accountability and control

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Chronicle IAS Academy [3]

ACCOUNTABILITY

AND CONTROL

CHRONICLEIAS ACADEMYA CIVIL SERVICES CHRONICLE INITIATIVE

INTRODUCTION

The concept of administrative accountabilityimplies that administrators are obliged to give asatisfactory account of what they do and in whatmanner they exercise the powers conferred onthem. Its main aim is to check arbitrariness inadministrative actions and improveadministrative efficiency and effectiveness.

Accountability is one of the three important

pillars of a trust society, the other two beingparticipation and transparency. Each of thesethree pillars is the reason of other and alsofollows each other. Further, normally each ofthese pillars exists alongwith each other. Thusdiscussion of one necessarily follows referencesto others.

The foundation of this concept however isthe democracy vs bureaucracy debate. Thisdebate unfolds the argument that in ademocracy citizens are at the central point ofgovernance - which exists to safeguard the rightsand liberties of the citizens however governanceoperates through bureaucracy which is ainstitution built on the premise that efficient andeffective bureaucracy mandatorily needs someoperational autonomy which creates adifferential power structure and in turn erodescitizens freedom upto a certain extent within asociety. This debate further extends to the secrecyvs openness argument. The openness argument

believes that transparency in administration is

the key to good governance while the secrecyargument believes that excessive transparencymakes the system so much prone to scrutiny thateffectiveness and working itself becomes difficultand in some cases even impossible. Thus if weare for democracy and openness our trulydemocratic society should have no place for aninstitution like bureaucracy-which creates powerdifferences and defeats the very reason for whichit exists in a democracy.

But bureaucracy is the instrument ofgovernance which if jettisoned would turn themodern society into a Stateless society, whichcould give birth to problems of even greater

magnitude and character in the absence of anyregulation enforcing structure, especially at thecurrent levels of human evolution. Thus

bureaucracy should necessarily exist and is henceaccepted by the modern societies as necessaryevil. But this evil cannot be let loose to exercisearbitrary discretion, it has to be put under checksand balances so that its negative tendencies arecurtailed and beneficence is unleashed. Thus is

born the concept of accountability and controlalongwith its core challenge of balancing

bureaucratic autonomy with citizens rights andliberties.

Thus the primary issue in accountability andcontrol is to how to balance administrativeaccountability with administrative discretion orhow to use the instruments of accountability sothat rights and liberties of the citizens aresafeguarded but at the same time powers inoperational autonomy stemming out ofadministrative discretion is also not curbed.

Another rationale of administrativeaccountability lies in the role which theadministrators play in policy making and that isthe informational dimension of accountability.The bureaucracy is the institution whichimplements the policy of the government on thefield. Therefore the bureaucrats are the bestpeople to provide onsite inputs and draw theattention of the policy makers towards thepractical problems confronting regulatory ordevelopmental functions. Moreover, the citizens

have confidence in the administrative structureof the government which makes them frank inventing their problems to them. Thus inordinatedelays are avoided which would have otherwisetaken place if the citizens had to wait for thepolitical representatives everytime to air theirproblems. The mechanism of administrativeaccountability thus helps to play a vital role inaddressing the issues within this phenomenon.

Thus another important issue which is anintegral part of accountability and control is how

to make the bureaucracy sufficiently responsiveand articulate towards the problems of thecitizens. How to improve the mindset and the


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functioning of bureaucracy on the ground so thatthe overall implementation becomes moreeffective?

Administrative accountability is enforced byvarious types of controls. The public servants aremade accountable to different agencies which

exercise control over them. The purpose ofcontrol draws out from the rationale ofaccountability i.e., exercise of their powers anddiscretion in accordance with laws, formal rulesand regulations, and established procedures andconventions.

Broadly speaking there are two types ofadministrative control viz. internal control i.e.control exercised on the administration fromwithin the administrative machinery andexternal control i.e., control exercised on theadministration from beyond the administration.There are various methods of exercising controlfrom within the administrative machinery viz.

1. Administrative hierarchy.

2. Administrative leadership.

3. Professional standards.

4. Efficiency surveys.

5. Annual confidential report.

6. Enquiries and investigations.

7.Personnel norms.

M et hods of exercisi ng ext ernal contr ol over

administrat ion are:

1. Executive control.

2. Legislative control.

3. Judicial control.

4. Civil society groups or citizens.

EXECUTIVE CONTROL OVER

ADMINISTRATION

Executive control in the external sense refersto the control exercised by the political executiveover the permanent executive or bureaucracy.There are various ways in which political controlover bureaucracy manifests itself viz. policymaking, budgetary system, personnelmanagement, delegated legislation, ordinances,civil service codes, etc. Some are discussed below:

Po l i t i c a l D i r ect i o n (Po l i c y -mak i ng) : In

India, the Cabinet formulates administrativepolicies and enjoys the power of direction,supervision and coordination with regard to itsimplementation. The minister, who is in-charge

of one or more departments, lays down thedepartmental policy and directs, supervises andcoordinates its implementation by theadministrators. Thus, though political direction,the Minister controls the operations ofadministrative agencies working under hisministry/department(s). The departmentalofficials are directly and totally responsible to theminister. In the USA, the same function isperformed by the President and his secretaries.

Budgetary System:The executive controls theadministration through budgetary system. Itformulates the budget, gets it enacted by theParliament, and allocates the necessary funds tothe administrative agencies to meet theirexpenditure. In all such activities, the Ministryof Finance (which is the central financial agency

of the Government of India) plays an importantrole. It exercises financial control overadministration in the following ways.

(i) Approval of policies and programmesin principle.

(ii) Acceptance of provision in the budgetestimates.

(iii) Sanctioning expenditure.(iv) Providing financial advice trough the

Integrated Financial Advisor.(v) Reappropriation of grants (i.e., transfer

for funds from one sub-head to another).(vi) Internal audit system.

(vii) Prescribing a financial code to befollowed by the spending authorities.

A ppo i n t ment and Remov a l (Personnel

M anagement and Contr o l ) : This is the mosteffective means of executive control overadministration. The executive plays as importantrole in personnel management and control andenjoys the power of appointment and removalof top administrators. In this function, the

executive (in India) is assisted by the Departmentof Personnel and Training, the Ministry ofFinance, and the UPSC. The Department ofPersonnel and Training is the central personnelagency in India and plays a major role inpersonnel management and control. At thehighest level, the ministers play an important rolein the selection and appointment of secretariesand heads of departments. Thus they (i.e.,ministers) exercise full control over theadministration of departments under theircharge through such appointees.

In the USA also, though the President has toseek the approval of Senate for effectingappointments to top posts, he has the exclusive


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power of removing them from office. The Officeof Personnel Management (OPM) in the USplays an important role in personnelmanagement and control.

Del egated Legi sl at i on: Also known as theexecutive legislation, it is an important tool in

the hands of the executive to exercise control overadministration. The Parliament makes laws inskeleton forms and authorizes the executive tofill in minor detail. Therefore, the executivemakes rules, regulations and by-laws whichhave to be observed by the administrators inexecution of the law concerned.

Ord inances : The Constitution of Indiaauthorizes the chief executive, that is, thePresident to promulgate ordinances during therecess (interval) of Parliament to meet situationdemanding immediate action. An ordinance isas authoritative and powerful as an act ofParliament and hence, governs the functioningof administration.

Ci v i l Serv i ce Code: The executive hasprescribed a civil service code to be observed andfollowed by the administrators in the exercise oftheir official powers. It consists of a set of conductrules which prevent the administrators frommisutilising their powers for personal ends. The

important among such rules in India are asfollows.

(a) All-India Services (Conduct) Rules, 1954

(b) Central Civil Services (Conduct) Rules,1955

(c) Railway Services (Conduct) Rules, 1956

The deal with various thing like loyalty tothe state, obeying the official ordes of thesuperiors, political activities of civil servants,financial transactions of civil servants, maritalrestrictions, and others.

St aff Agencies:The executive also exercisecontrol over administration through staffagencies. The important staff agencies in Indiaare the Department of Administrative Reforms,the Planning Commission, the CabinetSecretariat and the Prime Ministers Office.Mooney said that a staff agency is an expansionof the personality of the executive. It means moreeyes, more eyes, more ears and more hands toaid him in forming and carrying out his plans.

Thus, the staff agencies exercise influence andindirect control over the administrative agenciesand play an important role in coordinating theirpolicies and programmes.

