How Administrative Law Grew: England, United States, France and India

The English position today is a fully developed administrative law with a specialised Administrative Court within the ordinary High Court, a unified tribunals structure, and a Parliamentary Commissioner for Administration, the Ombudsman.

The United States

The American story is different in three ways, and each is examinable.

A written constitution with a strict separation of powers. Articles I, II and III of the Constitution of 1787 vest legislative, executive and judicial power in three separate branches. That produced the non-delegation doctrine: if legislative power is vested in Congress, Congress cannot give it away. American courts have therefore always been more anxious about delegation than English courts, and the doctrine of an "intelligible principle" which the delegate must be given is their answer. The Indian doctrine of essential legislative function in [Excessive Delegation: Permissible and Impermissible Delegation] is a cousin of it.

Regulation through independent commissions. From the Interstate Commerce Commission of 1887 onwards, the United States regulated railways, trade, securities, broadcasting and labour through independent commissions, which combined rule making, investigation and adjudication in one body. That combination of functions is precisely what the red light theory objects to, and American administrative law grew up around it.

Codified procedure. The Administrative Procedure Act 1946 is the great difference from England and India. It lays down, by statute, how agencies must make rules, how they must adjudicate, and on what grounds a court may set their action aside. India has no equivalent, which is why Indian administrative law is judge made: see [What Administrative Law Is: Definition, Nature and Scope].

France: droit administratif

This is the part of the syllabus students cannot answer, and it is the part examiners like, so learn it properly.

Droit administratif means, simply, administrative law, but the words are kept in French because the French institution is not the same as the English one. Its distinguishing feature is that disputes between a citizen and the administration are decided not by the ordinary civil courts but by a separate hierarchy of administrative courts, at the head of which stands the Conseil d'Etat, the Council of State.

How it arose. After the Revolution, French law separated the administration from the ordinary courts, in part from distrust of the old judiciary, which had obstructed reform. The ordinary courts were forbidden to interfere with the administration. That left citizens with no remedy, so the Conseil d'Etat, originally an advisory body attached to the executive, developed the function of hearing complaints against the administration, and over the nineteenth century turned itself into a genuine court.

Its features, which are what an answer needs:

1. A separate system of administrative courts, with the Conseil d'Etat at the top, and a Tribunal des Conflits to decide which system a case belongs to.
2. The law applied is not the ordinary civil law but a body of rules developed by the administrative courts themselves for the relations between the administration and the citizen.
3. It is judge made, built case by case by the Conseil d'Etat, and in that respect it resembles Indian administrative law more than the codified French civil law does.
4. Its members are trained administrators as well as lawyers, so the court understands the administration it supervises.
5. It is, by common consent, generous to the citizen: the remedy for excess of power is readily available, and State liability is wider than at common law.

Dicey's mistake, and why it matters. Dicey treated droit administratif as a system of privilege that placed officials beyond the ordinary law and protected them from liability. That was wrong on the facts. The Conseil d'Etat has often been more effective in controlling the administration than the English courts were, and French State liability was in some respects wider than English liability at the same date. Dicey later modified his view. The examiner's question is usually "was Dicey right about droit administratif?", and the answer is no, with those reasons.

India

Before 1947. The Company and then the Crown administered India through a service with very wide powers, and much of the modern statutory machinery, the Police Act, the Land Acquisition Act, the Civil Procedure Code and the various municipal Acts, dates from that period. The High Courts established in 1861 had power to issue the prerogative writs within the presidency towns, so English administrative law arrived with the English courts, but the writ jurisdiction did not extend to the whole country.

The Constitution changed everything, in three ways.

1. Articles 32 and 226 made the writ jurisdiction universal and, in the case of Article 32, itself a fundamental right. No English court has a jurisdiction guaranteed against Parliament in that way. This is the single largest difference between English and Indian administrative law.
2. Part III supplied substantive standards. Article 14 makes arbitrariness unlawful, Article 19 limits restrictions on freedoms, Article 21 requires a fair procedure. In England the courts had to construct such standards out of the common law; in India they are written down and entrenched.
3. Part IV committed the State to the welfare functions that make administrative power necessary, as set out in [The Rise of the Administrative State].

The growth since 1950 has run through judicial decisions, and the milestones are the chapters of this book: the classification of functions, the extension of natural justice to administrative action, the doctrine of essential legislative function, the creation of tribunals under Articles 323A and 323B, the development of legitimate expectation and proportionality, and the statutory machinery of the Lokpal, the Central Vigilance Commission and the Right to Information Act.

