Unit 5: Judicial Control over Administration

The judicial control over administration emanates from the concept of ‘rule of law’ A.V. Dicey’s the
British constitutional lawyer, in his famous book Introduction to the study of the Law of the Constitution
gave a classic exposition of this concept as follows. Rule of Law implies supremacy of law signifying the
predominance of law as opposed to prevalence of arbitrariness and any form of sovereign prerogative. It also
means equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or
non- official) to the ordinary law of the land.
By judicial control is meant the power of the courts to examine the Legality of the officials’ act and thereby
to safeguard the fundamental and other essential rights of the citizens. The underlying object is to ensure that
the authority does not abuse its power and the individual receives just and fair treatment. The role of
judiciary in protecting the citizens against the excess of officials has become all the more important with the
increase in the powers and discretion of the public officials in the modern welfare states.
SCOPE OF JUDICIAL CONTROL OVER ADMINISTRATION
The courts cannot interfere in the administrative activities of their own accord. They can intervene only
when they are invited to do so by any person who feels that his right have been abrogated or are likely to be
abrogated as a result of some action of the public official. Generally judicial intervention in administrative
activities is confined to the following cases:
a) Lack of Jurisdiction:
If any public official or administrative agency acts without or beyond his/her or its authority or
jurisdiction the courts can declare such acts as ultra vires. For instance, according to administrative rules and
procedures, in all organizations, the competent authority is identified for taking decisions and actions. If any
authority or person other than the competent authority takes action, the court's intervention can be sought
under the provisions of lack of jurisdiction.
b) Error of Law:
This category of cases arises when the official misconstrues the law and imposes upon the citizen
obligations, which are absent in law. The courts are empowered to set right such cases.
c) Error of Fact:
This category of cases is a result of error in discovering cases and actions taken on basis of wrong
assumptions. Any citizen adversely affected by error of judgment of public official can approach courts for
redressal.
d) Error of Procedure:
"Due procedure" is the basis of governmental action in a democracy. Responsible government means a
government by procedure. Procedure in administration ensures accountability, openness and justice. Public
officials must act in accordance with the procedure laid down by law in the performance of the
administrative activities. If the prescribed procedure is not followed the intervention of the courts can be
sought and legality of administrative actions can be questioned.
e) Abuse of authority:
If a public official exercises his/her authority vindictively to harm a person or use authority for personal
gain, court's intervention can be sought. The courts can intervene to correct the malfeasance of
administrative acts.
FORMS OF JUDICIAL CONTROL OVER ADMINISTRATION

Judicial Review
Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the
enforcement of fundamental rights. Article 32 (2) empowers the Supreme Court to issue directions or orders
or writs like Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. Article 226 confers
similar authority of issuing writs upon High Courts within their respective jurisdictions.
The judicial review implies the power of the courts to examine the legality and constitutionality of
administrative acts of officials and also the executive orders and the legislative enactments.
Apart from of judicial review, there are the extraordinary remedies in the nature of writs of
Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. A writ is an order of the court
enforcing compliance on the part of those against whom the writ is issued.
Habeas Corpus:
 Habeas Corpus literally means ‘to have the body of’. This writ is an order issued by the court against a
person who has detained another to produce the latter before the court and submit to its orders. If it is found
that the person in unlawfully or illegally detained, he will be set free.
Mandamus:
Mandamus literally means command. If a public official fails to perform an act which is a part of his
public duty and thereby violates the right of an individual, he /she will be commanded to perform the act
through this writ.
Prohibition:
It is a judicial writ issued by a superior court to an inferior court, preventing it from usurping
jurisdiction, which is not vested with it. While Mandamus commands activity, Prohibition commands
inactivity. This writ can be issued only against judicial or quasi judicial authorities to prevent exercise of
excess of jurisdiction by a subordinate court. As such, its significance as a method of judicial control over
administration is limited.
Certiorari:
While Prohibition is preventive; Certiorari is both preventive and curative. It is a writ issued by a
superior court for transferring the records of proceedings of a case from an inferior court or quasi judicial
authority to the superior court for determining the legality of the proceedings.
Quo Warranto:
Literally, Quo Waranto means ‘on what authority’. When any person acts in a ‘public office’ in which
he/she is not entitled to act, the court by the issue of this writ, will enquire into the legality of the claim of the
person to that office. If the said claim is not well founded, he or she will be ousted from that office.
Limitations of judicial control over administration
The effectiveness of judicial control over administration is limited by many factors. Some of these
limitations are:
1. Unmanageable volume of work:
The judiciary is not able to cope up with the volume of work. Thousands of cases have been pending in
Supreme Court, High Courts and Lower Courts for years together for want of time. There is an increase in
the cases of litigation without a commensurate expansion of judicial mechanism. This excessive delay in the
delivery of justice discourages many to approach the court.
2. Post-mortem nature of judicial control:
In most of the cases the judicial intervention comes only after enough damage is done by the
administrative actions. Even if the courts set right the wrong done, there is no mechanism to redress the
trouble the citizen has undergone in the process.
3. Expensive:
The judicial process is costly; as a result, only rich are able to seek the protection of courts from the
administrative abuses. The poor are, in most cases, the helpless victims of the administrative arbitrariness
and judicial inaction.
4. Cumbersome procedure:
Many legal procedures are beyond the comprehension of common man. The procedural tyranny
frightens many from approaching the courts. Even though the procedures have a positive dimension of
ensuring fair play, too much of it negates the whole process.