Appea l t o Pub l i c Op i n i on : Theadministrative system, (i.e., civil services or

bureaucracy) whether in the USA or the UK orIndia, is status quo oriented and hence resistschange. It does not receive new policies, plans,programmes and projects formulated by theexecutive with positive mindedness. In fact, thevarious organs of the administrative machinery,in the words of pfiffner and Presthus, seek tostrengthen their position vis--vis other agencies,and the executive, by alliances with legislatureand pressure groups, as well as by calculatedsupport building campaigns directed at thegeneral public. They develop vested interests notonly in programme areas, but equally inestablished ways of doing things, which enhancethe self-consciousness and strategic position ofthe bureaucracy. Due to this, the bureaucracy

resists new programmes and methods as theythreaten its (bureaucracys) strong position.Under such circumstances, the executive appealsto the public opinion.

However the major issue in this sectionremains the complexity of minister-civil servantrelationship wherein we have to examine as towhat is the environment in which the two ofthem function and what are the guiding factorswhich shape the relationship and what should

be the ideal course in which such relationshipshould move. The issue culminates into theargument between Neutral bureaucracy vsCommitted bureaucracy or politicized

bureaucracy.

Herein we discuss the core issue ofaccountability and control (i.e., how to ensurethat the bureaucracy operates with legality,efficiency and effectiveness while its operationalautonomy and morale is not curbed excessivelyunder the influence of controls) in the light of

political influences which are an essential featureof administrative bureaucracy. The politicalenvironment under which the bureaucracyfunctions both helps and curtails its freedom.Political control of bureaucracy makes it immuneto direct public scrutiny as the bureaucracyfunctions under ministerial responsibility andremains anonymous behind the politicalexecutive. However this very anonymitysometimes comes at the expense of politicalneutrality which frequently comes under

pressure and the bureaucrats start serving thepolitical party in power rather than theconstitution for which they had sworned.Compromise on political neutrality brings in the


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casualty of another cherished bureaucratic valueof impartiality. Thus the trinity of politicalneutrality, anonymity and impartiality whichmakes bureaucracy the useful machine it is gets

jeopardized under the influence of politicalinfluence. So whether bureaucracy should bemade a totally autonomous institution free fromany political control? The answer is no, becausesuch an unanswerable disposition wouldunleash the evil of absolutism sleeping withinthe bureaucracy.

Thus another issue within the complicatedissue of minister-civil servant relationship is asto how to preserve the proverbial neutrality,anonymity and impartiality of the bureaucracywhile operating under the influence of thepolitical executive or how to keep the

bureaucracy efficient and effective despite thewavering political environment in which itfunctions.

The first step to examine the minister-civilservant relationship is to identify the factorswhich determine the nature of relationship

between minister and civil servant.

The conventional view of publicadministration is based upon the dichotomy ofpolitics and administration i.e., administration

and politics should be kept separate. Politics orpolicy making is the proper activity of thelegislative bodies and administration is theproper activity of administrators who carry outpolicies. It is opposed to any political role of thecivil servants. It visualizes the relationship

between the administrator and the politician interms of a neat division of labor the politicianformulates the policy and the administratorexecutes it. The bureaucrat acts as pure advisorto his political master, presents facts of the case,suggests lines of action and implications ofalternative policies. It is the prerogative of thepolitical master to decide the policy. The

bureaucrat is expected to implement the policyfaithfully, whatever the decision. He is to beanonymous and neutral in the discharge of hisduty. He is expected to render impartial advicewithout fear or favor. The doctrine of neutralityand anonymity has been one of the fundamentaltenets of the Weberian bureaucracy.

The planners in India too subscribed to the

Weberian ideal of neutral civil service. Animpersonal, strictly rule-bound, neutralbureaucracy was expected not only to providethe necessary administrative objectivity but also

enhance the democratic principle of equality andprovide protection from arbitrary rule byadhering to the concept of neutrality. Thetraditional concept of neutrality, however, has

been challenged on many grounds. The earlierconcept of separation of politics andadministration in watertight compartments isconsidered no more valid. The role of the CivilService has been changing from being a mereagent of the political executive to that ofcollaboration with it. The involvement of

bureaucracy in political arena is now widelyprevalent.

This breakdow n of the t heory of neutr ali t y has

come about because of a number of reasons:

1. The processes of policy making are no

longer confined to the political executive.The truth is that the bureaucrats play animportant role in policy formulation,perceived to be the exclusive preserve ofelected politicians. This has happened

because the statutes passed by theparliament are not clear enough. Thelegislative behavior follows no consistentpattern. Whereas, some measures are toodetailed, some only identify the problem. Theminister is rarely an expert in the work of

his department or the techniques of publicadministration. He merely has general ideasin line with the political ideology of hisparty, but he often is not sure as to what isthe best solution to a particular problem. Heis therefore, forced to rely on his permanentstaff for facts and advice. In effect then, it isthe Administrator who has the major rolein framing the policy.

2. The decline of neutrality can be attributedto the demands and pressures of coalition

politics. In coalition governments, ministersare busy in the power game andmaneuvering for their survival, and haveneither time nor inclination to guide, directand control their department or

bureaucracy. Also at times, the legislativeprocess is so stormy and full of diverseviews that a statute passed incorporates anumber of contradictory policy guidelines.The necessity of reaching a compromisesolution to hold the coalition together leads

the legislators to use vague language andthe administrator has to use his own

judgment to interpret the policy. Therefore,


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bureaucracy has clearly made inroads inpolicy making and despite the regulationsgoverning the civil servants they have beenpoliticized considerably.

3. According to some political commentators,the classical theory of civil service neutrality

presupposes agreement on principlesfundamental to democracy. In other words,neutral, value-free bureaucracy is possibleonly in a society where consensus existson values; but in transitional societies likeIndia, where dissent and conflict exist; it istoo much to expect anyone to be neutral.

4. Especially for a developing country likeIndia where speedy socio-economicdevelopment has to be steadily pushedthrough, the nature and character of

bureaucracy assumes special significance.The involvement of civil servants innumerous decisions be it the location of asteel plant or a school building in a village,makes them partners in development alongwith the politicians. Their value preferencesget inextricably mixed up with technicaladvice. In the context of large-scale welfareprograms therefore, absolute neutrality isnot practically possible.

Thus the idea of committed bureaucracy

comes into picture which stands for a certaincommitment to the goals and objectives of thestate. Moreover, neutrality cannot be allowed todegenerate into disinterestedness. The successfulcarrying out of developmental tasks requires onthe part of administrators not only qualities ofinitiative and leadership but also a sense ofemotional integration with the policies andprograms and identification with the interestsof the common man. Thus the idea of

bureaucracy as a neutral instrument in the

conduct of public affairs stood refuted as theconcept of politics-administration dichotomy.

The concept of committed bureaucracy washowever much contested in the political andadministrative circles. It was alleged that it woulddegenerate into what is called as politicized

bureaucracy i.e., it would destroy the characterof the neutral bureaucracy and would create a

breed of pliable civil servants who would alwayssay Yes Minister and would be ready to crawlwhen asked to bend by their political masters.

In practice however those fears of the critics havecome to life, commitment has indeed assumedthe perverted form of politicization and

sycophancy. Very often it is seen thatbureaucracy simply acts according to the dictatesof the political executive without anyindependent examination of issues.

This trend of excessive politicization ofbureaucracy can be attr ibuted to the ever-

growing political interference in the affairs ofadministration. Political interference andcommitted/neutral administration cannot co-exist. While the administrators do not perceivetheir role in policy making as subservient to thepolitical leaders because of their knowledge andexpertise, yet they have to conform to theprerequisites of representative politics. Thepolitical leaders claim to be the truerepresentatives of the people and thus claim toknow the values of the people. Because of their

superior position they succeed in dictating theterms to the bureaucrats. The bureaucrats whoare not obliging enough soon find themselves introuble. The political masters have many meansof coercionboth overt and covert. Politicalinterference in all matters including those wherethe statutory power is vested in the civil servantsis a constant phenomenon. There are numerousinstances of use of transfers, promotion,supersession and compulsory retirement fromservice by elected politicians as tools to silencethe voice of dissent and expression of differenceof opinion.

Moreover, politicization works the other wayround also. Many administrators use politicalinfluence or forge alliance with the politician to

brighten their own career prospects. They takeadvantage of the amateur politician; exploit hisweakness particularly in times of a fluid politicalsituation and turn out to be autonomous andirresponsible. This is an equally grim scenario.

What emerges out of the analysis is thatwhether there is collision or collusion betweenthe political executive and the bureaucracy, in

both cases it leads to organizational imbalanceand ultimately the governance suffers.

