoral process, the ultimate accountability mechanism in a democratic country, has performed well for over 50 year. 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.

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2. Evolution of Doctrine of Proportionality ln many cases in Britain, proportionality has been treated merely as an aspect of the Wednesbury unreasonableness. The main reason for judicial reticence in Britain in adopting proportionality as a distinct head of judicial review is that it may involve the courts in assessing the merits of a discretionary decision taken by the Administration, and for long, the courts have been advocating the proposition that the courts do not probe into the merits of a discretionary decision but see if there is any flaw in the decision—making process and that this places the courts in the role of a secondary reviewer and not a primary reviewer. This point was specifically made clear by LORD ACKNER in Brind1. He reasoned that if proportionality were to add something to our existing law, then it must be by imposing a more intensive standard of review than the traditional Wednesbury unreasonableness. This would mean “that an inquiry into and a decision upon the merits cannot be avoided, in the sense that the court would have to balance”. The principle of proportionality in its broad European sense has not so far been accepted in India. Only a very restrictive version thereof has so far come into play. The reason is that the broad principle does not accord with the traditions of common-law judicial review. The European version of proportionality makes the courts as the primary reviewer of administrative action, whereas in common-law, the courts have so far played the role of the secondary reviewer. In European Droit Administratif review of administrative action is entrusted to administrative tribunals and not to ordinary courts and, therefore, the broad concept of proportionality can be followed. In common-law, the tradition so far has been that the courts do not probe into the merits of an administrative action. This approach comes in the way of a full-fledged acceptance of the principle of proportionality, for, if accepted, it will turn the courts into primary reviewer of administrative action. Accordingly, in India, the courts apply the principle of proportionality in a very limited sense. The principle is applied not as an independent principle by itself as in European Administrative Law, but as an aspect of Article 14 of the Constitution, viz., an arbitrary administrative action is hit by Article 14.Therefore, where administrative action is challenged as ‘arbitrary’ under Art. 14, the question will be whether the administrative order is ‘rational’

1 R. v. Home Ministry, Ex. p. Brind,(1991) 1 AC 696 3 | Page or ‘reasonable’ as the test to apply is the Wednesbury test2. As has been stated by the Supreme Court in E. Royappa v. State of Tamil Nadu3, if the administrative action is arbitrary, it could be struck down under Art. 14. Arbitrary action by an administrator is described as one that is irrational and unreasonable. Accordingly, a very restrictive version of proportionality is applied in the area of punishments imposed by administrative authorities. The first proposition in this regard is that the quantum of punishment imposed by a disciplinary authority on a civil servant for his misconduct in service is a matter of discretion of the disciplinary authority. The second proposition is that the punishment has to be reasonable because of the constraints of Art. 14. This means that if the punishment imposed is unreasonable, Art. 14 is infringed. The court can thus decide upon the proportionality of the punishment when it is strikingly disproportionate. The court would not interfere with the matter of punishment on compassionate ground, or because it considers the punishment disproportionate. The court would interfere only in such extreme cases which on their face show perversity or irrationality. The Wednesbury test is to be applied in such a case. The Supreme Court has laid down the principle in Om Kumar v. Union of India4 in these words: “...When an administrative decision relating to punishment in disciplinary cases is questioned as ‘arbitrary’ under Art. 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court. . .” The court would thus intervene in the matter of punishment only when it is satisfied that Wednesbury principle has been violated5. Below are given a few examples as to how this proposition is applied to specific factual situations. In Union of India V. R.K. Sharma6,the Supreme Court has again laid down the principle as follows: The court cannot while exercising power under Art. 32/226 interferes with the punishment because the court considers it to be disproportionate. "It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a court should not interfere".

