Indian Polity Part 3 – Executive & Judiciary Control


Executive Control

  • It means the control exercised by the chief executive (political executive) over the functioning of bureaucracy. Such control in the USA is exercised by the president and his secretaries

  • In India and Britain by the cabinet and ministers (individually).

  • In the parliamentary government, the cabinet is collectively responsible to the parliament for its policies and actions.

  • Each minister is also individually responsible for the acts of omission and commission in his Ministry/department.

  • In other words, ministerial responsibility is the basic features of the parliamentary government.

  • For this very reason, the political executive (cabinet and ministers) exercise control over administration.

Political Direction (policy – making) 

  • In India, the cabinet formulates administrative policies and enjoys the power of direction, supervision, and coordination with regards to its implementation.

  • Through political direction, the minister controls the operations of administrative agencies working under his ministry/departments.

  • The departmental officials are directly and totally responsible to the minister.


Budgetary System

  • The executive controls the administration through the budgetary system. It formulates the budget, gets it enacted by the parliament.

  • It also allocates the necessary funds to the administrative agencies to meet their expenditure.

Appointment and Removal (Personnel Management and Control)

  • This is the most effective means of executive control over administration. The executive plays an important role in personnel management and control and enjoys the power of appointment and removal of top administrators.

Delegated Legislation 

  • The parliament makes laws in skeleton forms and authorises the executive to fill in minor details. Therefore, the executive makes rules, regulations, and bylaws

  • These have to be observed by the administrators in the execution of the law concerned.

Ordinances 

  • The constitution of India authorise the chief executive, that is, the President to promulgate ordinances during the recess (interval) of Parliament to meet situation demanding immediate action.

  • An ordinance is as authoritative and powerful as an act of Parliament and hence, governs the functioning of the administration.

Civil Service Code 

  • The executive has prescribed a civil service code to be observed and followed by the administrators in the exercise of their official powers.

  • It consists of a set of conduct rules which prevent the administrators from arbitrary use of their powers for their personal ends.

Staff Agencies 

  • The executive also exercises control over administration through staff agencies. The important staff agencies in India are the Department of administrative Reforms, the Cabinet Secretariat, and the Prime Minister’s Office.


JUDICIAL CONTROL

  • The controls exercised by the courts over the administrative acts are called judicial control. In other words, t means the power of the courts to keep the administrative acts within the limits of the law.

  • It also implies the right of an aggrieved citizen to challenge the wrongful acts of administrators in a court of law.

  • The primary objective of judicial control over administration is the protection of the rights and liberties of the citizen by ensuring the legality of administration.

Basis 

  • The judicial control over administration emanates from the concept of the rule of law which is a cardinal feature of British Constitution as well as the Indian Constitution.

Scope (Grounds)

  • The Judiciary can intervene in the administrative acts under the following circumstances

  • Lack of jurisdiction, that is, when the administrator acts without authority or beyond the scope of his authority or outside the geographical limits of his authority. It is technically called over feasance (excess authority).

  • The error of law, that is, when the administrator misinterprets the law and thus imposes upon the citizen, obligations which are not required by the content of the law. It is technically called misfeasance.

  • Error in fact finding, that is, when the administrator makes a mistake in the discovery of facts and acts on wrong presumptions.

  • Abuse of authority that is when the administrator uses his authority (or power or discretion) vindictively to harm some person. It is technically called malfeasance.

  • The error of procedure that is when the administrator does not follow the laid down procedure. The citizens who are affected by the above cases can seek the intervention of judiciary in the administrative acts.

  • The judiciary exercises control over administration through the following methods or techniques.

Judicial Review 

  • It is the power of courts to examine the legality and constitutionality of administrative acts.

  • On examination, if they are found to be violative of the constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid by the courts.

Statuary Appeal 

  • The parliamentary statue (i.e. law or act) may itself provide that in a specific type of administrative act, the aggrieved citizen will have the right of appeal to the courts.

Suits against Government 

  • In India, article 300 of the constitution governs the suitability of the state. It states that the Union Government and State Government can be sued, subject to the provisions of the law made by the Parliament and the state legislature respectively.

  • The state is suable in contracts, this means that the contractual liability of the Union Government and the state governments are same as same that of an individual under the ordinary law of contract.

  • However, in the case of torts the position is different (a tort is a wrongful action or injury for which a suit for damages lies) in this regard, a distinction is made between the sovereign and nonsovereign functions of the state.

  • The state, for the tortuous acts of its servants, can be sued only in case of its not –   sovereign functions but not in the case of its sovereign functions.

Suits against Public Officials 

  • In India, the president, and the state governors enjoy personal immunity from legal liability for their official acts.

  • During their term of office, they are immune from any criminal proceedings, even in respects of their personal acts.

  • They cannot be arrested or imprisoned. However, after giving two months notice civil proceedings can be instituted against them during their term of office in respect of their personal acts.

  • The ministers do not enjoy such immunities such immunities and hence, they can be sued in ordinary courts like common citizens for crimes as well as torts.

  • The civil servants are conferred personal immunity from legal liability for official contracts by article 299 of the constitution of India.

  • In other cases, the liability of the official is the same as any ordinary citizen.

  • Civil proceedings can be instituted against them for anything done in their official capacity after giving a two months notice.

  • As regards criminal liabilities, proceedings can be instituted against them for acts done in their official capacity with prior permission from the government.

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