Commissions Vi ew s

Expressing concern over the deterioratingadministrative standards, the governmentappointed the Administrative ReformsCommission (ARC) in 1966 to conduct a

comprehensive study of the administrativesystem and suggest remedies. The two mostimportant areas touched upon by the ARC in itsreports were: (a) Minister Civil Servants


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relationship, wherein the ARC emphasized theneed for the de-politicization of the services, and(b) the creation of a climate and culture ofadministration that would help assert thegrowth of healthy personal relationship betweenCivil Servants and Minister. The ARC tookcognizance of the fact that proper relationship

between the political executive and bureaucracyis a matter of highest importance to theadministrative performance of government. Itobserved that the existing pattern of relationshipwas different from what was envisaged. Moreand more cases of deviation were coming tonotice. For instance the extent of bureaucraticinvolvement in politics was exceptionally high,there was frequent use of transfers and postingsto manipulate bureaucracy, there was unholynexus between politicians and bureaucracy, etc.

which was taking its toll on administrativeefficiency.

Therefore, corrective measures were requiredto restore the health of the system.

The ARC stressed on the urgency to preventbureaucracys aggressive role in politics and alsoon the need to check arbitrary interference ofpoliticians in administrative affairs. It believedthat both Minister and Civil Servants mustappreciate rather than belittle each others work

and attempt maximum accommodation of oneanothers views. On the part of the politicalexecutive there should be, in the words of theARC,

A. Proper understanding of the administrativefunctions and recognition of itsprofessional nature.

B. Little interference as possible in servicematters, e.g. postings, transfers, promotions,etc.

C. No requests for departures from declaredand approved policies to suit individualcases.

Similarly, on the part of the civil service itasserts:

A. There must be a sincere and honest attemptto find out what the political head wantsand make the necessary adjustment inpolicies and procedures to suit his wishes.

B. Readiness to fall in line with his politicalchief in all matters, unless strong groundsindicate a different course.

In other words, it means an emotional andmental acceptance by the bureaucracy of the

ideology of the government policy to be executedby it.

Despite the valuable recommendations madeby the ARC to streamline the relationshipbetween the minister and the civil servants,nothing much seems to have changed because

of political and administrative apathy. Makingthe matters worse is the growth in recent timesof a nexus between the politicians, criminals,police and the civil servants rooted in theconsiderations of mutuality of benefit. Anincreasing use of money and muscle power bypolitical parties in winning elections is ofcommon knowledge. Since the muscle power ismostly provided by the mafia and the criminals,a close nexus prevails between the politiciansand the criminals resulting in criminalization

of politics. This has been the main conclusionof the Vohra Committee Report of 1993submitted by the then Home Secretary, Mr. N.N.Vohra which was set up to look into thecriminalization of politics. The report observedthat the mafia and the criminals enjoyed thepatronage of politicians and the protection ofgovernment functionaries. It pointed out howthe nexus was virtually running a parallelgovernment, pushing the state apparatus intoirrelevance. Here the two elites political and

administrative, join hands and become not onlythick friends but also grand thieves. Such a nexusis detrimental to public interest. Therefore, it wasfelt that corrective steps must be taken to ensurethat this evil nexus is curbed.

With this objective in mind, the PrimeMinister inaugurated a Conference of ChiefSecretaries in November 1996 on An Agendafor an Effective and Responsive Administration.

The Conference emphasized the need for

bringing about transformation in public servicesso as to make them more effective, clean,accountable and citizen friendly. The Conferencealso highlighted the necessity of adopting thecode of ethics for public services which not onlyregulates the role of the civil servants but alsospecifies the relationship between the employeesin public services and politicians, so that the basiccommitment of the civil servants towards thewelfare of the public and the principlesenshrined in the Constitution is reiterated.

Further, the 2nd ARC in its report onPersonnel administration emphasized on a needto safeguard the political neutrality and


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impartiality of the civil services for which itbelieves that the onus lies equally on the politicalexecutive as well as the civil service

This aspect is recommended to be includedin the Code of Ethics for Ministers as well as theCode of Conduct for Public Servants. Further the

Commission reiterated its recommendationmade in its Report on Ethics in Governancewhile examining the definition of corruptionunder the Prevention of Corruption Act, 1988,wherein it has been recommended that abuseof authority unduly favoring or harmingsomeone and obstruction of justice should beclassified as an offence under the Act. This wouldlead to the protection of honest and upright civilservants against arbitrary political interference.Moreover it also stressed upon the essentiality

to lay down certain norms for recruitment ingovernment to avoid complaints of favoritism,nepotism, corruption and abuse of power. Thesenorms are:

i) Well defined procedure for recruitmentto all government jobs.

ii) Wide publicity and open competition forrecruitment to all posts.

iii) Minimization, if not elimination, ofdiscretion in the recruitment process.

iv) Selection primarily on the basis ofwritten examination or on the basis ofperformance in existing public/board/university examination with minimumweight to interview.

These principles are envisaged in the newCivil Services Bill which the commission hassuggested the government to bring.

Having said all this the real fruits of the effortscan come only if the government implements

these recommendations which is in itself is anissue of concern as any such move is interpretedin the political circles as a move to dilute politicalcontrol over administration which is a taboo inthe political class of India. Further beyond thelimitations of organization and structures therehave been numerous instances of upright civilservants driven by morals that have resisted allthe attempts of politicization and held theirground defying fears of manipulation bytransfers, promotions, postings, etc. So

ultimately structures and statutes could only helpup to a limited extent and primarily it is the menof conscience who could really help in bringinggood governance to the people.

LEGISLATIVE CONTROL OVER THE

EXECUTIVE

Legislative control over administration impliesthe control of parliament over the government asofficials cannot be directly held accountable to the

parliament owing to the principle of ministerialresponsibility and anonymity. Legislative controlover administration is exercised by means ofseveral tools like law making, question hour(interpellations), zero hour, half an hour discussion,short duration discussion, calling attention motion,adjournment motion, no confidence motion,censure motion, budgetary system, etc. Furtherthere are also means to exercise more specificcontrol through parliamentary committees likePublic Accounts Committee, Estimates committee,

Committee on Public Undertakings, Committee onSubordinate Legislation, Committee onGovernment Assurances, Departmental StandingCommittees, etc. Some are discussed below as:

Zero Hour: Unlike the Question Hour, the

Zero Hour is not mentioned in the rules of

procedure. Thus it is an informal device

available to the members of the parliament

to raise matters without any prior notice.

The Zero Hour starts immediately after the

Question Hour and lasts until the agendafor the day (i.e., regular business of the

House) is taken up. In other words, the

time gap between the Question Hour and

the agenda is known as Zero Hour. It is

an Indian innovation in the field of

parliamentary procedures and has been in

existence since 1962.

Half- an-Hour D iscussion: It is meant for

raising a discussion on a matter of

sufficient public importance which has

been subjected to a lot of debate and the

answer to which needs elucidation on a

matter of fact. The Speaker can allot three

days in a week for such discussions. There

is no formal motion or voting before the

House.

Shor t Du r a t i on D i scussi on : It is also

known as two hour discussion as the time

allotted for such a discussion should not

exceed two hours. The members of the

Parliament can raise such discussions on amatter of urgent public importance. The

Speaker can allot two days in a week for


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such discussions. There is neither a formalmotion before the house nor voting. Thisdevice has been in existence since 1953.

Other Discuss ions: In addition to theabove discussions, there are various otheroccasions available to the members of

Parliament to raise discussions and debatesto examine and criticize the administrationfor its lapses and failures. These includethe following:

a. Inaugural speech of the President (i.e.,Motion of Thanks)

b. Introduction of several bills for enactmentof laws (i.e. debates on legislation)

c. Introduction and passing of resolutions onmatters of general public interest

Call ing At tenti on: It is a notice introducedin the Parliament by a member to call theattention of a minister to a matter of urgentpublic importance and to seek anauthoritative statement from him on thatmatter. Like the Zero Hour, it is also anIndian innovation in the parliamentaryprocedure and has been in existence since1954. However, unlike the Zero Hour, it ismentioned in the rules of procedure.

Adjournment M oti on: It is introduced in

the Parliament to draw attention of theHouse to a matter of urgent publicimportance. This motion needs the supportof 50 members to be admitted. As itinterrupts the normal business of theHouse, it is regarded as an extraordinarydevice. It involves an element of censureagainst the government and hence RajyaSabha is not permitted to make use of thisdevice.