2 Associated Provincial Picture House v. Wednesbury Corpn., (1947) 2 All ER 680. 3 E. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 : (1974) 4 SCC 3 : 1974 (1) LLJ 172. 4Om Kumar v. Union of India, AIR 2000 SC 3689, at 3704: 2000 LIC 304: 2000 (7) Scale 524. 5 State of Tamil Nadu v. A. Rajapondian, AIR 1995 SC 561 : (1995) 1 SCC 216 : 1995 (1) LLJ 953. 6 Union of India v. R.K. Sharma, AIR 2001 SC 3053: JT 2001 (9) SC 76 : (2001) 5 SLR 731. 4 | Page

The court thus interferes when the quantum of punishment is “shockingly disproportionate”, or it shocks the conscience of the court. The following cases illustrate the point: (i) The appellant was removed from government service on the ground of misconduct. Taking the kind of misconduct in view, the Supreme Court characterised the punishment of removal from service as arbitrary and quashed the order in question7. (ii) The Supreme Court has observed in Bhagat Ram V. State of Himachal Pradesh8 “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution.” Prima facie, this was a broad statement which seemed to accept the principle of proportionality as such. But since then the Supreme Court has qualified the statement. Instead of the ‘disproportionate’, the expression ‘shockingly disproportionate’ has come to be substituted. (iii) In the context of “unfair labour practice” under Labour Law, the Supreme Court has observed :9 "But, where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice". Accordingly, in several cases, the punishment of dismissal imposed on workmen by their employers have been quashed on the ground that the same is grossly disproportionate to the nature of the charges held proved against the workman concerned. In a number of cases, the Supreme Court has refused to intervene with the punishment imposed by the disciplinary authority as it was not found to be shockingly disproportionate to the offence in question.10 For example, in B.C. Chaturvedi v. Union of India11, a government servant was dismissed from service because he was found to have assets disproportionate to his known sources of income. The Tribunal taking in view his brilliant academic record and 30 years of service, substituted the punishment of dismissal with compulsory retirement. The Supreme Court, on appeal, set aside the Tribunal order and restored the order of dismissal imposed on him by the disciplinary authority; The Court maintained that the disciplinary

7 A.L. Kalra v. P&E Corporation of lndia Ltd, AIR 1984 SC 1361 8 Bhagat Ram v. State of HimachaI Pradesh, AIR 1983 SC 454 at 460 9 Hind Construction & Engineering Co. Ltd v. Their Workmen, AIR 1965 SC 10 Union of India v. G. Gangayuthan, AIR 1997 SC 3387; Om Kumar v. Union of India, AIR 2000 SC 3689 11B.C. Chaturvedi v. Union of India , AIR 1996 SC 48 5 | Page authority is invested with discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. The Court observed further in this connection: “The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. lf the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” In a concurring judgment, HANSARIA, J., emphasized that not only the Supreme Court, but even a High Court in a writ petition can apply its judicial mind to the question of proportionality of punishment. “But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.

3. Doctrine of Legitimate Expectation

When an individual seeks judicial review on the ground of his legitimate expectation being defeated, Courts have to first determine whether there existed a legitimate expectation. A legitimate expectation is said to arise “as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.” Therefore it extends to a benefit that an individual has received and can legitimately expect to continue or a benefit that he expects to receive. When such a legitimate expectation of an individual is defeated, it gives that person the locus standi to challenge the administrative decision as illegal. Thus even in the absence of a substantive right, a legitimate expectation can enable an individual to seek judicial review.

3.1 The Doctrine of Legitimate Expectation in India

3.1.1 Judgments and Rationale of Important Cases Pertaining to Legitimate Expectation in India

The procedural aspect of the doctrine of legitimate expectation has been well established in India. However, the substantive aspect of the doctrine is still in its developing stages. The Supreme Court of India has come up with different judgments on the topic without much

6 | Page clarity as to the application of the doctrine. The leading case that dealt with the doctrine in length was the case of Union of India v Hindustan Development Corporation12.

In this case the Indian Railways introduced a dual pricing system initiated by so as to enable healthy competition between three manufacturers, whose work was on a large scale and smaller manufacturers. The dual pricing meant that the railways still gave counteroffers for an even lower rate while at the same time, granting tenders to small manufacturers for a higher rate. The big manufacturers challenged this policy on various grounds including unreasonableness and that they had a legitimate expectation of being treated in a certain way by the Railways as established by a longstanding conduct of the Indian Railways.

