Control over Administration: Legislative, Executive, Judicial and Other Mechanisms Compared

Administrative law is largely the study of controls, and the controls come from three directions. The legislature controls by conferring the power in the first place, by attaching conditions to it, by scrutinising the rules made under it and by holding the executive answerable through questions, committees and the purse. The executive controls internally, through hierarchy, supervision, audit, discipline and the allocation of functions. The judiciary controls externally, by testing the legality of what has been done. Each is effective at something the others are not, and each has characteristic weaknesses. This topic sets them out systematically, compares what each can and cannot reach, and identifies where the gaps between them lie.

1. Legislative Control

Mechanism	How it operates
Conferment of power	The statute defines what may be done, by whom, on what conditions and with what procedure
Excessive delegation	Essential legislative functions may not be delegated, so the legislature must supply the policy
Laying of rules	Simple laying, negative resolution or affirmative resolution procedures under the parent Act
Committee on Subordinate Legislation	Scrutiny of rules for conformity with the parent Act and for unusual or retrospective provisions
Questions and debates	Starred and unstarred questions, adjournment motions, calling attention and discussions
Financial control	Demands for grants, cut motions, appropriation and the requirement of legislative sanction for expenditure
Public Accounts Committee and Estimates Committee	Examination of audited accounts and of the economy of expenditure
Committee on Public Undertakings	Scrutiny of the working of public corporations and government companies
Resolutions and motions of no confidence	The ultimate political sanction under the system of responsible government

📖 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Facts: Ordinances relating to the taking over of Sanskrit schools in Bihar were re-promulgated successively over several years without being placed before the legislature for enactment, so that a temporary law made by the executive continued in force indefinitely without legislative approval. The questions before a seven-Judge Bench were whether such re-promulgation is constitutionally permissible, whether the satisfaction of the Governor is justiciable, and what happens to rights said to have arisen under an ordinance that has ceased to operate.

Held: The Court held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. The power to issue an ordinance is a conditional legislative power conferred on the executive to meet a situation requiring immediate action, and it is subject to the obligation to place the ordinance before the legislature, which is a mandatory constitutional requirement and not a formality; the requirement of laying exists so that the legislature may scrutinise and either approve or disapprove what the executive has enacted. The Court held that the satisfaction of the President or Governor is not immune from judicial review, though the court will not enquire into its adequacy, and that an ordinance does not create enduring rights merely by having been in force, the consequences of its ceasing to operate depending on public interest and constitutional necessity rather than on an automatic theory of irreversibility.

Ratio: Legislative control over executive law-making is mandatory and not formal. Re-promulgation to avoid legislative scrutiny is a fraud on the Constitution, and the satisfaction founding an ordinance is justiciable on limited grounds.

2. Executive and Internal Control

📖 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549

Facts: The State of Punjab embarked on a scheme for the nationalisation of school textbooks, under which the Government undertook the printing and sale of textbooks itself. Publishers whose business was affected challenged the scheme on the ground that the executive could not carry on a trade without a law authorising it, there being no statute supporting the venture.

Held: The Supreme Court upheld the scheme in the main and explained the nature of executive power. It held that the executive power of the State is co-extensive with its legislative power, so the executive may act in any field in which the legislature is competent to legislate, and a specific statute is not necessary for every executive act, provided the action does not infringe a right and does not require legislative authority because it affects rights or imposes burdens or requires the expenditure of public money not otherwise sanctioned. The Court also described the structure of responsible government: the executive is collectively responsible to the legislature, the Council of Ministers remains in office so long as it enjoys the confidence of the House, and control over the executive is therefore exercised through that responsibility rather than by requiring statutory authority for each administrative act.

Ratio: Executive power is co-extensive with legislative power and does not require a statute for every act. The control over its exercise lies in the collective responsibility of the executive to the legislature and in the requirement of law where rights are affected or money is spent.

Hierarchical supervision. Powers of direction, approval, inspection, review and revision within the department.
Rules of business and allocation. Who may decide what, and at what level, is fixed by rules made under Articles 77 and 166.
Conduct rules and discipline. Standards of conduct, disciplinary proceedings and the penalties they carry.
Financial control. Delegation of financial powers, sanction requirements and internal audit.
Audit by the Comptroller and Auditor General, whose reports feed the Public Accounts Committee.
Vigilance machinery, including the Central Vigilance Commission and departmental vigilance officers.
Grievance redress, through public grievance cells, citizens' charters and departmental appeals.

