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2007 Assessment

India: Integrity Indicators Scorecard

India: Integrity Scorecard Report > Sub-Category: Executive Accountability
Indicators		Score
23	In law, can citizens sue the government for infringement of their civil rights?	100
24	Can the chief executive be held accountable for his/her actions?	88
25	Is the executive leadership subject to criminal proceedings?	50
26	Are there regulations governing conflicts of interest by the executive branch?	66
27	Can citizens access the asset disclosure records of the heads of state and government?	83
28	In practice, official government functions are kept separate and distinct from the functions of the ruling political party.	75

Indicator and sub-Indicator Details

In law, can citizens sue the government for infringement of their civil rights?

23: In law, can citizens sue the government for infringement of their civil rights?

Score:

YES

Comments: As part of the provisions relating to fundamental rights, citizens have a constitutionally guaranteed right to plead for the enforcement of their rights. The Supreme Court and the High Court are empowered to issue writs in case of violation of fundamental rights against the allegedly offending agency, whether it be the legislature or the executive. All fundamental rights, including the right to constitutional remedies, stand suspended only at the time of the declaration of an emergency. While these rights are guaranteed in law, the technicalities involved in court procedures and limitations of access for socially disadvantaged groups limit the capacity to use this right.

References: Article 32 of the constitution

Can the chief executive be held accountable for his/her actions?

24a: In practice, the chief executive gives reasons for his/her policy decisions.

Score:

100

Comments: We need to begin with a rider. In a parliamentary system the chief executive is the president who plays a largely ceremonial role. The Council of Ministers headed by the prime minister is the real executive, and the prime minister is the head of government.

The parliamentary system of governance makes it binding upon the (real) executive to give reason for every action taken. The Council of Ministers is accountable to the lower house of Parliament, which is directly elected by the people. The House has the power to question the actions of the executive thereby making it accountable and responsible for every action. Most major policy decisions are vigorously debated in Parliament with the opposition subjecting initiatives to careful scrutiny. The question hour in the Indian Parliament is a testing time for the executive. However, it must be conceded that given recent scandals surrounding the question hour, there is some public cynicism about the utility of this time. Parliamentarians have the opportunity to turn the attention to the actions of the government during other debates in the House. Today, parliamentary proceedings, especially crucial debates and the question hour, are televised and accessible to the public at large. Therefore, the public is kept informed of the reasons behind the government's policy decisions. There is a flip side to this analysis. Increasingly, the executive is attempting to marginalize the legislature. The most recent example would be the nuclear deal with the United States. The opposition and some allies of the government are up in arms in Parliament against an important policy decision made by the government. A linked development is that legislative proceedings are increasingly being stalled and deliberations disrupted. An important question on whether legislators see their role outside the House as being more important than inside the House becomes relevant.

References: www.parliamentofindia.nic.in;

www.timesofindia.com

Peer Review Comments: This rarely happens.

24b: In law, the judiciary can review the actions of the executive.

Score:

YES

Comments: The power of the judiciary to review the actions of the executive is an `assumed/implied power`, although the judiciary has held that the power of judicial review is part of the basic structure of the constitution. With regard to the review of the actions of the executive, the judiciary does not act suo motto. The judiciary pronounces judgements on the legality of executive actions in response to cases filed in the court in this regard. A practice that is being increasingly followed is the recourse to public interest litigation. Over the years there have been a few instances of serious conflict between the executive and the judiciary, the most recent being on the matter of reservations from backward castes in federal government elite educational institutions.

References: Articles 286, 299, 301 and 304 of the constitution.

Peer Review Comments: Only on formal complaints through court cases.

24c: In practice, when necessary, the judiciary reviews the actions of the executive.

