What Does The Constitution Envisage?

The Indian Constitution is a comprehensive document that lays down the framework for a functional democracy in India. Overall, the Indian Constitution envisages a functional democracy by ensuring that every citizen has a say in the governance of the country, there is no concentration of power in any single authority, and the government is accountable to the people.

A transparent and accountable administration is essential for the effective functioning of a democracy. A transparent and accountable administration also promotes trust between the government and the citizens, which is necessary for a healthy and functional democracy. In the absence of transparency and accountability, functional democracy remains a distant dream or an impossibility, as citizens lose faith in the government’s ability to represent their interests and make decisions that are in the public’s best interest. Therefore, it is essential to ensure that the government remains transparent and accountable to the citizens it serves.

The Constitution is a generic document, and the rights it confers on citizens depend on how effectively it is implemented by the executive and the rules framed for a transparent administration. Unfortunately, what we see is a huge gap between the ideals enshrined in the Constitution and their implementation in practice.

Administrative Silence – The Demon Devouring Democratic Rights

The impunity with which the administration remains silent on citizens’ written representations is the most serious concern and indicates a lack of accountability on the part of the administration. The custom is rampant and is nothing less than a demon to destroy and annihilate the democratic rights of the citizens and seems to mock the Constitutional dream of a functional democracy. 

When citizens make written representations to the administration, they have a reasonable expectation that their concerns will be addressed and that they will receive a response without delay. However, when the administration remains silent, citizens are left feeling powerless and frustrated.

Absence Of Mechanism For Accountability

The power to remain silent on written representations of the public by public authorities in India is a gross violation of the fundamental rights enshrined in Articles 14, 19 and 21 of the Indian Constitution, which guarantee the right to equality, freedom of speech and expression, and the right to life and personal liberty.

This abuse of power is seen as rampant in the country and remains unchecked, leading to unaccountability at all levels of administration. This design facilitates corruption and human rights violations and is not in line with democratic principles. It is the syndrome that is affecting the health of the administration and destroying citizens’ right to an accountable administration.

The absence of a mechanism to hold the administration accountable for its failure to respond to citizens’ representations only exacerbates the problem. Without such a functional mechanism, the administration is free to ignore citizens’ concerns without any consequence. This has led to a culture of impunity, where the administration feels that it is not answerable to citizens and can act with impunity.

Addressing The Issue Of Administrative Silence

If administrators have the discretion to remain silent, it is impossible to hold them accountable and ensure that they are responsive to citizens’ needs and concerns. To address this issue, here are some suggestions:

Create a culture of transparency: One way to discourage administrators from remaining silent is to create a culture of transparency. This means encouraging openness and accountability at all levels of the organization and making it clear that transparency is a core value. This can be achieved through training, communication, and other initiatives that promote transparency.

Establish clear guidelines for communication: Another way to address the issue of silence is to establish clear guidelines for communication between administrators and citizens. This can include requirements for responding to written representations or inquiries within a specified timeframe, as well as guidelines for how to handle complaints or grievances.

Implement a feedback mechanism: To ensure that citizens have a voice in the administrative process and that administrators are responsive to their concerns, it may be helpful to implement a feedback mechanism. This can take the form of public consultations, surveys, or other means of gathering input from citizens.

Hold administrators accountable: If administrators are not responsive to citizens’ needs and concerns, it may be necessary to hold them accountable. This can be done through performance evaluations, disciplinary actions, or other measures that ensure that administrators are held responsible for their actions.

Provide training and support: Finally, it is important to provide administrators with the training and support they need to communicate effectively and respond to citizens’ needs. This can include training on effective communication techniques, conflict resolution, and other skills that are essential for working in a public-facing role.

All this sounds perfect but the question remains how can all this be achieved? 

Sheer Lack of Political Will

The principal reason for this gap between what the Constitution envisages and the quality of administration delivered is primarily due to the sheer lack of political will to realise the provisions of the Constitution. Many of the provisions of the Constitution require the executive to take proactive steps to ensure that the rights of citizens are protected. However, the executive has failed to do so due to a lack of political will or vested interests. 

Moreover, vague directions in the form of executive instructions framed for transparent administration are often not implemented effectively. These rules and regulations exist to ensure transparency and accountability, they are often not enforced due to no deterrence for default as they are mere executive instructions.

So what is the solution? One of the solutions can be legislating a comprehensive Administrative Procedure Code to streamline the entire administrative process at all levels from the Constitutional authorities to the smallest administrative unit or public authority or officer.

An Administrative Procedure Code – The Need Of The Hour

Only an Administrative Procedure Code (APC) can play a vital role in filling the gap between the ideals enshrined in the Constitution and their implementation in practice. An APC will be a set of rules and procedures that govern the functioning of the government and ensure transparency and accountability in administrative processes.