Modern states are welfare states which perform a large number of powers and functions. The civil servants
play a vital role in the modern social welfare states. The public servant today is not a mere docile executor of
public policy but is very largely its initiator and formulator. The bureaucracy has become the most powerful
organ of government with its vast discretionary powers. He supplies the expert knowledge to the
administration and being an expert he controls the administration. If such a powerful bureaucracy is left
uncontrolled, it may turn irresponsible and despotic and thereby endanger the rights and liberties of the
people. That is why every democratic government provides for a number of controls over administration.
The purpose of control is to make sure that the bureaucracy exercises its powers within the limits of laws and
established rules of procedures.8

Conventionally, the terms ‘Legislature’ and ‘Executive’ respectively, connote a body which legislates or
makes laws and a body which executes them. But law-making is not the only function of Parliament.
Similarly, the term ‘Executive’ is often used rather loosely to connote several different things. Under the
Constitution of India, the head of the Executive is the President. All executive power is vested in him and all
executive actions are taken in his name.1 He is, however, only Constitutional Head of State acting on the aid
and advice of the Council of Ministers and as such only the formal Executive. The real or the political
Executive is the Council of Ministers.2 Then, there is the permanent administration comprising the civil
services-the huge staff of administrators, experts, technocrats and others forming an administrative apparatus
which really helps the Ministers in the formulation and implementation of policies.

Executive’s Accountability to Parliament

The Executive and the Legislature is one that is most intimate and ideally does not admit any antagonism or
dichotomy. The two are not visualized as competing centres of power but as Inseparable partners or co-
partners in the business of Government. Parliament is a large body. It does not and cannot govern, The
Council of Ministers is the ‘grand executive committee‘of Parliament charged with the responsibility of
governance on behalf of the parent body. It is drawn from, and remains a part of the Parliament and is
responsible to the Lok Sabha. The relationship between the Executive and the Legislature may be said to be
that of a part to the whole and one of interdependence.6

While the Executive has almost unlimited right to initiate and formulate legislative and financial proposals
before Parliament and to give effect to approved policies, unfettered and unhindered by Parliament,
Parliament has the unlimited power to call for information, to discuss to scrutinize and to put the seal of
approval on the proposals made by the Executive. The Executive (i.e. the political Executive of the Council
of Ministers) remains responsible and the administration accountable to Parliament. It is the function of
Parliament to exercise political and financial control over the Executive and to ensure parliamentary
surveillance of administration. Executive responsibility and administrative accountability are two different
functional concepts.

The head of every Government Department is a Minister and Parliament exercises control over the
Department through the Minister. A Ministry has practically an autonomous existence of its own and
conducts its business in pursuance of statutory provisions, rules and regulations or according to a long-
standing practice. Parliamentary control over the Ministry rests in the fact that any action of the Ministry can
be called in question by any Member and the Minister responsible for the administration of that Ministry has
to defend the acts of his officials. It is a well-established constitutional principle that a Minister is
responsible to Parliament for all the acts of the Ministry and it is he who takes the blame, should Parliament
disapprove of any administrative act. There can, however, be a case where a civil servant acts either
deliberately or recklessly, outside the policy of his Minister or contrary to that policy. By doing so, he
relieves the Minister of the responsibility of protecting him. But the constitutional responsibility of the
Minister of Parliament remains and he has to satisfy Parliament that he is dealing with the matter
adequately.9

Every official is responsible to and under the control of his administrative superiors who are known as
Ministers in a Parliamentary Government. The minister is responsible for all that goes on within his
department. The doctrine of ministerial responsibility is a cardinal principle of the Parliamentary system. If a
mistake is made by a civil servant in a Department, The Minister in charge of the Department is held
responsible even if he knew nothing about it or he was not consulted by the official concerned before taking
the action.