Score:

100

Comments: India has been witness to judicial activism with the courts, striking down governmental decisions quite frequently. The public often views the judiciary as a check on the actions of the government. This development does not find uniform acclaim across the country. Firstly, many view the intervention of the judiciary as an ad hoc arrangement in view of the executive not being proactive on its responsibilities. It could be argued that the actions of the judiciary are a stop gap remedy - a legal `fist aid`, which cannot be a long term/long lasting solution to the problem. Secondly, there are alarm bells being raised on the accountability of judicial activism. How does one `guard the guradian`? This is a common refrain of many.

References: Supreme Court pronouncements; Legal opinions: www.timesofindia.com; www.expressindia.com

Peer Review Comments: Judiciary's role in India is dismal and often whimsical. There is no system in its interventions even when called for through cases.

24d: In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.

Score:

100

Comments: Under the provisions of the constitution and the laws, the Council of Ministers can recommend to the president the creation of new regulations and policies. If Parliament is in session, the practice is generally that the Council of Ministers makes the announcement on the floor of the House. There have been some criticisms by the opposition that the government has been by-passing Parliament and announcing new regulations outside the House. In recent years, there is a feeling that the executive (irrespective of the party in power) has been sidestepping and undercutting the role of the legislature. It is also argued that the response of the legislature has been very feeble, in general, in this regard.

References: Parliamentary debates/ rules of procedure; www.mainstreamweekly.net/article355.html - 19k; www.tribuneindia.com/2007/20070722/nation.htm

Peer Review Comments: The notion of chief executive in India is misleading. The prime minister heads the Union Cabinet. Often, the different ministers work at cross-purposes. As a result, executive orders do not necessarily come from the chief executive and are not limited for governance purposes.

Is the executive leadership subject to criminal proceedings?

25a: In law, the heads of state and government can be prosecuted for crimes they commit.

Score:

YES

Comments: In a parliamentary system we need to make a distinction between the head of state and head of government. The president is the head of state and the constitution protects this position from being taken to court for official actions while in office. This appears to have been done for two reasons. Firstly, to maintain the dignity of the highest office in the land. Secondly, the president acts on the advice of the Council of Ministers and therefore cannot be held personally liable for the actions made in the name of the office.

The head of government, the prime minister is liable to be prosecuted. The prior permission of the president would be necessary for initiating this action.

References: Constitutional Provisions - Articles 14 and 361 of the constitution.

Peer Review Comments: This is a ticklish issue. When in power they cannot be prosecuted. Prosecution is initiated, if at all, only when politicians are out of power. India's record on this is dismal.

25b: In law, ministerial-level officials can be prosecuted for crimes they commit.

Score:

YES

Comments: Action can be initiated for crimes committed. There is a legal requirement that when doing the same, the prior consent of the competent authority would be necessary.

References: Prevention of Corruption Act

Peer Review Comments: Prosecution can be done only with the government approval; the government seldom approves prosecution.

Are there regulations governing conflicts of interest by the executive branch?

26a: In law, the heads of state and government are required to file a regular asset disclosure form.

Score:

YES

Comments: The head of government is ordinarily required to be a member of Parliament. As a member of Parliament, he/she is required to submit a statement of his/her assets. We could also have the odd situation of someone being head of government without being a member of Parliament. The constitution permits an individual to be a minister without being a member of Parliament for a period of six months. So we could theoretically have a prime minister who is sworn in as prime minister and is not a member of Parliament. He/she is required to become a member within a period of six months. During this period he/she could resign. You would thus have had a head of government (albeit for a short period of time) who would not have been a member of Parliament and would not have been required to submit a declaration of his/her assets.

With regard to the head of state, there is no mandatory requirement to submit a statement of the assets. During the recently held presidential elections (2007) one of the campaign issues was the declaration of assets. The independent candidate backed by the opposition alliance unilateraly made a declaration of assets and challenged the rival to do the same. This assumed significance in the light of charge of fiscal irregularity being a campaign issue.

References: Representation of People's Act.1951, 1952

26b: In law, ministerial-level officials are required to file a regular asset disclosure form.

