The Influence of British Administrative Law over Indian Administrative Law

Introduction:

The Origin & development of the Indian Judiciary can be traced since the advent of the Britishers. Although it will be wrong to consider and credit the Colonial Rule for the judiciary’s development in its entirety. But it won’t be wrong to say that the English Laws served as the foundation stone of the Indian Judiciary. The British Laws provided the initial framework of our Judiciary.

But the application of such Principles/Rules/Regulations/Laws prevalent in the UK didn’t help the subjects of this nation because of the then differences in the socio-economic conditions of the Britishers and the Indians. It was largely contented that such an imposition of British Doctrines wasn’t well suited for the Country.

But there happens to be several British Doctrines & Legislations which we derived, after making necessary modifications, for the well-being of the general public. The Indian Administrative Law, which developed in the meanwhile has some flavors of the British made laws.

In the 21st Century, with the rising popularity in favor of a Welfare State and more and more delegation of the powers to the Executive, the importance of the Administrative Law becomes imminent. In the present article, we will try to focus on the influence of the English Administrative Laws over the Indian Administrative Laws.

From a Historical Perspective

Till the 19th Century, the United Kingdom was engaged in two major tasks, one being the maintenance of the country’s law and order and another one being, protection of the country from foreign invasions/attacks.

There were feudal lords in England then, and the social relations between the people were less complicated. There were laws for governing the people but most of them were customary. But things changed after the rapid industrialization in Western societies, making the society a complex matrix. With more and more number of people getting settled in the major towns, there was a growing need for new regulations of the state authorities to plan the towns, maintain the healthcare facilities, educational sectors, sewerage plans, and vice-versa. Then came the 21st century, with a new concept of a ‘Welfare State’.

So, under these circumstances, the functions of the state grew. And with the increase in the functions of the state, there was a great need for new legislation and a structured governmental authority in order to serve society properly. Hence, there was also a necessity for new legal doctrines to properly administer and check the misuse of power/position by the executive authorities in the discharge of their duties. With this, came a new sphere of law, called the Administrative Law.

At the beginning of the 20th century, After the theories propounded by Dicey in his The Law of the Constitution, there was great opposition to the large delegation of parliamentary powers to the executive. Matters seemed uncontrollable when the then Chief Justice of England, Lord Hewart published the New Despotism in 1929.

Countering this, the British Government set up the Committee on Ministerial Powers under the Chairmanship of Lord Donoughmore in order to scrutinize such complaints and criticisms leveled. Although the arguments of Lord Hewart were dismissed, the Committee assented to the view that there should proper machinery to control and check the powers of the executive upon whom the parliamentary powers are being delegated.

The Committee was of such a view because it was well aware of the fact that with the increase in the functions of the state, it was necessary to delegate some of the powers to the other organs in order to ensure the smooth functioning of the administration. But such delegation must go through some tests which will keep the powers of the executive under control. Now, the Parliament is entitled to exercise such control over the executive, but due to its lack of time, it can’t.

Hence, in the larger interest of the people concerned, it became the natural duty of the judges to ensure that there is a proper delegation of such powers and there isn’t any misuse of such powers by the executive authorities.

Rule of law

The concept of Rule of Law is the bedrock of Administrative Law. Over a period of time, the concept has been operationalized as meaning absence, or at any rate diminution, of arbitrariness or overuse of the powers conferred.

The Constitution of India glorifies many facets of this doctrine in a number of the provisions contained, including those of Part III which guarantees fundamental rights.

In 1885, based on Dicey’s writing on the British Constitution, three distinct ideas of the Rule of Law flourished.

• Absence of Arbitrary exercise of Power: The powers conferred upon the authorities mustn’t be unlimited or uncontrolled. And its exercise must follow a definite guideline, in order to balance both administrative efficiency and safeguarding the rights of a common man.
• Equality before Law: Every man is subjected and subservient to the Law of the Land. There shouldn’t exist any distinction among the people in terms of the applicability of the laws. Everyone should be equal before the Law of Land.
• Liberty of Individuals: The Law should guarantee the liberty of the individuals. And any action of the state must conform to the general guideline of safeguarding individual liberties first. Individual liberty is a must for any welfare state.