The Supreme Court while addressing the topic of legitimate expectation laid down the current position of legitimate expectation in India. The Court acknowledged legitimate expectation as being sufficient locus standi for judicial review. However, in this judgment, the doctrine of legitimate expectation was mostly confined to procedural legitimate expectation by stating that “it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negating a promise or withdrawing an undertaking is taken.”

However, it sets down a heavy burden of the applicant to establish the existence of a legitimate expectation and its denial by the state. The applicant has to establish a foundation for the claim. According to the Court, ‘a legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill’.Moreover an applicant must also show that the actions of the authority was arbitrary, unreasonable and against public interest. Anything that is arbitrary is violative of Article 14 of the Constitution and is therefore void.

The Court also allows denial of legitimate expectation when it is in public interest or when it is a change in policy. However, the authority has a duty to justify this decision based on some overriding public interest. This seems to be another test laid down by the Court. However, the wording of the test seems to suggest that it is more applicant-friendly and have better chances of success in judicial review. Tests which indicate different levels of substantiation required will only add to the confusion regarding the doctrine.

12Union of India v Hindustan Development Corporation,1993 SCR (3) 128 7 | Page

Once these tests and the court are satisfied as to the existence and denial of a legitimate expectation, the courts will then look into whether in denying the right to hearing has resulted in a ‘failure of justice’ and the order may be quashed. The Court also clarified that one cannot claim a relief immediately based on legitimate expectation as there is no crystallized right involved. It is only the steps mentioned above that the relief may be considered. These further shows that for all practical purposes, substantive legitimate expectation do not seem to be recognized by the Supreme Court. However, the Court does state that even if substantive legitimate expectation were considered, there is no absolute right for the applicant. Instead the Court would only determine the circumstances under which a legitimate expectation may be denied or restricted.

In the case of Punjab Communication Ltd. v Union of India13, the Supreme Court recognizes the substantive aspect of the doctrine and observes that it has been ‘accepted as part of our law’.However the concept of the doctrine used in this case seems flawed. The Court took the definition of the doctrine of legitimate expectation as given in the Raghunathan case, wherein the Court observed that “ … claims based on "Legitimate Expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppels” The Supreme Court upheld this requirement in the Punjab Communication case. Moreover, the Court also seems to indicate that a promise or representation is also mandatory for the doctrine to apply. It seems that this definition is more suggestive of the doctrine of promissory estoppel rather than that of substantive legitimate expectation.

In this case the Court laid down the Wednesbury test as the test for determining whether there has been a denial of a legitimate expectation and whether such denial is justified and on application found that the test was not satisfied.

In International Trading case, the court applied the Wednesbury test and observed that

“If a denial of legitimate expectation in a given case amounts to denial of a right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of the principles of natural justice, the same can be questioned on the ground attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke those principles”

13Punjab Communication Ltd. v Union of India, AIR SC 1999 146 8 | Page

The concept of legitimate expectation is confused here with the denial of a legal right. The doctrine is applicable when there is no substantive right on the part of the applicant. The violation of a legal right would give rise automatically to a cause of action, which has nothing to do with legitimate expectation.

Interestingly, in the case of Secretary, Cannanore District Muslim Educational Association, Kanpur v State of Kerala and others14,the Supreme Court granted the writ of mandamus to the educational institution on the ground of denial of a legitimate expectation which arose out of a government promise without applying any of the tests laid down above.

It is also to be noted that J. Katju has recently referred a case to the Constitution Bench of the Supreme Court, citing a lack of clarity in the application of principles of estoppel and legitimate expectation. However, none of the relevant case law do not seem to have been considered in this judgment and this seems to be a reference only pertaining to the application of the doctrine of legitimate expectations in this particular case. The Constitution Bench may have to consider relevant case law in order to establish the test as well as clarify the doctrine of legitimate expectation.