The discussion on an adjournment motion

should last for not less than two hours and thirtyminutes. The right to move a motion for anadjournment of the business of the House issubject to the following restrictions:

1. It should raise a matter which is definite,factual urgent and of public importance;

2. It should not cover more than one matter;

3. It should be restricted to a specific matterof recent occurrence and should not beframed in general terms;

4. It should not raise a question of privilege;5. It should not revive discussion on a matterthat has been discussed in the same session;

6. It should not deal with any matter that isunder adjudication by a court; and

7. It should not raise any question that canbe raised on a distinct motion.

No Confidence M oti on: Article 75 of theConstitution states that the Council of

Ministers shall be collectively responsibleto the Lok Sabha. It means that theministry stays in office so long as it enjoysconfidence of the majority of the membersof the Lok Sabha. In other words, the LokSabha can remove the ministry from office

by passing the No Confidence Motion. Themotion needs the support of 50 membersto be admitted.

Budgetary System: This is the mostimportant technique of parliamentary

control over administration. The Parliamentcontrols the revenues and expenditures ofthe government through enactment of the

budget. It is the ultimate authority tosanction the raising and spending ofgovernment funds. It can criticize thepolicies and actions of the government andpoint out the lapses and failures ofadministration during the process ofenactment of the budget.

Unless the Appropriation Bill and the

Finance Bill are passed, the executive cannotincur expenditure and collect taxes respectively.(For details see chapter on FinancialAdministration)

Audi t System:This is an important tool ofparliamentary control over administration.The Comptroller and Auditor General ofIndia (CAG), on behalf of the Parliament,audits the accounts of government andsubmits an annual Audit Report about

the financial transactions of thegovernment. The report of CAG highlightsthe improper, illegal, unwise, uneconomicaland irregular expenditures of thegovernment. The CAG is an agent of theParliament and is responsible only to it (i.e.,Parliament). Thus the financialaccountability of the government to theParliament is secured through the auditReport of the CAG.

Pub l i c Accounts Commi t tee : This

committee was set up first in India in 1921under the provisions of the Government ofIndia Act of 1919 and has since been inexistence. At present it consists of 22


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members (15 from the Lok Sabha and 7from the Rajya Sabha). The members areelected by the Parliament every year fromamongst its members according to theprinciple of proportional representation bymeans of the single transferable vote. Thus,

all parties get due representation in it. Theterm of office of the members is one year.A minister cannot be elected as a memberof the Committee. The Chairman of theCommittee is appointed by the Speakerfrom amongst its members. Until 1966-67,the Chairman of the Committee belongedto the ruling party. However, since then(i.e., 1967) a convention has developedwhereby the Chairman of the committeeis selected invariably from the Opposition.

The function of the Committee is to examinethe annual audit reports of the Comptroller andAuditor General of India (CAG) which are laid

before the Parliament by the President. In thisfunction the Committee is assisted by the CAG.

The CAG submits three audit reports to thepresident, namely, audit report on appropriationaccounts, audit report on finance accounts andaudit report on public undertakings.

The committee examines public expenditure

not only from the legal and formal point of viewto discover technical irregularities but also fromthe point of view of economy, prudence, wisdomand propriety to bring out the cases of waste,loss, corruption, extravagance, inefficiency andnugatory expenses.

I n more det ail t he funct ions of t he commi t t ee

are:

1. To examine the appropriation accountsand the finance accounts of the Union

government and any other accounts laidbefore the Lok Sabha. The appropriationaccounts compare the actual expenditurewith the expenditure sanctioned by theParliament through the appropriation Act,while the finance accounts show theannual receipts and disbursements of theUnion Government.

2. In scrutinizing the appropriation accountsand the audit report of CAG on it, theCommittee has to satisfy itself that:

(a) The money that has been disbursed waslegally available for the applied service orpurpose;

(b) The expenditure conforms to the authoritythat governs it; and

(c) Every re-appropriation has been made inaccordance with the related rules.

3. To examine the accounts of state corpo-rations, trading concerns and

manufacturing projects and the auditreport of CAG on them (except those publicundertakings which are allotted to thecommittee on public undertakings.)

4. To examine the accounts of autonomousand semi-autonomous bodies, the audit ofwhich is conducted by the CAG.

5. To consider the report of the CAG relatingto an audit of any receipt or to examinethe accounts of stores and stocks.

6. To examine the money spent on anyservice during a financial year in excess ofthe amount granted by the Lok Sabha forthat purpose.

On the role played by the Committee, AshokChanda observed: Over a period of years, theCommittee has entirely fulfilled the expectationthat it should develop into a powerful force inthe control of public expenditure. It may beclaimed that the traditions established andconventions developed by the Public AccountsCommittee conform to the highest traditions ofa parliamentary democracy.

How ever, the eff ecti veness of t he rol e of t he

Commit tee is l i mit ed by t he fol l ow ing:

(a) It is not concerned with the questions ofpolicy in broader sense.

(b) It conducts a post-mortem examination ofaccounts (showing the expenditure alreadyincurred).

(c) It cannot intervene in the matters of day-

to-day administration.(d) Its recommendations are advisory and not

binding on the ministries.

(e) It is not vested with the power ofdisallowance of expenditures by thedepartments.

(f) It is not an executive body and hence,cannot issue an order. Only the Parliamentcan take a final decision on its findings.

Est i mat es Commi t t ee: The origins of this

committee can be traced to the Standing FinancialCommittee setup in 1921. The first EstimatesCommittee in the post-independence era wasconstituted in 1950 on the recommendation of


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John Marhai , the then Finance Minister .Originally, it had 25 members but in 1956 itsmembership was raised to 30. All the thirtymembers are from Lok Sabha only. The RajyaSabha has no representation in this Committee.These members are elected by the Lok Sabhaevery year from amongst its members, accordingto the principles of proportional representation

by means of a single transferable vote. Thus, allparties get due representation in it. The term ofoffice is one year. A minister cannot be electedas a member of the Committee. The Chairmanof the Committee is appointed by the Speakerfrom amongst its members. The Chairman of theCommittee is invariably from the ruling party.

The function of the Committee is to examinethe estimates included in the budget and suggesteconomies in public expenditure. Hence, it has

been described as a continuous economycommittee.

I n more det ail , the funct i ons of t he Commit t ee

are:

(a) To report what economics, improvementsin organization, efficiency and administrativereforms consistent with the policy underlyingthe estimates may be affected.

(b) To suggest alternative policies in order to

bring about efficiency and economy inadministration.

(c) To examine whether the money is well laidout within the limits of the policy impliedin the estimates.

(d) To suggest the form in which the estimatesshall be presented to Parliament:

The Committee shall not exercise its functionsin relation to such public undertakings as areallotted to the Committee on PublicUndertakings.

The Committee may continue theexamination of the estimates from time to time,throughout the financial year and report to theHouse as its examination proceeds. It shall not

be incumbent on the Committee to examine theentire estimates of any one year. The demandsfor grants may be finally voted despite the factthat the Committee has made no report.

How ever, the eff ecti veness of t he rol e of t he

commit tee is l i mit ed by t he fol l ow ing:

(i) It examines the budget estimates onlyafter they have been voted by the

Parliament, and not before that.(ii) It cannot question the policy laid down

by the Parliament.(iii) Its recommendations are advisory and

not binding on the ministries.(iv) It examines every year only certain

selected ministries and departments.Thus, by rotation, it would cover all ofthem over a number of years.

(v) It lacks the expert assistance of the CAGwhich is available to the Public AccountsCommittee.

(vi) Its work is in the nature of a post-mortem

Commit t ee on Publi c Undert aki ngs: ThisCommittee was created in 1964 on the

recommendation of the Krishna MenonCommittee. Originally, it had 15 members(10 from the Lok Sabha and 5 from theRajya Sabha). But in 1974, its membershipwas raised to 22 (15 from the Lok Sabhaand 7 from the Rajya Sabha). The membersare elected by the Parliament every yearfrom amongst its members according to theprinciple of proportional representation bymeans of a single transferable vote. Thus,all parties get due representation in it. The

term of office of the members is one year.A minister cannot be elected as a memberof the Committee. The Chairman of theCommittee is appointed by the Speakerfrom amongst its members who are drawnfrom the Lok Sabha only. Thus, themembers of the Committee who are fromthe Rajya Sabha cannot be appointed asthe Chairman.

The funct i ons of t he Commi t t ee are:

(a) To examine the reports and accounts ofpublic undertakings.

(b) To examine the reports, if any, of theComptroller and Auditor-General on publicundertakings.

(c) To examine, in the context of autonomyand efficiency of public undertakings,whether the affairs of the publicundertakings are being managed inaccordance with sound business principlesand prudent commercial practices.

(d) To exercise such other functions vested inthe Committee on Public Accounts and theCommittee on Estimates in relation to


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public undertakings as may be allotted tothe Committee by the Speaker from timeto time.