The basic principles governing the administrative law has been discussed by the Apex Court in the case of Tata Cellular v. Union of India ^[1] [(para 113) (SCC pp. 687-88, para 94)]

1. The modern trend points to judicial restraint in administrative action;
2. the Court does not sit as a court of appeal over administrative decisions, but merely reviews the manner in which the decisions were made;
3. the Court does not have the expertise to correct administrative decisions. If a review of the administrative decisions is permitted, it will be substituting its own decision without the necessary expertise, which itself may be fallible;
4. a fairplay in the joints is a necessary concomitant for administrative functioning.
5. However, the administrative decision can be tested by application of the Wednesbury Principle of Unreasonableness and must be free from arbitrariness, bias, or mala fides.

For the purpose of checking the powers of the executive, generally, two types of controls are sought; One stands for statutory control and another one for non-statutory control. Generally, the statutory controls are covered under the statute (or rules/regulations formed under/by the statute). If any action, taken by the executive while discharging its duties supersedes/violates the same, then it’ll be considered either illegal/arbitrary by the concerned courts, applying the Doctrine of Ultra Vires. Now keeping aside, the statutory controls, the power of the executive is kept under a watch by applying the non-statutory controls in it. This part forms the buttress of the Administrative Law. These Non-statutory controls have evolved out of a process of continuous judicial innovation & interpretation of a number of doctrines of Law.

Some of these are mentioned below:

1. The Wednesbury principle of reasonableness
2. Doctrine of Promissory Estoppel
3. The Legitimate Expectation
4. Doctrine of Proportionality
5. The Rules of Natural Justice

Wednesbury Principle

Till 1947, the general law prevalent in the Courts of Justice of the United Kingdom was that the Courts could interfere or intervene in matters pertaining to the judicial or quasi-judicial decisions and the legality of any administrative decisions was left untouched by them. This attitude of the courts got changed after Lord Greene’s famous decision in the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (All ER pp. 682 H-683 A)^[2] in which it was said:

“A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.”

The aforementioned observation in the concerned case puts forward a doctrine, which we commonly refer to, as the Wednesbury principle. Whenever the courts intervene in the matters pertaining to the executive orders/rules/conduct & set aside such directions, it makes sure that such an order/rule/conduct by the executive passes the test of Wednesbury unreasonableness.

Conferment of the unfettered or uncontrolled discretion on the administration would amount to inconsistency as of Article 19^[3] of the Constitution and will run parallelly opposite to the principles governing Article 19 of the Indian Constitution, under which only reasonable and non-arbitrary restrictions by the executive upon the conferred rights is permissible. Simultaneously, it will be in complete violation of the Principle of Article 14 which prohibits & uproots arbitrariness in its entirety.

In Shalini Soni v. Union of India, ^[4] the Supreme Court observed: (SCC p. 549, para 7)

“It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”

Natural Justice

Originally, two rules of Natural Justice were predominant.

1. Audi alteram partem
2. The rule against bias.

Audi alteram partem

The maxim Audi alteram partem, evolved through centuries of Western historical experience, is now a major constituent of all civilized legal systems. But in its operationalization, it has been attended with many a fascinating twist and turns in different legal systems. Much has depended from time to time on the ability of courts to classify functions as purely administrative and quasi-judicial. The requirement of a hearing to the affected individual is seen to be a necessity of justice, particularly attaching to action which has the effect of adjudicating rights or status through the exercise of public power. But the drawing of the lines has been a difficult, and often an agonizing, process for courts everywhere, as it has invariably entailed subjective appreciation of peculiar fact situations rooted in the desire somehow to “balance” accountability in administration with efficiency. ^[5] 

Bias

The Courts of India have generally followed the classification of bias situations, as violative of Nomo judex rule, into three categories: personal, pecuniary, and official or departmental. The test formulated in respect of all the three types for proof of bias is the test of “reasonable likelihood” of a biased exercise of decision-making power or discretion. This formulation demands a substantial demonstration of the possibility of bias.^[6]

But, in the meanwhile there is a continuation of the development of some rules of the Natural Justice, for instance: – The administrative authorities should cite the reasons for any such decisions which has the tendency of affecting the rights & liabilities of the citizens of which can turn out to be detrimental to the interests of the citizens concerned.