3.2. Doctrine of Legitimate Expectation and Article 14 of the Constitution of India.

Under Article 14 of the Constitution of India, every citizen has the right to equality of law and equal protection before law. The concept of an arbitrary action being in violation of Article 14 was first introduced by J. Bhagwati in the case of E.P. Royappa v State of Tamil Nadu15, wherein he stated that ‘equality is antithetic to arbitrariness’. Thus Article 14 has a very wide ambit and encompasses within it equality, the principles of natural justice and is a mandate against arbitrary state actions. This imposes a duty on the state to act fairly. Good governance in conformity with the mandate of Article 14, “raises a reasonable or legitimate expectation in every citizen to be treated fairly in its interaction with the state and its instrumentalities.”

Law includes “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. By virtue of Article 13(2), any law made in contravention of any provision of the Constitution is void. Thus anything which is arbitrary or unreasonable or violative of the principles of natural justice is void by virtue of Article 14

14 http://www.lawyerservices.in/Secretary-Cannanore-District-Muslim-Educational-Association-Kanpur-Versus- State-of-Kerala-and-Others-2010-05-07 15E.P. Royappa v State of Tamil Nadu, 1974 SCR (2) 348 9 | Page read with Article 13(2) of the Constitution. Applying such a high threshold of proof for the doctrine of legitimate expectation is unnecessary as is the doctrine itself by appearances.

It must also be noted that Article 14 encompasses the principles of natural justice which include right to hearing. It could be argued that the doctrine of legitimate expectations have its grounding in the Constitutional provisions of India, much like they do in Germany. However, the Supreme Court has applied a confused approach to the doctrine of legitimate expectation and in the process, made the doctrine irrelevant, without realizing its potential.

4. Evolution of Public Accountability

The most important case which elaborated the scope of doctrine of public accountability is A.G. Hong Kong v. Reid16. 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 Prajivandas17 where court upheld the validity of SAFEMA act which provided for forfeiture of properties gained by smuggling or other malafide activities.

The scope of this Doctrine was amplified in DDA v. Skipper Construction Co18. 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 person’s fundamental rights and for the abuse of power on the guilty public officer. The Apex Court in Nilabati Behera v. State of

16A.G. Hong Kong v. Reid[1993] UKPC 36 17A.G. of India v. Amritlal Prajivandas, 1994 SCC (5) 54 18DDA v. Skipper Construction Co., 1996 SCC (4) 622 10 | Page

Orissa19 held that compensation for violation of human rights and abuse of power is a recognized claim under public law. The court held that the human rights of victims should be given constitutional protection by availability of public law review under Article 226 and Article 32. Judicial Activism in this field is evident from the fact that the court has evolved the principle of “polluter must pay” in case of environmental pollution and that every administrative authority shall be held to be accountable for the proper and efficient discharge of its statutory duty.

4.1 Corruption- An Impediment in Transparency

The problem of administrative corruption is perhaps as old as public administration itself. The enormous expansion of the governmental bureaucracy, both in size and range, has highlighted the problem of effective public checks and control on public administration. The adoption of the goals of a social welfare state in almost all developing countries has resulted in an extension of bureaucracy in size and number. The expansion of governmental tasks results in the increase in the volume of work where administrative power and discretion can be used. Where there is power and discretion, there is always the possibility of abuse.

The law commission had pointed out in its fourteenth report that there is a vast sphere of administrative action in India in which the bureaucracy can exercise discretionary authority without being accountable to citizens in any way in case of abuse of authority. There has also been rise in administrative adjudication exhibited by the fact that there has been rapid increase in number of administrative tribunals.

The problems of executive discretion, delegated legislation and administrative adjudication are vitally connected with the problem of public accountability of administration.

The Central Bureau of Investigation (CBI) is the most important body which enforces accountability. It was earlier under the Executive which was proving to be an impediment to enforce accountability in higher echelons of Government. The Supreme Court separated CBI from executive and vested its superintendence in the hands of Central Vigilance Commission (CVC). Now CBI does not need prior approval of the Government to investigate corruption cases. The court also gave several other directions to improve the functioning of the CBI and to make it the most effective body to enforce transparency in the government functionaries.