The Commi t tee sha l l no t examine and

inv esti gate any of t he foll ow ing:

(i) Matters of major government policy asdistinct from business or commercialfunctions of the Public undertakings.

(ii) Matters of day-to-day administration.

(iii) Matters for the consideration of whichmachinery is established by any specialstatute under which a particular publicundertaking is established.

Furt her, t he effect i veness of t he rol e of t he

Committ ee is l i mit ed by t he fol l ow ing:

(a) It cannot take up the examination of morethan ten to twelve public undertakings ina year.

(b) Its work is in the nature of a post-mortem.

(c) It does not look into technical matters asits members are not technical experts.

(d) Its recommendations are advisory and notbinding on the ministries.

Commi t t ee on Subordi nat e Legi slat i on:This Committee was constituted in 1953.

It consists of 15 members including theChairman, who are nominated by theSpeaker. The term of office of the membersis one year. A minister cannot benominated as a member of the Committee.The Chairman of the Committee is drawnfrom the Opposition.

The function of the Committee is to examineand report to the Lok Sabha, whether the powersto make regulations rules sub-rules, by-laws andothers, conferred by the Constitution or

delegated by the Parliament to the executive, arebeing properly exercised by it. Each regulation,rule, sub-rule, by-law and others, is technicallyknown as Order. After each such order is laid

before the Lok Sabha, the Committee shallconsider.

(i) Whether it is in accord with the generalobjects of the Constitution or the actpursuant to which it is made.

(ii) Whether it contains matter, which inthe opinion of the committee, should

more properly be dealt within an act ofparliament.

(iii) Whether it contains imposition of any

tax.(iv) Whether it directly or indirectly bars the

jurisdiction of the courts.(v) Whether it gives retrospective effect to

any of the provisions in respect of whichthe Constitution or the act does not

expressly give any such power.(vi) Whether it involves expenditure fromthe Consolidated Fund of India or thepublic revenues.

(vii) Whether it appears to make someunusual or unexpected use of thepowers conferred by the Constitution orthe act pursuant to which it is made.

(viii) Whether there appears to have beenunjustifiable delay in its publication orin laying it before the parliament.

(ix) Whether for any reason its form orpurport calls for any elucidation.

Commi t t ee on Gov ernment A ssurances:This Committee was constituted in 1953.It consists of 15 members including theChairman, who are nominated by thespeaker. The term of office of members isone year. A minister cannot be nominatedas a member of the Committee.

The function of the Committee is to examinethe assurances, promises, undertakings, and so

on, given by ministers from time to time on thefloor of the Lok Sabha, and to report on:

(a) The extent to which such assurances,promises, undertakings have beenimplemented.

(b) Whether such implementation has takenplace within the minimum time necessaryfor the purpose.

Depart ment al St andi ng Commi t t ees: Thereare 24 Departmentally Related Standing

Committees covering under their jurisdictionall the Ministries/Departments of theGovernment of India. Each of theseCommittees consists of 31 Members - 21from Lok Sabha and 10 from Rajya Sabhato be nominated by the Speaker, Lok Sabhaand the Chairman, Rajya Sabha,respectively. Provided that a memberappointed as a Minister, shall not benominated as, or continue as, a member ofany Committee. The term of Office of these

Committees does not exceed one year.A full-fledged system of 17 Departmentally

Related Standing Committees came into being


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in April, 1993. Some examples: Committee onCommerce; Committee on Home Affairs;Committee on Human Resource Development,etc.

Till 13th Lok Sabha, each Standing Committeeconsisted of not more than 45 members 30 to be

nominated by the Speaker from amongst themembers of Lok Sabha and 15 to be nominated

by the Chairman, Rajya Sabha from amongst themembers of Rajya Sabha. However, withrestructuring of DRSCs in July, 2004 each DRSCconsists of 31 Members - 21 from Lok Sabha and10 from Rajya Sabha.

Wi t h reference t o the M inist ri es/Depart ment s

under t hei r pur vi ew , the funct i ons of these

St andi ng Commi t t ees are:-

a) to consider the Demands for Grants of therelated Ministries/Departments and reportthereon. The report shall not suggestanything of the nature of cut motions;

b) to examine Bills, pertaining to the relatedMinistries/Departments, referred to theCommittee by the Chairman or theSpeaker, as the case may be, and reportthereon;

c) to consider the annual reports of theMinistries/Departments and reportthereon; and

d) to consider national basic long term policydocuments presented to the Houses, ifreferred to the Committee by the Chairmanor the Speaker, as the case may be, andreport thereon:

The Standing Committees does not considermatters of day-to-day administration of therelated Ministries/Departments and therecommendations of these committees are

advisory in nature and hence, not binding onParliament.

The fol l ow i ng procedure shall be fol low ed

by each of t he St and ing Commi t t ees in i t s

consi derat i on of t he Demands for Gr ants and

mak ing a report t hereon t o t he Houses, aft er t he

general di scussi on on t he Budget i n t he Houses

i s over, and t he Houses are adj ourned for a fi xed

period:-

a) the Committee shall consider the Demands

for Grants of the related Ministries duringthe aforesaid period;

b) the Committee shall make its report withinthe specified period;

c) There shall be a separate report on theDemands for Grants of each Ministry;

d) The demand for grants shall be consideredby the House with respect to the reports ofthe Standing Committee.

The fol l ow i ng procedure shal l be fol l ow ed

by each of t he St andi ng Comm i t t ees i n exami ni nga Bi l l and maki ng a report t hereon:-

a) the Committee shall examine only suchBills introduced in either of the Houses asare referred to it by the Chairman or theSpeaker, as the case may be; and

b) the Committee shall consider the generalprinciples and clauses of such Bills andshall make report thereon within such timeas may be specified by the Chairman or

the Speaker, as the case may be.The Departmentally Related Standing

Committee System is a path-breaking endeavourof the Parliamentary surveillance overadministration. With the emphasis of theirfunctioning to concentrate on long-term plans,policies guiding the working of the Executive,these Committees provide necessary direction,guidance and inputs for broad policyformulations and in achievement of the long-term national perspective by the Executive.

The merit s of the st andi ng commi t t ee syst em

in t he Parl iament are:-

(i) Their proceedings are devoid of any partybias.

(ii) The procedure adopted by them is moreflexible than in the Lok Sabha.

(iii) The system makes parliamentary controlover executive much more detailed, close,continuous, in-depth and comprehensive.

(iv) The system ensures economy and efficiencyin public expenditure as the ministries/Departments would now be more carefulin formulating their demands.

(v) They facilitate opportunities to all themembers of Parliament to participate andunderstand the functioning of thegovernment and contribute to it.

(vi) They can avail of expert opinion or publicopinion to make the reports. They areauthorized to invite experts and eminent

persons to testify before them andincorporate their opinions in their reports.

(vii)The opposition parties and the RajyaSabha can now play a greater role in


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exercising financial control over theexecutive.

However the major issue in this section is thelimitations and ineffectiveness of various toolsof legislative control. This issue however pansout to the argument as to whether the legislature

is able to exercise effective control over theexecutive or not.

The legislative control over administrationin parliamentary countries like India is moretheoretical than practical. In realty, the controlis not as effective as it ought to be. The legislativecontrol over the government in India could not

be termed as strong and there are various reasonsfor it. The first and foremost is the nature of ourparliamentary form of government wherein thecouncil of ministers is drawn out from the group

that holds the majority in the parliament.Moreover all the decisions in a parliamentaryform of government are taken by the majoritytherefore as long as the council of ministersenjoys the support of the majority there is hardlyanything substantial that the parliament coulddo to control the executive. Further there areother reasons which come into picture as persituation and settings viz.

1. In India the size of administration hasgrown so large in terms of volume of work

and complexity that the parliament hasneither the time nor the expertise to controlthe administration.

2. The technical nature of some issues likethe financial grants is beyond the full andproper understanding of the laymenparliamentarians. Further the increasedrecourse to Guillotine has reduced thescope of financial control.

3. The increased importance of delegated

legislation has further reduced the powersof the parliament in making the details ofthe law. This has in fact increased thepowers of the bureaucracy which is now,more free to hide the devil in the details.

4. The frequent disruptions in the workingof the parliament due to political reasonsor other reasons by the opposition orotherwise further compress the limited timeavailable to the parliament for functionsof scrutiny and control of the acts of the

executive.5. The frequent promulgation of ordinances

by the President further dilutes the powers

of the parliament in legislation andscrutiny.