English and Indian administrative law compared

The syllabus lists this as its own head, so it deserves its own table.

The one sentence to take away: English administrative law rests on the common law and can be altered by Parliament; Indian administrative law rests on the Constitution and cannot.

The four systems at a glance

What it does NOT mean

It does not mean England had no administrative law before 1932. It had the prerogative writs from the middle ages. What it lacked was recognition and a name.

It does not mean droit administratif is a system of official privilege. That was Dicey's charge and it was mistaken. The Conseil d'Etat is a court, and a demanding one.

It does not mean India merely copied England. India took the writs and the doctrines, and then placed them on a constitutional foundation England does not have, which changes what the courts can do when Parliament tries to exclude them.

Quick revision

1. England: Dicey denied administrative law existed; the prerogative writs were always there; Committee on Ministers' Powers 1932, Franks Committee 1957, revival of judicial review from the 1960s.
2. United States: strict separation of powers, the non-delegation doctrine and the intelligible principle, regulation through independent commissions, and the Administrative Procedure Act 1946.
3. France: droit administratif, a separate hierarchy of administrative courts headed by the Conseil d'Etat, with the Tribunal des Conflits allocating cases; judge made, expert and generous to the citizen. Dicey misunderstood it.
4. India: English machinery plus a constitutional foundation. Articles 32 and 226 make review universal, Article 32 is itself a fundamental right, and Part III supplies written standards.
5. English against Indian: common law and a sovereign Parliament against a supreme Constitution, which is why an ouster clause is a construction question in England and a constitutional question in India.
6. Neither England nor India has a codified administrative procedure; the United States does.

Test yourself

1. What is droit administratif, and was Dicey right about it? Droit administratif is the French system under which disputes between the citizen and the administration are decided by a separate hierarchy of administrative courts headed by the Conseil d'Etat, applying a body of rules developed by those courts rather than the ordinary civil law, with a Tribunal des Conflits to decide which hierarchy a case belongs to. Dicey treated it as a system of privilege placing officials beyond the ordinary law, and he was wrong: the Conseil d'Etat is a genuine court which has often controlled the administration more effectively than the English courts did, and French State liability was in some respects wider than English liability. Dicey later modified his view.

2. Trace the growth of administrative law in England. English lawyers long denied that administrative law existed, following Dicey's view that everyone is subject to the ordinary law in the ordinary courts. The denial was inaccurate, since the prerogative writs of certiorari, prohibition, mandamus, habeas corpus and quo warranto had always controlled inferior bodies. From the nineteenth century onwards, social legislation created officials with wide powers and tribunals to decide the resulting disputes. The Committee on Ministers' Powers reported in 1932 on delegated legislation and administrative adjudication, the Franks Committee reported in 1957 and required openness, fairness and impartiality in tribunals, and judicial review revived from the 1960s.

3. Distinguish English administrative law from Indian administrative law. England has an unwritten constitution and a sovereign Parliament, so the power of judicial review rests on the common law and could in principle be curtailed by statute, and the standards of review were built out of the common law. India has a written and supreme Constitution: the writ jurisdiction is conferred by Articles 32 and 226, Article 32 is itself a fundamental right, the substantive standards are written into Articles 14, 19 and 21, and an attempt to oust judicial review runs into constitutional limits rather than mere questions of construction. Neither country has a codified administrative procedure.

4. What is the significance of the United States Administrative Procedure Act 1946 for a student of Indian administrative law? It is the contrast that explains why Indian administrative law is judge made. The American Act prescribes by statute how agencies make rules, how they adjudicate and on what grounds a court may set their action aside. India has no equivalent, so the rules of natural justice, the grounds of review and the limits on delegation had to be worked out by the courts case by case, and they continue to change as the courts change their minds.

5. Why did the four countries answer the same question differently? The question in each was whether citizen against State disputes should go to the ordinary courts or to special courts. England answered the ordinary courts, from distrust of any special regime for officials. France answered special courts, from distrust of the ordinary judiciary after the Revolution. The United States kept the ordinary courts but placed regulation in independent commissions and then codified their procedure. India kept the ordinary courts, added tribunals under Articles 323A and 323B, and guaranteed access to the courts by the Constitution itself.