Score:

YES

Comments: Any minister must be a member of Parliament. All members of Parliament are required to make a declaration of their assets to the presiding officer of the House of which they are a member. Any refusal to do so could invite action linked to breach of privilege. Since 2004, any person who wants to contest an election to the state and national legislature is required to furnish an affidavit, which provides details of assets and liabilities. We could also have the odd situation of someone being a minister without being a member of Parliament. The constitution permits an individual to be a minister without being a member of Parliament for a period of six months. So we could theoretically have a minister who is sworn in and is not a member of Parliament. He/she is required to become a member within a period of six months. During this period he/she could resign. You would thus have had a minister (albeit for a short period of time) who would not have been a member of Parliament and would not have been required to submit a declaration of his/her assets.

References: Representation of People's Act 1951

26c: In law, there are regulations governing gifts and hospitality offered to members of the executive branch.

Score:

YES

Comments: There are rules in this regard. However, with the civil servants being the `masters of the rule` they often invent innovative means to circumvent the spirit of the provision and benefit from `extra legal` advantages and benefits that come their way.

References: Civil Service Rules.;

Ministerial Code of Conduct Rules.

Peer Review Comments: Yes. But the law is seldom followed.

Peer Review Comments: Reference is made to CVC, which has no jurisdiction over the ministers and the head of state or government.

26d: In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).

Score:

YES

Comments: There is an indepedent auditing of the assets disclosure forms submitted by the ministers. This is today also open to public scrutiny as the asset forms that ministers submit while contesting for elections to Parliament are a public document.

References: Central Vigilance Commission;

Lokayukta Acts.

Peer Review Comments: Reference is made to CVC, which has no jurisdiction over the ministers and the head of state or government.

26e: In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.

Score:

YES

Comments: There is no restriction on heads of government entering the private sector after completing their assignments.

References: Relevant laws of the Representation of People's Act

26f: In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.

Score:

100

Comments:

References: This is not applicable.

26g: In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.

Score:

100

Comments: There are frequent controversies relating to the violation of this norm. As mentioned earlier, given their mastery over the rule book, the public servants are able to discover ingeneous ways of circumventing the provisions of the law and still seek `extra legal` sources of gratification. This is clearly revealed by the fact that the Ombudsman, as the authority in many of the states of India, has found officers having assets not commensurate to their known sources of weatlh.

References: Newspaper reports: www.timesofindia.com; www.deccanherald.com

26h: In practice, executive branch asset disclosures (defined here as ministers and above) are audited.

Score:

100

Comments: As they are increasingly in the public domain, the assets disclosure are subjected to discussion and public scrutiny. However, there is a valid public perception that many of the asset disclosures do not reflect the true assets of elected representatives.

References: Media reports: www.timesofindia.com; www.deccanherald.com

Can citizens access the asset disclosure records of the heads of state and government?

27a: In law, citizens can access the asset disclosure records of the heads of state and government.

Score:

YES

Comments: The head of state is not required to make voluntary asset declarations. The head of government (prime minister) makes an asset declaration as a member of Parliament. This is accessible to citizens. Citizen watch groups and the media have also been publicizing the asset disclosure affidavits and this often gets wide publicity.

References: www.eci.gov.in;

www.parliamentofindia.nic.in

27b: In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.

Score:

100

References: Review of the new norms for candidates contesting elections

27c: In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.

Score:

100

References: Right to Information Act

Peer Review Comments: I don't know what a "reasonable cost" is.

In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

28: In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

Score:

100

Comments: It is beyond doubt that a clear distinction has emerged between the ruling party and the government/state. This is linked to two interdependent factors. First, the emergence of a competitive multi-party system in 1989, which replaced the one-party dominant system. Secondly, coalition governments have increasingly become the norm since the 1990s. This has resulted in a power-sharing arrangement and the inability of one party to dominate the system. Yet, it needs to be conceded that there are rare instances of the line of distinction between party and government having been obliterated.

References: www.lokniti.org

Peer Review Comments: Often, we find government resources are diverted for the use of the ruling party.