Executive Control over Administration

The executive control on administration is constant and continuous. According to Prof Nigro, “Executive
controls are most important for their positive development and enforcement of standards and safeguards in
the actual operation of substantive departments”.10 Executive control gives positive and continuous
guidance to the administration. They keep the administration always alert. The Executive has the following
controls on the bureaucracy:4

Policy making: is carried out by the Cabinet and officials are responsible to it
Budgetary system: allocation of funds for different activities
Personnel management: through posting, transfer and recruitment process
Delegated legislation: Executive makes the detailed policy passed by the legislature
Civil service code: guides the conduct of the bureaucracy
Control through Policy-Making
The executive plays a very significant role in policymaking. The major task in front of the Chief Executive is
to frame various administrative policies. In a parliamentary system of government, the cabinet under the
leadership of the Prime Minister is in charge of policy making and overall coordination of the various
departments of the government. They lay down the policy, look to its implementation and issue directives to
the departmental officials. Similarly, in the Presidential system like the USA, the President as the Chief
Executive determines the general lines of administrative policy. He may even delegate some of the policy-
making power to the heads of various administrative departments, but the overall responsibility for policy-
making lies with him.

Control Through Budgetary System

The executive further exercises control over administration through the budgetary system. It is the executive
which is responsible for framing the budget, getting the demand for grants passed in the Parliament, and
allocation of required funds to each department for expenditure. The civil servants have to work within the
budgetary allocation and even a single paisa cannot be spent without the sanction from his superior authority.
For this, proper accounts are to be maintained which are subject to audit. Thus, through a proper budgetary
system, the administration remains under effective and continuous control of the executive.5

Control Through Recruitment, Transfer and Removal of Officials

This is another means of executive control over administration. In general, recruitment to civil services is
vested with the Public Service Commissions, which works as an independent constitutional body. However,
the rules of recruitment and appointments are laid down by the government. Required qualifications,
experience etc. for various posts are determined by the executive. It possesses power to exclude certain posts
from the purview of the Public Service Commissions. For instance, in India the executive has a free hand in
the appointment of certain key posts of civil service. The ministers are quite free to select their heads of
departments and their own secretaries. He may transfer the officials from one branch to another and make
changes in the allocation of their work. Similarly, the executive retains the power to remove the officials
appointed by it. Thus, through the power of appointment and removal of all these appointees the executive
exercises full control over the administration.

Control Through Delegated Legislation

In modern times the delegated legislation has become an important means of exercising executive control
over administration. Most of the laws passed by the legislature are in skeleton character and the executive is
empowered to fill in the details. Indeed, this is a great power in the hands of the executive which can be used
in controlling the administration by laying down rules and regulations in the execution of the laws
concerned. The scope of administrative law making is very wide in the modern social welfare states. These
administrative rules determine the authority of the different officials in the department.

Control Through Political Direction

The Minister has the power of direction, control and supervision. He has full authority to manage and direct
his Department. His writ runs throughout the sections and branches of the Department. He lays down the
policy and looks to its implementation. He issues directives to the departmental officials. No important
decision can be taken without bringing the matter to his notice.

He may concentrate the entire authority in his hands and reduce the Secretary to a cipher. He may call for
any and every file and issue the direction that no action on particular kinds of matters will be taken except by
him. He may go round the Department in order to supervise its working. He may issue orders to eradicate
red-tapism and increase efficiency. He may transfer the officials from one branch to another and make
changes in the allocation of work. In short, the officials work under his general direction, control and
supervision. In other words, the departmental officials are directly and wholly responsible to him. However,
it may be noted that in actual practice civil servants are not always dictated to by the ministers, but they also
lead and dictate. Being experts the civil servants exercise substantial influence on the Ministers in the policy-
formulation and its implementation.

Secondly, it may also be noted that the extent of control of a minister over his department rests on his
political position. If the minister enjoys the full confidence of the Prime Minister and has a strong base in the
party, he can deal effectively with bureaucracy. But if he is politically non- assertive his control over
administration may be weak. A strong-willed Prime Minister may reduce a minister to mere a non-entity.
Thus, a minister’s control over administration depends not only on the legal or constitutional system of the
country, but also upon his political strength.7

By Forming Administrative Organisations

The minister who is the political boss of the department. It is the executive which determines the number of
departments through which the administration is to be carried out. He may alter the existing department or
reconstruct the department for the advantage of administration. In this way the executive exerts his influence
and control over the administration organisation.