3. Judicial Control

Writs under Articles 32 and 226, and superintendence under Article 227.
Grounds of review, namely illegality, irrationality, procedural impropriety, proportionality and arbitrariness under Article 14.
Control of delegated legislation, for excessive delegation, ultra vires and unconstitutionality.
Natural justice, enforced across the whole field of decisions affecting rights.
Liability, in tort under Article 300 and in public law through constitutional tort.
Statutory appeals and revisions, and the supervision of tribunals by a Division Bench of the High Court.
Contempt jurisdiction, which makes judicial directions enforceable against officials personally.

4. The Three Compared

Basis	Legislative	Executive and internal	Judicial
When it operates	Before the power is conferred and after its exercise	Continuously, during administration	After the decision, on a challenge
Who initiates	The House and its committees	Superiors and audit bodies	The person aggrieved, or the public in PIL
What it examines	Policy, wisdom, expenditure and conformity with the parent Act	Efficiency, propriety, conduct and compliance	Legality of the decision-making process
Reach into merits	Full; policy is its proper subject	Full within the hierarchy	Very limited; merits are excluded
Sanction available	Political, including refusal of supply and no confidence	Disciplinary, financial and administrative	Quashing, directions, compensation, contempt
Speed	Slow and episodic	Immediate	Slow, though quicker in urgent cases
Coverage	Selective; limited by time and priorities	Comprehensive in principle	Only what is brought to court
Principal weakness	Time, party discipline and lack of technical capacity	The controller and the controlled belong to the same body	Cannot reach inefficiency, waste or bad judgment

5. The Other Mechanisms

Institutional watchdogs. The Lokpal and Lokayuktas, the Central Vigilance Commission, the Human Rights Commissions and the Information Commissions, each with a defined jurisdiction.
Audit. The Comptroller and Auditor General, whose independence is secured by Article 148 and whose reports are the foundation of financial accountability.
The right to information, which makes the other controls usable by supplying the material on which scrutiny depends.
Sectoral regulators, exercising continuous oversight in telecom, electricity, securities, insurance and competition.
Public interest litigation, which converts a diffuse public grievance into a justiciable proceeding.
The press and public opinion, which supply the political pressure without which formal findings are seldom acted upon.

6. Where the Gaps Lie

The complaint	Which control reaches it
The decision was beyond power or procedurally unfair	Judicial
The rule exceeds the parent Act	Judicial, and legislative through laying and committee scrutiny
The policy is unwise	Legislative only; the courts will not examine wisdom
Money was wasted though lawfully spent	Audit and the Public Accounts Committee; not the courts
The official was rude, dilatory or incompetent	Internal discipline and grievance mechanisms; not the courts
The official was corrupt	Vigilance, Lokpal or Lokayukta, and prosecution
The decision was taken but never communicated or implemented	Mandamus, and internal supervision
Nobody can tell who took the decision	Scarcely reached at all, which is the gap T.S.R. Subramanian addressed

⚠ The controls are complements, and the weakness of one is felt in the others

It is tempting to rank these mechanisms and treat judicial control as the most important because it is the most developed. The better view is that each is designed for something the others cannot do, and that a failure in one produces pressure on the rest. Where legislative scrutiny of delegated legislation is thin, more rules are challenged in court; where internal discipline is weak, courts are asked to supervise administration through continuing mandamus; where institutional watchdogs are unstaffed, public interest litigation takes their place. Much of what is criticised as judicial overreach is better understood as the displacement of work the other controls were meant to do, and the remedy for it lies as much in strengthening them as in restraining the courts.

7. The Position in Summary

Control over administration operates through the legislature, the executive itself and the judiciary, supplemented by audit, watchdog institutions, regulators, the right to information and public opinion.
Legislative control runs from the conferment of power through laying procedures and committee scrutiny to financial control and ministerial responsibility; re-promulgation of ordinances to avoid scrutiny is a fraud on the Constitution (Krishna Kumar Singh).
Executive power is co-extensive with legislative power and needs no statute for every act, control lying in collective responsibility to the legislature and in the requirement of law where rights are affected (Ram Jawaya Kapur).
The three controls differ in timing, initiator, subject matter, reach into merits, sanction, speed and coverage, and each has a characteristic weakness.
The gaps lie where no mechanism fits well: unwise policy, lawful waste, individual incompetence and, most seriously, decisions whose authorship cannot be established.

8. Related Topics and Provisions

Administrative Accountability (Topic 147): what accountability requires and why it is difficult.
Legislative Control over Delegated Legislation (Topic 42), Procedural Control (Topic 43) and Judicial Control (Topic 44).
Judicial Review of Administrative Action (Topic 88) and Grounds of Judicial Review (Topic 90).
Separation of Powers (Topic 10) and Checks and Balances (Topic 11).
Lokpal, Lokayukta, Central Vigilance Commission and the Right to Information: the institutional controls.
Constitution of India: Articles 32, 73, 77, 123, 148, 162, 166, 213, 226, 227 and 266 to 281.