An APC can help to ensure that the government functions in a transparent and accountable manner by providing clear rules, guidelines, and procedures for the exercise of administrative powers. It can also help to ensure that administrative decisions are made in a fair and impartial manner and that citizens have a right to be heard and to receive a reasoned decision.

Moreover, an APC can help to standardize and normalise, administrative procedures across different government departments, making it easier for citizens to navigate the administrative system. This can help to reduce corruption and improve the efficiency of the administrative system, leading to greater citizen satisfaction and trust in the government.

Legislating an APC requires political will and a commitment to upholding the principles enshrined in the Constitution. Therefore, it is essential to ensure that the government remains accountable and transparent to the citizens it serves. An administrative procedure code will lay the foundation for an accountable administration.

An APC will be a set of rules and procedures that regulates the functioning of the government and ensure transparency and accountability in administrative processes. It will provide clear guidelines and procedures for the exercise of administrative powers, which can help to ensure that decisions are made in a fair and impartial manner. Moreover, it can ensure that citizens have a right to be heard and to receive a reasoned decision, which promotes transparency and accountability.

The distinction between administrative and quasi-judicial functions is a complex and fact-specific one. The line between the two is often blurred, and the determination of whether a particular function is administrative or quasi-judicial will depend on the facts and circumstances of each case. An administrative procedure code would define the lines with a mechanism for a tribunal to settle disputes.

General Guidelines For An Administrative Procedure Code:

Clear and consistent procedures: The administrative procedure code should outline clear and consistent procedures for carrying out administrative tasks. This will help ensure that the administration is accountable and can be held responsible for its actions.

Timeliness: Time is the most crucial aspect of good administration. The APC will lay down reasonable timeframes for completing administrative tasks and ensure that deadlines are met.

Citizen engagement: The code should include provisions for citizen engagement and participation in the administrative process. This may include opportunities for public comment, consultation, or other forms of input.

Transparency: The procedure code should promote transparency in the administrative process. This may include requirements for public notice and access to information, as well as rules around the use of confidential information.

Accountability: The code should establish mechanisms for holding the administration accountable, including procedures for handling complaints and grievances.

Provision for a Tribunal: To settle disputes, grievances and complaints against the public authorities.

Provision For A Tribunal

There are a plethora of executive instructions from the Government and directions/guidelines put forth by the Constitutional Courts for transparent administration but are hardly implemented. The principal reason being no mechanism for holding the defaulters accountable. Absence of such a mechanism gives the errant offices a long rope. These executive instructions are a mere eye wash. 

For example in Maharashtra, even legislation like delay in the discharge of duties or the Lokayukta is completely toothless with no effective mechanism to hold the administrators, accountable. Again, a mere eye wash.  Therefore, the code will provide for a Tribunal for grievance redressal of the citizens equipped with the powers of the High Court. The necessary attributes of the Tribunal would be as follows.

Composition Of The Tribunal: The tribunal should be composed of qualified and experienced individuals, such as retired judges, legal experts, or other professionals with relevant expertise. The tribunal should be independent and impartial, and its members should be appointed through a transparent process.

Jurisdiction Of The Tribunal: The tribunal will have jurisdiction over administrative disputes, complaints, and grievances. This could include matters related to service delivery, public interest, human rights violations, and violations of fundamental rights arising out of default by the public authorities. The tribunal should have the power to hear cases and make binding decisions and the power to execute its orders.

Powers Of The Tribunal: To ensure that the tribunal is effective in addressing grievances/complaints, it should have the powers of the High Court. This could include the power to summon witnesses, order the production of documents, issue directions to the administration, and other powers under the civil procedure code for the delivery of justice. The tribunal will have the power to award compensation or other remedies to individuals who have suffered harm as a result of administrative actions.

Access To The Tribunal: The tribunal should be accessible to all citizens, regardless of their socio-economic status or location. This could be achieved through the establishment of regional or local branches of the tribunal, as well as through the use of online or other digital platforms to facilitate access.

Transparency And Accountability: To ensure that the tribunal is transparent and accountable, its decisions should be subject to review by higher courts. The tribunal should also be required to publish its decisions and make them available to the public. Finally, the tribunal should be subject to regular evaluation and oversight to ensure that it is functioning effectively and efficiently.

Undoubtedly, legislation providing for an administrative procedure code should have been done immediately after the adoption of the Constitution. However, now it is high time and a desperate situation, where the general public is losing all faith in the democratic processes due to rampant corruption showing its ugly face ubiquitously. Only suitable legislation in this area can improve transparency and accountability of the Government and help to build public trust in government institutions and realise the Constitutional dream of a functional democracy.