19Nilabati Behera v. State of Orissa, 1993 SCR (2) 581 11 | Page

Sanathan Commission while noting prevalence of corruption in India observed that “we are told by a large number of witnesses that in all contracts of construction, purchase, sale and other regular business on behalf of the Government, a regular percentage is paid by the parties to the transaction and this is shared in agreed proportions among the various officials concerned”.

Fighting against corruption cannot succeed unless the government does something to change the system under which it has been operating particularly in the area of public administration. The bureaucracy has to be depoliticized and be left with the authority and power to operate according to the requirements of the professions. The success or failure of government depends upon the efficiency of public administration but administration cannot be efficient if it is interfered with or forced to act contrary to laid down procedures. Simultaneously, the welfare of employees has to be taken care of. The need for a realistic salary structure is obvious. This will help curtail corruption as money is a major motive behind corruption.

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 case20 held that the Members of Parliament and Members of Legislative Assemblies are covered within the ambit of public servants under PCA. The court said that these persons cannot claim immunity from prosecution under Article 105 for any offence committed outside Parliament/Legislature. This judgment was however criticized on other ground mainly that Article 105 is not an enabling provision for corruption. The purpose of the immunity is legislative independence but giving or receiving bribes is not part of legislative process.

4.2 Right to Information as a Tool for Enforcing Public Accountability

An important factor responsible for the absence of popular participation in the governance process is the lack of information. Commenting on the need for a open Government, the Supreme Court of India observed that the demand for openness in the Government is based on the reason that “democracy does no consist merely in people exercising their franchise once in five years to choose their rulers and once the votes are cast, then returning into passivity and not taking any interest in the Government.”

20P.V. Narasimha Rao v. State, (1998) 4 SCC 626 12 | Page

Way back in 1975 in the case of Raj Narain v. State of Uttar Pradesh21, 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 case22 the Court emphasized that an open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The Court in 1997 in Dinesh Trivedi v. Union of India23, 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.

India has travelled a long way from the Supreme Court judgment of right to know in 1975 to 2005 when the Right To Information Act (RTI) was passed. RTI act essentially tries to usher in a new administrative culture and further strengthen democracy. It has been hailed by the Chief Information Commissioner of India as outstanding legislation in the world and unprecedented going by the public response. RTI act is an important tool in the hands of people and it is bound to change the mind-set of the administrative machinery.

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.

There have been demands from different corners of the country that the law should be amended to refuse information that is not relevant to an applicant. But refusing information is not the answer to the problem. The answer lies in reducing the ‘need’ for such information. Proactive disclosures by authorities can be a very positive and people friendly step. After all, the RTI act itself is based on the principles of ‘Maximum Disclosure’ and ‘Minimum Exemptions’. The Government offices are flooded with RTI applications, some of which are indeed frivolous. The problem can only be solved if the Government voluntarily makes available such information in public domain. The Act also allows the people to obtain information about the file noting so that people know how any governmental decision is reached. Instead of lamenting the exposure RTI act could give any public official, he should consider it as a boon. It will enable him to express his opinion fearlessly and objectively and

21 Raj Narain v. State of Uttar Pradesh, 1975 SCR (3) 333). 22 SP Gupta v Union of India, 1982 2 SCR 365. 23 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 13 | Page give him an effective shield against pressures for manipulating his noting. In short, if he is honest, he should welcome the exposure. It is only those who have to hide something that should fear the exposure.

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.

4.3 MCI and CWG Cases- Blot on Good Governance

India has always functioned under the clutches of corruption. The two recent major events which symbolise complete flouting of norms of public accountability are the Medical Council of India (MCI) scandal and Commonwealth Games (CWG) organisation in Delhi. These two cases amply make it clear that corruption is deep rooted in Indian society and there is urgent need to make the public officials accountable for their acts.

MCI president Dr Ketan Desai and two others were arrested in April 2010 for allegedly accepting a bribe of Rs 2 crore to grant recognition to a medical college in Punjab. The main objectives of the Medical Council include maintenance of uniform standards of medical education and recommendation for recognition/de-recognition of medical qualifications of medical institutions of India or foreign countries. Such incidents clearly go against the mandate of MCI and the general public is being defrauded by such acts. These public officials must be held accountable for their acts and most severe punishment must be awarded so that such acts are never repeated as the public officials have no right to abuse their statutory authority.