Till the year 1964, the position of the law regarding the rule Audi alteram partem in England was that in the proceedings, both judicial and quasi-judicial, there should be given an opportunity of hearing to the people, although it wasn’t prioritized in the matters of administrative proceedings.

The Transition in the legal standpoint occurred after the pronouncement of Ridge v. Baldwin^[7], where the House of Lords was of opinion that if any order or direction of the executive authority has a tendency to affect the rights and liabilities of the citizens, then in such circumstances, the opportunity of hearing their grief as well as arguments should be given to the citizens.

This postulate of the House of Lords was accepted by the Apex Court in the matter of State of Orissa v. Dr. Binapani Dei^[8] and State of Maharashtra v. Jalgaon Municipal Council^[9], wherein it was propounded that the orders of the administration involving civilconsequences have to be considered consistently, conforming with the principles of natural justice. The expression “civil consequences”should mean ‘where rights and liabilities are affected.’ Thus, before blacklisting a person he must be given a hearing.

The requirement of citing reasons in the decisions as well as directions of the administration, which affects/can affect the guaranteed rights and liabilities, has been considered mandatory by the Supreme Court in the matter of S.N. Mukherjee v. Union of India^[10]. It reduces the scopes of arbitrary exercise of powers on the part of the authorities, as the reasons, duly recorded by the authorities will be subject to judicial scrutiny by the higher courts or authorities.

Doctrine of proportionality

“By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve.” ^[11]

In the State of Madras v. VG. Row^[12],

“The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict…”

This doctrine started gaining momentum in other nations and it was applied and developed in England as noticed by Lord Diplock in the case of R. v. Secretary of State for the Home Department, Ex Brind.^[13]

Conclusion

Even a bare review of the Indian principles of administrative law is a very daunting exercise. It is not just because the law is developing as a cascade of ad hoc judicial responses to the problems of structuring and confining administrative power and discretion. What makes the task daunting is that the attempt to control the overuse of power and uncontrolled discretion in our country goes beyond usual limits. It is doubtful whether the Courts of Justice anywhere have been powerful instrumentalities of synthesizing a spirit of legality in the exercise of public power unless they are aided and regulated by the political dispensation, endorsing the spirit of accountability.

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References:

^[1] Tata Cellular v. Union of India, 1996 AIR 11, 1994 SCC (6) 651

^[2] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

^[3] Art.19,the Constitution of India

^[4] Smt. Shalini Soni Etc vs Union of India & Ors. Etc 1981 AIR 431, 1981 SCR (1) 962

^[5] Upendra Baxi, Developments in Indian Administrative Law, 156

^[6] Ibid, at 160

^[7] Ridge v Baldwin [1964] AC 40, House of Lords

^[8] State Of Orissa vs Dr. (Miss) Binapani Dei & Ors, 1967 AIR 1269, 1967 SCR (2) 625

^[9] State Of Maharashtra & Ors vs Jalgaon Municipal Council & Ors, Appeal (civil) 1296-1297 of 2003

^[10] S.N. Mukherjee vs Union of India, 1990 AIR 1984, 1990 SCR Supl. (1) 44

^[11] Om Kumar And Ors vs Union of India, Special Leave Petition (civil) 21000 of 1993

^[12] State Of Madras vs V.G. Row.Union Of India & State, 1952 AIR 196, 1952 SCR 597

^[13] R. v. Secretary of State for the Home Department, Ex P.Brind. [1991] 2 WLR 588, [1991] 1 AC 696, [1991] UKHL 4, [1991] AC 696, [1991] 1 All ER 720