Control Through Issuing Ordinance

The power of issuing ordinance is another means of executive control over administration. The ordinances
are issued by the Chief Executive to meet an emergent situation which may arise when the legislature is not
in session. However, they remain in operation for a temporary period and cease to be in force unless
approved by the legislature as soon as it meets. In India and some other countries the executive has the
power to issue an ordinance which has the same sanction of law as an act passed by the Parliament.

Importance of Executive Control Over Administration

The executive control over administration is regarded as essential to keep the administration on track. The
importance of executive control especially in a Parliamentary or Presidential form of government can be
discussed under the following points:

Executive control over administration is direct, effective and continuous in nature. The executive control not
only keeps the administration under its control but also provides continuous direction and proper guidance to
the operation of administration.
The executive control over administration is a vital necessity to check the uncontrolled activities of civil
servants. Effective executive control over administration reduces the chances of corruption, evils and
maladministration of the civil servants.
The doctrine of ministerial responsibility is the cardinal principle in a parliamentary system of government.
As political heads of the department, the minister is held responsible for a mistake done by a civil servant in
his department. Even the ministers are compelled to resign for the mistake made by officials. Therefore,
effective control over administration is needed to run the administration efficiently.
The main need of executive control over administration lies in the fact that the growing activities of modern
states, the powers of the civil servants are growing everywhere, hence the ministers find it necessary to keep
a check on their excessive powers.

Prof. Negro stated that the executive controls over administration are “most important for their positive
development and enforcement of standards and safeguards in the actual operation of substantive
departments”.3
The Chief Executive formulates policies and their implementation entirely depends on the civil servants.
Very often the executive find it difficult to implement programmes owing to the vested interest of
bureaucrats. For example, during President Roosevelt’s term in the USA, the civil servants stood as an
obstacle in the speedy execution of the New Deal Legislation. Likewise, in the UK the civil servants proved
to be an impediment to the socialist programmes of the Labour Government in the wake of World War-II.
All these conservative nature of the bureaucrats also prove to have a proper control on the administration by
the executive.
Thus, the above discussion reveals the significance of executive control over administration. However,
effectiveness of executive control depends on the minister-civil servant relationship. It is a well-known fact
that the ministers are laymen and have to depend on the administrative abilities of his secretaries who are
specialized in knowledge and expert in these fields. For a harmonious functioning of administrative
departments, an effective coordination between political executive and civil servants as permanent executive
is a must. The executive formulates the policies and takes decisions which are implemented by the civil
servants. Both ministers and civil

Types of Accountability
There are two types of accountability mechanism that make organizations to continue to achieve goals.
These are discussed below:
1. Internal Control: is exercised either by superior over the subordinates within the chain of hierarchy or by
other parallel agencies in the executive branch of government. It consists of directing, regulating,
supervising, advising, inspecting and evaluating. It should be continuously done; without being felt. This
mechanism of accountability has positive results also.
2. External control, is fitted outside the administrative machinery and works within the general constitutional
framework of the system. It is exercised by the external bodies such as legislature and judiciary.
Internal Control: In internal control mechanisms follows methods are used:
i) Administrative process:- In a parliamentary system, cabinet stands at the apex of the executive. Prime
minister directs the ministers; who are in-charge of their respective department and are responsible for the
efficient working to the cabinet and prime minister. The whole working of the departments are reviewed by
the Prime Minister and his Cabinet
.ii) Hierarchical order:- Every administrative department is arranged on scalar pattern and executives are
organized in hierarchical order. The executives are linked with superior-subordinate-relationship with clear
authority and responsibility. They are accountable to their respective superiors for their actions and dealings.
Thus hierarchy itself a powerful instrument for monitoring subordinates behavior and for enforcing
accountability.
iii) Annual confidential Reports:-The superior officers prepare annual confidential reports(ACRs) of their
subordinates every year. The work of whole year of each public servant is assessed
.iv) Budgetary control:- A budget is not only a complete policy statement of the total activities of the
government but it also reflects the aspiration of the people. The Ministry of Finance prepares budget, and
operations of the budgetary sanctions and appropriations.
v) Administrative leadership:- It is another means of internal control. Leadership motivates, and inspires the
employees for efficiency. Thus the morale and motivation of employees depends upon the leadership. The
effective leader set examples of high standards of integrity and performance for his followers. He inspires
them for work and instils in them a pride in work. A good leader is objective oriented and always tries his
subordinates to achieve that objective.