There have been many reports that the CWG games which are to be held in Delhi in October 2010 are also not free of corruption and malpractices Central Vigilance Commission, CVC, has said in its observations that the works have been awarded at higher rates, besides poor site management and quality compromises. CVC also said that work has been allotted to non eligible companies and there are poor quality assurances. Due to such malpractices and

14 | Page delays in preparation the work now costs the Government more than 1000% of what it was estimated. The taxpayers have to bear the burden of lack of accountability on part of the Organising Committee. The Government needs to ensure that the people in charge of organising the games are held accountable for their actions. These people have been given absolute power and the saying “power corrupts and absolute power corrupts absolutely” is wholly applicable in this case.

5. Conclusion

A. “Doctrine of proportionality” is a theory, which has great practical and social significance in India. The said doctrine originated as far back as in the 19th century in Russia and was later adopted by Germany, France and other European countries. By proportionality, it is meant that the question whether while regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose for which they were intended to serve. Ever since 1952, the principle of proportionality has been applied vigorously to legislative and administrative action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, this Court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. In cases where such legislation is made and the restrictions are reasonable yet, if the statute concerned permitted administrative authorities to exercise power or discretion while imposing restrictions in individual situation, question frequently arises whether a wrong choice is made by the administrator for imposing the restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restrictions etc. In such cases, the administrative action in our country has to be tested on the principle of proportionality, just as it is done in the case of main legislation. This, in fact, is being done by the courts. Administrative action in India affecting the Fundamental Freedoms had always been tested

15 | Page on the anvil of the proportionality in the last 50 years even though it has not been expressly stated that the principle that is applied is the proportionality principle.

B. The doctrine of “legitimate expectation” is a judicial innovation that provides locus standi to a person who though does not have a legal right, does have an expectation of the concerned authority behaving in a certain way. The procedural aspect of the doctrine is well established. However, the substantive aspect of the doctrine is still in its growing stages.

With reference to India, legitimate expectation may be seen to have a grounding in principles of natural justice which are encompassed by article 14 of the Constitution. Rather than strengthening the doctrine, the Courts have put arbitrariness as the required threshold for checking whether the denial of a legitimate expectation was justified. Such a reading has made the doctrine irrelevant in India, since anything in violation of the provisions of the Constitution is void. Setting forth a test that will ensure that the bar is not too high as to render the doctrine unnecessary is also necessary from an Indian point of view. Adoption of the reasoning and test in Coughlam would further strengthen the standing of the doctrine before the legal community. Clarifying the doctrine, particularly in light of the recent reference to the Constitutional Bench of the Supreme Court, and broadening the scope of substantive legitimate expectations are steps that can be taken by Courts in India.

The concepts of fairness ought to apply principles of natural justice for any change in policy decision as well. Choosing which petitions, which challenge change of policy, to admit will be difficult. However, when used effectively, the doctrine can be a tool for ensuring fair administrative action.

C. “Doctrine of Public Accountability” is the government’s task does not end by creating institutions, laws and other mechanisms for public accountability; they have to ensure that these laws are effective. The Indian Judiciary has played an active role in the evolution of this doctrine and has helped in providing the Indian citizens an effective tool, by the way of compensation, to redress their grievances and to affix liability on public officials. The problem of corruption as highlighted in the paper makes it difficult for the government to make administrative institutions accountable for proper execution. The Government, by passing legislation like Right to Information act, has shown its intention for ushering in an era of good governance and such legislation are welcome as they help in enforcing accountability in administrative authorities. Much needs to be done in this area and the public officials need

16 | Page to take a step forward and ensure that the taxpayers’ money is properly utilized and the public functions are carried out smoothly and transparently. The government should also implement performance appraisal mechanisms and provide incentives to honest officials so that it encourages other officials to follow suit. The salaries of Government officials also need to be raised to the level of their counterparts working in Private sphere so that they don’t feel maltreated and perform their functions honestly.

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