6. The most concerning reason however isthe extensive limitations imposed on therole and functioning of the parliamentarycommittees which have been reduced to

an eyewash due to the following reasons:a) They are only made to make a post

mortem analysis of the work, whichmakes the preventive aspect of controlover the executive difficult.

b) They are not allowed to question thepolicy decisions of the government.

c) It can hardly look into the technicalmatters as its matters are drawn fromthe members of the parliament whohardly have any understanding of

technical matters.d) Their recommendations are of advisory

nature and are not binding on theparliament.

Thus the parliamentary committees end upwith hardly any ground to make meaningfulcontribution to the process of legislative control.

However this opinion is not acceptable toPaul. H. Appleby who is still very critical to theparliamentary control in India. He writes thatthe members of parliament greatly exaggeratethe importance of the report of the CAG. This inturn increases timidity of public servants at alllevels, making them unwilling to take initiativesand for actions and subsequently unwilling totake responsibility of their decisions, forcingdecisions to be made by a slow and cumbersomeprocess of reference and conference in whicheverybody finally shares some part ofresponsibility of making the decision, not enoughgets done and what gets done is done too slowly.

Moreover the parliament seems strangelyinclined to make too ready concessions to someof the self interest demands of some pressuregroups from the business community and otherareas and enforce corresponding changes ingovernments decisions. Further the parliamentsendorsement of the formerly small and narrowapproach of the public service commission to itsown functions in the mistaken belief that thisstrengthens the merit system, undermines theresponsibility of the ministries and thereby,undermines the responsibility of the parliament.

Finally he targets the apprehensions of theparliamentarians behind their reluctance to


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delegate their powers of detail. This creates apossessive culture right down the hierarchy fromministers to secretaries to managing directors toothers, thus creating too much control whichactually becomes ineffective and stagnated dueto this inhibitionists mindset, defeating its verypurpose.

Further more in present context the role ofcoalition politics also increases the degree oflegislative control over administration. We haveseen several times in the past that when theruling party is dependent on some other partyfor majority in the Parliament, it becomes moreresponsive at least in the sense that it is found to

become more sensitive to the concerns indicatedby the coalition partner, however this increasedefficacy seems to be working other ways when

any member from the coalition partner is allegedto be involved in some irregularities. In suchcases the same coalition constraints which hadincreased the degree of legislative control is foundto demolish the norms of legislative control andthe administration/executive/government startsprotecting the partner defying all the legislativenorms.

Another factor which seems to work in favorof increasing the degree of legislative controlover the administration in the present times is

the increased role of the media. Mass media inIndia has grown and developed very rapidly inIndia especially in the past decade. The growthof 24x7 news channels and the increasedpenetration of satellite television in the countryhas vested great powers in the media to createpublic opinion. The media keeps the people andthe leaders informed about the activities of thegovernment continuously. The MPs have beenfound to use media reports frequently in thedebates of the parliament. Several sting

operations have exposed not only the people inthe government but also people in the exclusivepublic domain and have forced them to answerand explain their actions. However if we are toquantify the achievements of the media the onlymajor effect it can produce is in the creation of apublic opinion in case of any gross violation ofthe constitution or public interest by thegovernment, which could have any impact atthe time of elections.

Thus it is difficult to say conclusively as towhether the legislature is able to exerciseoptimum levels of control over the executive.However there is much which the legislature

could do particularly by its powers of framingnew laws and regulations. For example thesecond ARC has recommended a Code of Ethicsfor Civil Servants under which:

A. A set of Public Service Values towardswhich all public servants should aspire,

should be defined and made applicable toall tiers of Government and para Governmentorganizations. Any transgression of thesevalues should be treated as misconduct,inviting punishment.

B. A code of Ethics for Regulators in form ofa comprehensive and enforceable code ofconduct should be prescribed for allprofessions with statutory backing.

C. An ethical Framework for Ministers. Inaddition to the existing Code of Conduct

for Ministers, there should be a Code ofEthics to provide guidance on howMinisters should uphold the higheststandards of constitutional and ethicalconduct in the performance of their duties.

D. Dedicated units should be set up in theoffices of the Prime Minister and the ChiefMinisters to monitor the observance of theCode of Ethics and the Code of Conduct.The unit should also be empowered toreceive public complaints regardingviolation of the Code of Conduct.

E. The Prime Minister or the Chief Ministershould be duty bound to ensure theobservance of the Code of Ethics and theCode of Conduct by Ministers. This would

be applicable even in the case of coalitiongovernments where the Ministers may

belong to different parties.

F. An annual report with regard to theobservance of these Codes should be

submitted to the appropriate legislature.This report should include specific cases ofviolations, if any, and the action takenthereon.

G. The Code of Ethics, the Code of Conductand the annual report should be put inthe public domain.

Apart from these, there are other veryimportant recommendations related to theLokpal/Lokayukta, revision of the constitutionalprotection available to the civil servants under

Article 311, review of the definition of office ofprofit, recasting of the Benami Transactions actand the Anti Corruption act, etc. If parliament


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could bring effective and meaningful legislationson these vital matters concerning the role andthe functioning of the executive, it will go veryfar in strengthening accountability and controlof the executive and thus ensuring goodgovernance.

JUDICIAL CONTROL OVER

ADMINISTRATION

It refers to the powers of the courts to keepthe administrative acts within the limits of law.It also implies the right of an aggrieved citizento challenge the wrongful acts of administratorsin a court of law. Judicial protection is availableto the citizens vis--vis actions of the permanentexecutive/bureaucracy and the political

executive/ministers. Judicial control is alsoavailable to the citizens vis--vis actions of thelegislature in form of judicial review. Unlike theexecutive control and legislative control whichis exercised by the executive and legislature on

behalf of the people, judicial control can beavailed by the citizens directly from the courts.Apart from the Governors of the states and thePresident of India who cannot be sued for theirofficial acts, everyone else can be sued in the courtof law subject to little or more exceptions.

Judiciary is the guardian of the sanctity ofthe constitution so any act of administration orthe legislature is subject to judicial review if thereis any doubt regarding their consonance withthe constitution. Judiciary can interfere in theadministrative acts under the followingcircumstances:

1. Lack of j u r i sd ict i on, that is, when theadministrator acts without authority or

beyond the scope of his authority or outsidethe geographical limits of his authority. It

is technically called overfeasance.2. E r r o r o f l aw , that is, when the

administrator misinterprets the law andthus imposes upon the citizen, obligationswhich are not required by the content oflaw. It is technically called misfeasance.

3. Error in fact f i nd ing, that is, when theadministrator makes a mistake in thediscovery of facts and acts on wrongpresumptions.

4. Abuse of au thor i t y , that is, when theadministrator uses his authority (or power

of discretion) vindictively to harm someperson. It is technically called as

malfeasance.

5. Err or of pr ocedur e, that is, when theadministrator does not follow the laid downprocedure.

Furt her, the j udi ciar y exercises contr ol over

admini str at i on through the fol l ow ing met hods

or techniques:

1. Judicial review.

2. Statutory appeal.

3. Suits against the government.

4. Suits against public officials.

5. Extraordinary remedies which are effectedthrough the following six writs:

a) Habeas Corpus.

b) Mandamus.

c) Prohibition.

d) Certiorari.

e) Quo Warranto.

f) Injunction.

Some are di scussed below as:

Judi ci al Revi ew :It is the power of the courtsto be violative of the Constitution (ultra vires),

they can be declared as illegal, unconstitutionaland invalid by the courts. The scope of judicialreview in the USA is much wider than in Britain.India falls in between the two due to theconstitutional and statutory limitations (on thescope of judicial review).

Statut ory Appeal:The parliamentary statute(i.e. law or act) may itself provide that in aspecific type of administrative act, the aggrievedcitizen will have the right of appeal to the courts.

Under such circumstances, the statutory appealis possible.

Sui t s Against Government : In India, Article300 of the Constitution governs the suability ofthe state. It states that the Union Governmentand State Government can be sued, subject tothe provisions of the law made by the Parliamentand the state legislature respectively. The stateis suable in contracts. This mans that thecontractual liability of the Union Governmentand the State Government is same as that of an

individual under the ordinary law of contact.However, in case of torts, the portion is different(a tort is a wrongful action or injury for which a


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suit for damages lies). In this regard, a distinctionis made between the sovereign and non-sovereign functions of the state. The state, forthe tortuous acts of its servants, can be sued onlyin case of its non sovereign functions but not incase of its sovereign function.

In Britain, there has been tradition immunityof the state (i.e., Crown) from any legal liabilityfor any action. Suits against government incontract or tort were severely restricted. Suchrestrictions were relaxed and the situation wasimproved by the Crown Proceeding Act of 1947.The present position in Britain is that the Statecan be sued for the wrongful acts of its officialswhether in contracts or torts, with someexceptions.

