Chapter 28: MISCELLANEOUS

Executive Control

Control over the permanent is executive is by the political executive i.e. PM and his council of ministers and the Legislature i.e. Parliament.

Legislative control is more theoretical and ineffective even though our constitution has made the legislature supreme our executive and even judiciary as long as it remains within the framework of the constitution:

1. Parliament doesn't have time and expertise to monitor entire administration.
2. Parliaments financial control is hindered by technical nature of demand for grants.
3. Size of parliament is too large.
4. Executive is a part of legislature too and controls it.
5. Parliament makes a general law and detailed implementations and rules for it are made by bureaucracy in delegated legislation.
6. Ordinance making power further dilutes the parliaments power.
7. Committees mostly do post mortem work so does the CAG.
8. Guillotine of most demand for grants due to lack of time means that system isn't effective.

Executive Control: Control by the political executive over the permanent executive is constant, continuous, stimulative and directive.

1. Political direction: Policies formulated by the cabinet are implemented by the civil service and under the supervision of the executive.
2. Budget: Executive formulates budget and get its authorised by parliament.
3. Appointment and removal of personnel in the service is done by the political executive.
4. The political executive makes rules, procedures and regulations that have to be obeyed by the administration.
5. Staff agencies are the eyes and ears of the cabinet and ensure their instructions are followed.

Judicial control: All orders, laws, bylaws have to be as per the framework established by the constitution. The laws can be invalidated by judiciary if they are not. This is because judicial review is allowed by the constitution.

Constitution either has "Procedure established by law" which means the judiciary has supreme power over executive and legislature and can declare any act unconstitutional. The Indian constitution has "Due process of law" which means judiciary can declare laws as unconstitutional but the parliament can amend the constitution and override the judiciary.

The state can be sued by citizens for contracts but officials can't. Similarly for wrongful action by officials i.e. torts the state can be sued for non sovereign functions but not sovereign functions. State can't be held liable for actions done by servants in personal capacity.

Limitations:

1. Courts can't intervene in administrative process on their own.
2. Courts exercise post mortem control.
3. Parliament can exclude certain matters from purview of courts.
4. Administration has increased in complexity and judges can't understand technical actions. They also can't intervene in every matter.