Judicial control over public administration
Public administration exercises a large volume of power to meet the citizens need in modern democratic welfare state. Today administration is not concerned with only pure administrative function but also involved with a large number of quasi-legislative and quasi-judicial functions. In this respect they have a number of chances to become arbitrary or master of the citizens. So it is very necessary to control them. By judicial control is meant the power of the courts to examine the Legality of the officials act and thereby to safeguard the fundamental and other essential rights of the citizens.
The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion, which is correct in the eye of law. It comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by a public authority which is inconsistent or in conflict with the basic law of the land The role of judiciary in protecting the citizens against the excesses of officials has become all the more important with the increase in the powers and discretion of the public officials in the modern welfare states. But the courts cannot interfere in the administrative activities of their own accord.
They can intervene only when they are invited to do so by any person who feels that his rights have been abrogated or are likely to be abrogated as a result of some action of the public official. Secondly, the courts cannot interfere in each and every administrative act, as too much of Judicial action may make the official too much conscious and very little of it may make them negligent of the rights of citizens.
Generally judicial intervention in administrative activities is confined to the following cases:
a) Lack of Jurisdiction:
If any public official or administrative agency acts without or beyond his or her authority or jurisdiction the courts can declare such acts as ultra-virus. For instance, according to administrative rules and procedures, in all organizations, the competent authority is identified for taking decisions and actions. If any authority or person other than the competent authority takes action, the court’s intervention can be sought under the provisions of lack of jurisdiction.
b) Error of Law:
This category of cases arises when the official misconstrues the law and imposes upon the citizen obligations, which are absent in law. This is called misfeasance in legal terminology. The courts are empowered to set right such cases.
c) Error of Fact:
This category of cases is a result of error in discovering cases and actions taken on basis of wrong assumptions. Any citizen adversely affected by error of judgment of public official can approach courts for redressal.
d) Error of Procedure:
“Due procedure” is the basis of governmental action in a democracy. Responsible government means a government by procedure. Procedure in administration ensures accountability, openness and justice. Public officials must act in accordance with the procedure laid down by law in the performance of the administrative activities. If the prescribed procedure is not followed the intervention of the courts can be sought and legality of administrative actions can be questioned.
e) Abuse of authority:
If a public official exercises his or her authority vindictively to harm a person or use authority for personal gain, court’s intervention can be sought. In legal terms, it is called malfeasance. The courts can intervene to correct the malfeasance of administrative acts.
Forms of Judicial control over public Administration
The judicial review implies the power of the courts to examine the legality and constitutionality of administrative acts of officials and also the executive orders and the legislative enactments. This is very important method of judicial control The statutes made by Parliament and State Assemblies itself provide that in a particular type of administrative action,’ the aggrieved party will have a right of appeal to the courts or to a higher administrative tribunal.
Sometimes, legislative enactment itself may provide for judicial intervention in certain matters.
Statutory Appeals The statutes made by Parliament and State Assemblies itself provide that in a particular type of administrative action the aggrieved party will have a right of appeal to the courts or to a higher administrative tribunal. Sometimes, legislative enactment itself may provide for judicial intervention in certain matters. The
State is liable for the tortuous acts of its officials in respect of the non-sovereign functions only.
Criminal and Civil Suits against Public Officials
In India civil proceedings can be instituted against a public official for anything done in his official capacity after giving two months notice. When criminal proceedings are to be instituted against an official for the acts done in his official capacity, previous sanctions of the Head of the State i.e., the President or the Governor is required. Some functionaries like the President and the Governor are immune from legal proceedings even in respect of their
personal acts. Ministers, however, do not enjoy such immunity.