In the USA, subject to a few exceptions, thestate cannot be sued in cases pertaining to torts.In other words, the State (either federalgovernment or state government) is immunefrom the tortuous liability of its servants, exceptin few cases.

In France, where the system of DroitAdministratif prevails, the state assumesresponsibility for the official actions of itsservants and compensate the citizens for any losssuffered by them. The aggrieved citizens candirectly sue the state in the administrativecourts and get the damages awarded. (Fordetails see France under Administrative Systemchapter).

Suit s Against Publi c O ffi cial s: In India, thePresident and the state governors enjoy personalimmunity from legal liability for their acts. Duringtheir term of office, they are immune from anycriminal proceedings, even in respect of theirpersonal acts. They cannot be arrested orimprisoned. However, after giving two months

notice, civil proceedings can be instituted againstthem during their term of office in respect of theirpersonal acts. The ministers do not enjoy suchimmunities and hence they can be sued inordinary courts like common citizens for crimesas well as torts.

Under the Judicial Officers Protection Actof 1850, the judicial officers are immune fromany liability in respect of their acts and hencecannot be used.

The civil servants are conferred personalimmunity from legal liability for official contracts

by the Article 299 of the Constitution of India.In other cases, the liability of the officials is the

same as of any ordinary citizen. Civilproceedings can be instituted against them foranything done in their official capacity aftergiving a two months notice. As regards criminalliabilities, proceedings can be instituted againstthem for acts done in their official capacity withprior permission from the government.

The Monarch in Britain and the President inthe USA enjoy immunity from legal liability. Thelegally accepted phrase in Britain is. The Kingcan do no wrong. Hence he cannot be sued inany court of law.

Extraordi nary Remedies: These consist of thefollowing six kinds of writs issued by the courts.

(i) Habeas Corpus: It literally means tohave the body of. It is an order issued

by the court to a person who hasdetained another person, to produce thebody of the latter before it. The courtwill set the imprisoned person free ifthe detention is illegal. This writ is a

bulwark of individual liberty againstarbitrary detention.

(ii) M andamus: It literally means wecommand. It is a command issued bythe court to a public official asking himto perform his official duties which he

has failed to perform.(iii) Prohibit ion: It literally means to forbid.It is issued by a higher court to a lowercourt when the latter exceeds its

jurisdiction. It can be issued only againstjudicial and quasi-judicial authorities andnot against administrative authorities.Hence, its importance as a tool of judicialcontrol over administration is highlyrestricted.

(iv) Ce r t i o r a r i : It literally means to be

certified It is issued by a higher court to alower court for transferring the records ofproceedings of a case pending with it, forthe purpose of determining the legality ofits proceedings or for giving fuller and amore satisfactory effect to them than could

be done in the lower court. Thus, unlikethe Prohibition which is only preventive,the Certiorari is both preventive as well ascurative like Prohibition. It can be issuedonly against judicial and quasi-judicial

authorities and not against administrativeauthorities.(v) Quo Warranto: It literally means by


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what authority or warrant. It is issuedby the courts to enquire into the legalityof claim of a person to a public office.Therefore, it prevents illegal assumptionof public office by a person.

(vi) In junc t ion : It is issued by the court

asking a person to do a thing or refrainfrom doing it. Thus, it is of two kindsviz., mandatory and preventive. Themandatory injunction resembles the writof Mandamus but it is different. As put

by M.P. Sharma, Mandamus cannot beissued against private persons while theinjunction is primarily a process ofprivate law and only rarely a remedy inadministrative law. Mandamus is aremedy of common law while injunction

is the strong arm of equity.Similarly, preventive injunction resembles

the writ of Prohibition but it is different. In thewords of M.P. Sharma, Injunction is directedto the litigant parties while prohibition to thecourt itself. Also, while injunction recognizes the

jurisdiction of the court in which the proceedingsare pending, prohibition strikes at such

jurisdiction.

Wri ts in India

The following points can be noted in thiscontext.

(i) The courts can issue all the abovementioned writs. However, only the firstfive are mentioned in the Constitutionof India.

(ii) Article 32 of the Constitution authorizesthe Supreme Court to issue writs for theenforcement of the Fundamental Rightsof citizens guaranteed to them by theConstitution.

(iii) Article 226 of the Constitutionauthorizes High Courts to issue the writsnot only for the enforcement of theFundamental Rights of citizensguaranteed by the Constitution but alsofor other purposes. The writ jurisdictionof High Courts is wider than that of theSupreme Court.

(iv) Parliament (under Article 32) canempower any other court to issue thesewrits. Since no such provision has beenmade so far, only the Supreme Courtand the High Courts can issue the writsand not any other court.

Despite all the mechanisms in place the mostimportant issue in this section remains as towhether the judiciary has been able to dischargeits function of ensuring that the administrativeactions are performed within the spirit ofconstitution and good governance is deliveredto the citizens even at the bottom level. The moreinfluential opinion goes against the efficacy ofthe judiciary in this sense, which has beenattributed to a number of reasons which have

been instrumental in reducing the effectivenessof judicial control over administration:

1. The judiciary cannot intervene inadministrative process on its own. Thecourts intervene only when the aggrievedcitizen takes the matter before them.Therefore, the judiciary lacks the suo moto

power.2. The control exercised by the courts is in

the nature of a post mortem control, thatis, they intervene after the damage is doneto the citizen by the administrative acts.

3. All administrative acts are not subject tojudicial control as the parliament mayexclude certain matters from the

jurisdiction of the courts. For example theninth schedule items. Moreover there alsocertain Self denying ordinances of the

judiciary by which the judiciary deniesitself jurisdiction in certain matters on itsown accord.

4. The judicial process is slow andcumbersome as well as very expensivewhich makes almost impossible for thecommon man to seek judicial remedies tohis woes. Further, the judges being legalexperts cannot fully properly understandthe technical nature of administrative acts

which further adds to the dilatoriness ofthe judicial pronouncements.

5. The volume, variety, and complexity ofadministration have increased due towelfare orientation of the state which hasimposed serious limitations on the capacityof the courts to review each and everyadministrative act affecting the citizens.

6. Further, off late there have been certaininstances where judges even in the higher

judiciary have been found to ac t in

collusion with the corrupt officers and therelated establishment. Though till date no

judge of the higher judiciary in India has


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been impeached but there have beenserious allegations of misappropriationsagainst several of them like Justice SoumitraSen of the Calcutta High Court or JusticeDinakaran of the Sikkim High Court, toname a few of them.

7. The lack of clear definition of separationof powers between the legislature-executiveand the judiciary. Following which theconfrontation of the judiciary with thelegislature and the limitations of judicialactivism in this area, sets anotherimpediment in the road to judicial controlover administration. On the one hand theparliamentary privileges are not explicitlydefined because of which sometimes theparliament gets offended by the

pronouncements of the judiciary and onthe other the laws related to contempt ofcourt are primitive and vague whichsometimes create unwarranted offences ofthe judiciary by the legislature and theexecutive.

Further, these reasons could be concretizedinto three important sub issues which are at thecore of all what is said and done in this reference.One is the inherent weaknesses in theconstitution itself related to the separation of

powers between the judiciary-executive and thelegislature which stimulates as well as restrains

judicial activism. Another is the powers of thecourts related to the contempt proceedingswhich have time and again restrained thescrutiny of the irregular judges and alsorestricted the legislature and the executive frominitiating any type reforms in the judiciary. Thirdis the irresponsible behavior of the people whiledealing with the judicial instruments of PILs,which have further added to the volumes of

cases with the judiciary.

Foremost is the vague issue of separation of

powers whereby the judiciary constantly facesthe challenge of balancing the duty of protectingthe constitution at the same time not interferingwith the domain of rights of the legislature andthe executive. This problem surfaces itself everynow and then. For example in the Cash for queryscam some years ago, when the expulsion of theMPs from the parliament was challenged in thesupreme court, the apex court issued notice tothe parliament, which was taken as an offenceagainst the parliament by the speaker Mr.Somnath Chatterjee who refused to answer thenotice of the Supreme Court on the grounds thatexpulsion of the MPs was an exclusive right ofthe parliament to which it is not accountable tothe courts. The Supreme Court later upheld theexpulsion of the MPs and also the rights of theParliament vis--vis expulsion of the MPs,

however attached the issue to the provisions ofjudicial review. However, it is not the judiciarywhich is always the infringer, even the legislatureand the executive have at times shown their

reluctance to obey the judiciary for example thefamous ceiling and demolition case of Delhiwhere both the legislature and the executiveconspired to offset the judicial orders to subvertit by passing several legislations and executive

orders. Further on the issue of implementing thedirections of the judiciary in response to a PILon initiating Police reforms the executive has

been trying to hide behind the immunity fromjudicial scrutiny, it possess regarding policydecisions.

