Introduction:
“The administration of justice is the firmest pillar of government.”
In India where the law is supreme and liberty being one of the important elements, unlawful activities should not be a part of such society. However, sometimes executives are criticized for their unlawful actions which create the question of liberty of individuals. The primary concern of any government should be the welfare of its people. The administration which decides major policy decisions in a country gets criticized for its mal-administration. And so, the role of the judiciary comes into the administration. The two schools of thought explain the interference of law in the administration of a country. This article focuses on the concept of administrative law, the traffic light theories, and their analysis with reference to the administration.
Administrative Law
Administrative law, a branch of public law that prevents any abuse of power by the government body, both at the central and local level, in order to protect individual liberties.
Marbury vs.Madison [1]was the case decided by American Supreme Court, the first case to recognize judicial review, through which Indian court started applying the principle of administrative law.[2] Also, many political debates over judicial control and executive actions led to the development of new ideologies within administrative law. This led to the foundation of traffic light theories i.e., Red light and Green light theories. These theories were first used by Harlow and Rawkings in evaluating the objective of administrative law.
Red Light Theory
The red-light theory is believed to have its origin from the laissez-faire political tradition of 19th CE. According to this tradition, the executive power is under suspicion and is sought to minimize the encroachment of the state on the rights (especially property rights) of individuals.
Every parliament has a set of rules to follow, but if a government body does not follow the set norms and interferes with the interest of individuals, the court has a right to intervene, to control the acts of parliament so that they function lawfully. The principle of ‘self-correcting democracy’ and red-light theory are closely associated as in both ‘rule of law’ remains a prime concept. The law performs an important function of checks and balances.
If the executive body exceeds its powers, judicial intervention plays an important role. It helps in maintaining the political framework of the state. The red light theorists believe that the judiciary can be relied upon for examining the legality of executive action as the judiciary has its standard of independence. An individual can seek judicial review as a remedy to maladministration by the executive body, making the government responsible as per the rule of law.
As stated by Beatson et al, in red light theory courts and executive bodies are in opposition, ‘the former invoking the weapon of administrative law against the latter as part of an ongoing fight against the abuse of government power’[3]
In Ireland, in the case of Buckley vs Attorney General, the red-light principle was employed by the court. In this case, the High Court found Sinn Fein Funds Act,1947 to be unconstitutional. The court held that Section 10 of the Act violated the separation of power as it excluded the judiciary from hearing the case.
Green Light Theory
According to the green light theory, the executive body should be free from all kinds of restrictions or control as the executive body works for the welfare of its citizens so it cannot be suspected of committing unlawful activity, and hence courts should not control the executive power. The government body cannot function effectively if kept under judicial control. However, the court can intervene if the actions of the state are arbitrary. The theory looks for the alternative to the courts and holds that the law is not superior to politics. This theory prefers a democratic form of accountability.
Harlow and Rawlings identified excessive administrative-legal interventions as an obstacle to effective administration as “hair-splitting distinctions and terminological contortions”[4]
There have been circumstances in which courts do not involve in the administration process. As in the case of Meadow vs The Minister for Justice, Equality, and Law Reform, [5]the court’s hesitance to interfere was noticeable.
Through green light theory, the role of the courts would be minimized hence the burden over the courts could get lessened and efficiency in the executive function could increase if the executive function is in the right direction.
Difference between Red Light and Green Light Theory
- Red light theory demands the intervention of law in administration while green light theory questions the intervention of the court.
- The red light theory holds that the executive should be under control to avoid any kind of mal-administration. Green Light Theory does not believe in any kind of control on the executive body.
- The red light theory considers law superior to politics whereas Green Light Theory gives more importance to politics than law.
- The red light theory appears ‘politically conservative’ whereas the green light theory holds a ‘politically progressive’ view.
Analysis
Administrative law has a prime concern of protecting the interest of individuals within society from the biased or unconstitutional acts of the public administration through dealing with the power and functions and limiting the acts of the executive body if required. Effective executive administration is of utmost importance for the successful running of any country. The Red Light Theory brings to the light problem associated with the executive administration. The procedural impropriety, abuse of power by executive demands for the interference of judiciary in the administrative matters. The concept of Public interest litigation is a developing concept in India and red-light theory is mainly concerned with individual rights. The Red Light Theory which can also be called control-oriented theory is necessary in the current times. The recent few controversial bills drafted by the government have received criticism from the world, in such a case judicial control is a must to protect the integrity of the country. Judicial control will ensure that the government does not violate any provision of the constitution. Any administrative activity which violates norms, such activity should be prohibited by law. For example, in India, it has been a trend now to have ‘Hartals’ to fulfil the needs. However, sometimes these hartals cause public nuisance and loss to the economy. Even though the hartals are sometimes for good reason, the judiciary must have the power to intervene to prevent possible loss. The law should have greater power than politics. It is wrong to have administrative power superior to the law.
However, if the administration is free from the control it can meet policy objectives in a better way. The laws framed by the government are in accordance with the provisions of the constitution, rarely it happens that the law is unconstitutional. ‘The opposition criticizing the government’ is now like an established norm and this norm ensures that the government do not make biased law and opposition bring to the society the real flaw associated with the law. Hence judiciary should not control the administration process as the executive body follows the rules and regulations, and the judiciary completely being a different body from the legislature (politics), should not interfere unless the law hampers the liberty of people. For example, In India to be a Prime Minister, only minimum age criteria have to be followed whereas there is no maximum limit for his/her term and so Prime Minister could serve the nation for a long time. On the other hand, an employee of a government company or bank cannot provide its services to the nation for a long time, as the tenure has to be followed by them. Here, the question of ‘equality before the law’ arises. Green Light Theory shows that the law is superior to the executive.
It is difficult to decide who should have the last say – government or court. In India law is supreme. Law decides everything including the working of the government. Even though both the school of thought are contrary to each other but they have a common thing, the requirement for judicial intervention if the law is arbitrary. Protecting the interest of individuals from intervention is a must and administrative law deals with this intervention. There should be a check over the administrative state. Administrative bodies must have transparency so that there does not arise the question of judicial intervention. The green light theory favours internal control and believes uncontrolled nature in the administration would help provide better services to its people but at present time it is not a good option to prohibit the judiciary from controlling the government actions. As the public law aim for improving liberty red-light theory would be effective. The government needs to be held responsible for its unlawful acts. It doesn’t matter who involves in malpractice or abuse of power, the law is supreme. Sometimes executive bodies do not reveal the information to the general public stating that it does not come under the ambit of Right to Information, in such case judiciary must be kept aware of the happenings in the government as it could help control the maladministration of the government, if any, hence protecting the individual’s liberty.
Conclusion
The law must be above all as the law of a country decides where the country would be heading. The role of administrative law cannot be ignored. The red-light theory states the need for judicial intervention in an administration. Each authority should indeed be independent to work effectively but some sort of control over its working is essential. There is a dire need to have a system of checks and balances. The executive will not indulge in any mal-administration if they are answerable to the judiciary.
References:
[1] Transcript of Marbury v.Madison(1803)
[2] Ibid
[3] Jack Beatson, Mark Elliott and Martin Matthews, Administrative law text and material
[4] Harlow and Rawlings
[5] [2010]IESC 3
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