Apart from the methods of judicial control already discussed, there are the extraordinary remedies in the nature of writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Waranto. These are called extraordinary remedies because the courts grant these writs except the writ of Habeas Corpus, in their discretion and as a matter of right and that too when no other adequate remedy is available. A writ is an order of the court enforcing compliance on the part of those against whom the writ is issued. In India these writs are available under the provisions of the Constitution. While the Supreme Court is empowered to issue these writs or orders or directives only for the enforcement of Fundamental Rights, the High Courts are empowered to issue these writs not only for the enforcement of Fundamental Rights but also for other rights. We will discuss these writs now.
Habeas Corpus literally means to have the body of. This writ is an order issued by the court against a person who has detained another to produce the latter before the court and submit to its orders. If it is found that the person in unlawfully or illegally detained, he will be set free.
Mandamus literally means command. If a public official fails to perform an act which is a part of his public duty and thereby violates the right of an individual, he /she will be commanded to perform the act through this writ.
It is a judicial writ issued by a superior court to an inferior court, preventing it from usurping jurisdiction, which is not vested with it. While Mandamus commands activity, Prohibition commands inactivity. This writ can be issued only against judicial or quasijudicial authorities to prevent exercise of excess of jurisdiction by a subordinate court. As such, its significance as a method of judicial control over administration is limited.
While Prohibition is preventive; Certiorari is both preventive and curative. It is a writ issued by a superior court for transferring the records of proceedings of a case from an inferior court or quasijudicial authority to the superior court for determining the legality of the proceedings.
Literally, Quo Waranto means ‘on what authority’. When any person acts in a ‘public office’ in which he/she is not entitled to act, the court by the issue of this writ, will enquire into the legality of the claim of the person to that office. If the said claim is not well founded, he or she will be ousted from that office. It is, thus, a powerful instrument against the usurpation of’public offices’.
Limitations of judicial control over administration
The effectiveness of judicial control over administration is limited by many factors. Some of these limitations are:
1. Unmanageable volume of work:
the judiciary is not able to cope up with the volume of work. In a year the courts are able to deal with only a fraction of cases brought before it. Thousands of cases have been pending in Supreme Court, High Courts and Lower Courts for years together for want of time. There is an increase in the cases of litigation without a commensurate expansion of judicial mechanism. This excessive delay in the delivery of justice discourages many to approach the court. The feeling of helplessness results in denial of justice to many.
2. Post-mortem nature of judicial control:
In most of the cases the judicial intervention comes only after enough damage is done by the administrative actions. Even if the courts set right the wrong done, there is no mechanism to redress the trouble the citizen has undergone in the process.
3. Prohibitive Costs:
The judicial process is costly and only rich can afford it. There is some truth in the criticism of pro-rich bias of judicial system in India. As a result, only rich are able to seek the protection of courts from the administrative abuses. The poor are, in most cases, the helpless victims of the administrative arbitrariness and judicial inaction.
4. Cumbersome procedure:
Many legal procedures are beyond the comprehension of common man. The procedural tyranny frightens many from approaching the courts. Even though the procedures have a positive dimension of ensuring fair play, too much of it negates the whole process.
5. Statutory limitations:
the courts may be statutorily prevented from exercising jurisdiction in certain spheres. There are several administrative acts, which cannot be reviewed by courts.
6. Specialized nature of administrative actions:
The highly technical nature of some administrative actions act as a further limitation on judicial control. The judges, who are only legal experts, may not be able to sufficiently appreciate the technical implications of administrative actions. As a result, their judgments may not be authentic.
7. Lack of awareness:
In developing societies, most of the people who are poor and illiterate are not aware of judicial remedies and the role of the courts. As a result they may not even approach the court to redress their grievances. The courts which can intervene only when it is sought may be helpless in this situation. The general deprivation of people also results in deprivation of justice to them.
8. Erosion of autonomy of judiciary:
There is executive interference in the working of judiciary. The quality of judiciary mostly depends on the quality of the judges. The Law Commission made many recommendations to ensure the judicial standards of the bench. The suggestion to create Judicial Commission with responsibility for judicial appointments deserves serious consideration. In recent years, there are many allegations of corruption against judges. This undermines the prestige and the effectiveness of the judiciary.