Thus there have been cases of accidental ordeliberate infringement of the fine line separationof the domain of operations of the legislature,

judiciary and the executive by either organ ofthe state, however this problem is not one of thosewhich could be sorted out by one legislation,pronouncement or an executive order, rather itis something which evolves over the period of


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time and is contingent on the collectiveconscience of the society which is in itself in theprocess of evolution. However we must always

be ready to give the society a chance and keepaccommodating and assimilating new ideaswhich address to the needs of changing times.

The other major sub-issue is related to thequestion as to what should be the nature andstructure of the powers of the courts related tocontempt proceedings. The answer of thisquestion is very vital as it has its relations withthe process of judicial reforms including theprime issues of reducing dilatoriness in judicialprocess and the idealizing the conduct of the

judges. Both these matters are of utmostimportance if we have to maintain the vitalityof the judiciary in the process of extracting

accountability from the other two organs of thestate and ensuring good governance. The sitting

judge of the Supreme Court, Markandeya Katjuin his one of the articles in THE HINDU wrotethat the test to determine whether an actamounts to contempt of court or not is that as towhether it makes the functioning of the judgesimpossible or extremely difficult. He furtherwrites that, much of our contempt law is ahangover from the British rule, but under Britishrule, India was not free and democratic. He

quotes the words of the Doyen of Indian Bar,Fali Nariman who said that the offence ofscandalizing the court is a mercurial jurisdictionin which there are no rules and no constraints.He further mentions about the reasons for theuncertainty in the law of contempt of court. Inthe Contempt of Court Act, 1971, there was nodefinition of what constitutes scandalizing thecourt, or what prejudices, or interferes with thecourse of justice. In a monarchy, the judge reallyexercises the delegated functions of the king, andfor this he requires dignity and majesty as a kingmust have to get obedience from his subjects. Butin a democracy there is no need for judges tovindicate their authority or pomp. Theirauthority will come from the public confidence.He finally concludes that the best shield andarmor of a judge is his reputation of integrity,impartiality and learning. An upright judge willhardly ever need to use the contempt power inhis judicial career.

Encouraged by views like this, the

government garnered the courage to initiate theprocess of judicial reform which was earlierassumed the exclusive domain of the judiciaryitself. In the same reference the 98th

Constitutional Amendment bill, 2003 wasprepared which ought to establish a National

Judicial Council (NJC). The NJC was supposedto be presided by the CJI as its chairperson, twoseniormost judges of the Supreme Court, unionminister of law and justice and an eminentcitizen as its members. The following functionswere primarily envisaged for the NJC:

1. Recommend names for appointment ofjudges of the Supreme Court and HighCourt including the Chief Justice of theHigh Court.

2. Recommend for transfer of judges of HighCourts.

3. To formulate a code of ethics for thejudges.

4. To enquire suo-moto or on complaint the

cases of misconduct and deviant behaviorof judges and advice the CJI or the CJHCaccordingly after advice.

Furt her t he 2nd ARC has al so recommended

for t he const it ut ion of t he NJC as part of t he

et hical f ramew ork f or t he Judiciar y. To quot e

it s w ords:

1. A National Judicial Council should beconstituted, in line with universallyaccepted principles where the appointment

of members of the judiciary should be bya collegium having representation of theexecutive, legislature and judiciary. TheCouncil should have the followingcomposition:

The Vice-President as Chairperson of theCouncil

The Prime Minister

The Speaker of the Lok Sabha

The Chief Justice of India

The Law Minister The Leader of the Opposition in the Lok

Sabha

The Leader of the Opposition in the RajyaSabha

In matters relating to the appointment andoversight of High Court Judges, the Council willalso include the following members:

The Chief Minister of the concerned State.

The Chief Justice of the concerned High

Court.2. The National Judicial Council should be

authorized to lay down the code of


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conduct for judges, including thesubordinate judiciary.

3. The National Judicial Council should beentrusted with the task of recommendingappointments of Supreme Court and HighCourt Judges.

4. It should also be entrusted the task ofoversight of the judges, and should beempowered to enquire into allegedmisconduct and impose minor penalties. Itcan also recommend removal of a judge ifso warranted.

5. Based on the recommendations of the NJC,the President should have the powers toremove a Supreme Court or High Court

Judge.

6. Article 124 of the Constitution may be

amended to provide for the NationalJudicial Council. A similar change willhave to be made to Article 217. Also, sincethe Council is to have the authority tooversee and discipline judges, furtherchanges will need to be made to Article217.

7. A Judge of the Supreme Court should bedesignated as the Judicial Values Commissioner.He/She should be assigned the task ofenforcing the code of conduct. Similararrangement should also be made in the HighCourts.

However there are differences within thejudiciary and the civil society over the need andeffectiveness of the proposed NJC. For example,the earlier chief justice of India, K.G. Balakrishnanwhen asked as to whether the CJI should besubjected to the authority of the NJC, he repliedthat the impeachment proceedings already existin the constitution to take care of it. And whether

judges should be required to file annual statementof assets, he replied that it should not becompulsory. Given the dispensation which we areimagining of making honesty and integrity of the

judges, their most potent weapon in place ofcontempt of powers, as per the views of justiceKatju, this statement of the ex-CJI surely does notmake things better.

The other major sub issue is that of excessivejudicial delays. However this is not an issuewhich could be purely linked to contempt power

of the courts. Though the Courts themselves owea major part of the responsibility; that is takinghardly any serious initiative on an issue which

was believed to be the exclusive domain of thejudiciary, but definitely the other organs of thestate also could not shy away from their part ofthe responsibility and could have made asubstantial contribution to tackle this problem.This issue has particular importance vis--vis thepoor because, it is them who are most severelyaffected by the inefficacy of the judiciary ingranting justice. As a result they tend to getattracted to extremist ideologies and tend to takelaw in their own hands. Further, there areopportunity costs elsewhere due to judicialdelays. Pranab Mukherjee says that if the judicialprocess can be expedited it could make adifference of around 1-2% to the GDP of thecountry. Administration could be heldaccountable to the judiciary only when peoplehave faith in the judicial system and they bring

their grievances to the judiciary.

The foll ow i ng fact ors could be att ri buted as

t he reasons of excessi ve judi cial del ays in I ndi a,

apar t from t he ones al ready di scussed:

1. We do not have adequate number ofCourts and judges.

2. There is no adequate funding for creatingsufficient facilities in the legal system.

3. The procedure in Courts is too technical.

4. Appointments are not based on merit andthere is favoritism and political influencetoo in the course.

5. Standards in profession are degrading andwe need to concentrate on legal education.

6. There is no co-operation between Centreand the States to address the issue.

7. The Court systems still not computerizedto the extent needed and lesser applicationof e-Governance, etc. in the legal system.

The recent National Conference on The

National Consultation for strengthening thejudiciary towards reducing the Pendency andDelays provided the perfect platform for athought on examining and conducting a postmortem on the issues of pendency and arrears.The vision statement contained appreciablechanges in the structure of courts. The most farreaching is the concept of Contract judgesenvisaged to decide backlog cases. About 15,000trial judges and 700 high court judges wouldwork in three shifts deciding the legality of

contracts, etc. The vision is to eliminate thethought of pendency and arrears and securingspeedy justice. However, whether the contract


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judges would be able to function within theprescribed procedural limits and deliver

judgments in a better and faster manner isdoubtful. Similarly the very concept of contract

judges goes against the jurisprudentia lexistence of judges in a society, who isconsidered as an epitome of justice.

Further, the measures like Plea bargainingand Lok Adalats have already been initiated toreduce the pendency load over the judiciary.Latest in this line is Nyaya Panchayat which is a

body of dispute resolution at village level. NyayaPanchayats can be endowed with functions

based on broad principles of natural justice andcan tend to remain procedurally as simple aspossible. They can be given civil and minorcriminal jurisdiction. But they should never

follow civil and criminal procedure code in toto.The 14th Law Commission report has alreadyrecommended for the revitalization of the NyayaPanchayats in line with the Art. 39-A of theconstitution. However the proposed NyayaPanchayat bill has been blocked by the Lawministry on the grounds that members of NyayaPanchayats, designated as an alternative disputeredressal mechanism at the grassroots level, donot have any legal or judicial background. Sourcesstated that it was felt that delegation of judicialpowers to local elected representatives couldpromote Khap panchayat-like establishments.

The third important issue is that related tothe PILs which are otherwise an ins

accountability and control

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