Red Light and Green Light Theories

The strengths are obvious. It takes rights seriously, it produced the writ jurisdiction, the rules of natural justice and the grounds of review, and it supplies the answer when the administration behaves badly. Every doctrine in Module III of this book is a red light doctrine.

Its weaknesses are equally real, and an answer must state them. It is negative: it tells the administration what it may not do and gives no help in doing the job well. It assumes an opposition between State and citizen which does not fit a welfare State whose activity most citizens want. It is available only to those who can afford litigation and who know they have been wronged. And it arrives late, after the decision has been taken and the harm done.

The green light theory

The image is a traffic light showing green: the law's function is to let the vehicle through.

The theory is associated with the utilitarian and Fabian tradition in England, with writers such as Jennings and Robson, and later with Harlow and Rawlings' own account of it. It was in part a reaction against Dicey, whose hostility to administrative adjudication the green light writers regarded as a misunderstanding.

Its propositions are these.

1. The State is not an enemy but the means by which a community achieves what individuals cannot achieve alone: public health, education, social security, clean water.
2. The purpose of administrative law is therefore to facilitate that work, and to improve the quality of administrative decisions rather than to obstruct them.
3. The best controls are internal and in advance: good procedures, clear rules, trained officials, published criteria, internal appeals, inspection and audit.
4. Courts are not the ideal controllers. Judges are generalists, litigation is slow and expensive, and a judgment settles one case without improving the system that produced it. Specialised tribunals and the Ombudsman are preferred.
5. Discretion is not an evil. It is what allows an official to do justice in the individual case rather than apply a rigid rule to everyone.

Its strengths are that it addresses the vast majority of administrative decisions, which never reach any court; that it is preventive rather than remedial; and that it improves matters for everybody rather than only for the litigant. Modules II and IV of this book contain the green light material: the duty to publish rules, to consult, to give reasons, the Lokayukta, the Central Vigilance Commission, and the Right to Information Act.

Its weaknesses are that internal control can be self serving, since the body being controlled designs the control; that without an external check there is no guarantee against the determined abuse of power; and that "improving the quality of administration" is a matter of degree, whereas legality is not.

The amber light theory

Neither pure position survives contact with a real legal system, and the modern account, sometimes called the amber light or middle way, holds both.

It accepts that administrative power is necessary and that most of it should be facilitated, and it accepts that there must be an effective external check for the cases where the administration goes wrong. It looks for control that is preventive where possible and remedial where necessary, and it treats courts as the last line rather than the first.

Indian administrative law is amber light in practice, and this is the point to make in an answer about India. A court that insists on a hearing before an order is passed is preventing bad administration, not merely punishing it. A court that declines to substitute its own view for the administration's on a question of policy, as in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, is leaving the green light showing while keeping the power to turn it red.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, arose from admissions to the MBBS and BDS courses in the two government medical colleges of Jammu and Kashmir for 1988-89. In an earlier case the High Court had directed the State to entrust selection to a statutory independent body, and until that was done, to a body free from executive influence. The State issued a procedure order in 1987 constituting a Competent Authority. Unsuccessful candidates challenged the selection as violating the High Court's earlier directions, and the High Court allowed their petitions and issued a mandamus.

Held. Although separation of powers is not recognised under the Constitution in its absolute rigidity, the Constitution makers meticulously defined the functions of each organ, and the legislature, executive and judiciary have to function within their own spheres. Judicial review is a powerful weapon against unconstitutional exercise of power by the legislature and the executive, but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy, provided the executive keeps within its constitutional and statutory limits.

Why it matters here. It is the clearest Indian statement of the amber light position: the court asserts the power to strike down unlawful action and in the same breath refuses to run the administration. The case is treated more fully in [Separation of Powers].

The two theories side by side

A worked example

A municipal corporation demolishes an unauthorised structure without notice to the occupier.

A red light analysis asks: was there power to demolish, was the procedure prescribed by the statute followed, was there a hearing as natural justice requires, and if not the demolition order is quashed and the occupier gets a remedy in court.

A green light analysis asks a different set of questions: does the corporation publish the criteria on which it decides what is unauthorised, is there an internal appeal to a senior officer, is there a standing instruction requiring notice, is there an inspection system that would have caught the structure before it was built, and could the occupier complain to the Lokayukta without going to court at all.

An amber light analysis says both are needed: the published criteria and the internal appeal will dispose of ninety-nine cases, and the writ jurisdiction must remain for the hundredth.

Notice that the green light questions are the ones that would have prevented the demolition happening unlawfully, and the red light question is the only one that helps this occupier now. That is the whole argument in miniature.

What it does NOT mean

Green light does not mean the administration should be uncontrolled. It means the control should be built into the process rather than applied from outside afterwards. A writer who describes it as "pro government" and stops has misdescribed it.

Red light does not mean judges should run the country. It means the courts should be able to declare unlawful action unlawful. Asif Hameed shows that a strongly review minded court can still refuse to decide policy.

These are not rules of law. No court has adopted either theory by name, and neither can be cited as authority for a proposition. They are ways of explaining the pattern the decided cases make.

Quick revision

1. Red light: the State is a danger, administrative law controls it, the courts are the controller, control is external and after the event, discretion is to be confined. Dicey and Wade.
2. Green light: the State is the instrument of welfare, administrative law improves administration, control is internal and in advance through procedure, tribunals and the Ombudsman are preferred, discretion is useful. Jennings and Robson.
3. Amber light: both, with prevention where possible and judicial review as the last line. This is the Indian position in practice.
4. The image comes from Harlow and Rawlings.
5. Red light strength is protection of rights; weakness is that it is negative, late and available only to litigants. Green light strength is that it reaches every decision; weakness is that the controller and the controlled are the same body.
6. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: judicial review is a powerful weapon, but the court is not an appellate authority and may not advise the executive on policy.

Test yourself

1. Explain the red light and green light theories of administrative law. They are two views of the function of the subject, named after traffic lights by Harlow and Rawlings. The red light view sees administrative power as inherently dangerous and administrative law as a system of external control, exercised mainly by the courts after a decision is taken, whose purpose is to keep the executive within legal limits and protect individual liberty. The green light view sees administrative power as the means by which social goals are achieved and administrative law as a means of improving the quality of administration from within, through good procedure, clear published criteria, internal appeals, tribunals and the Ombudsman, with litigation as a last resort.

2. Which theory does Indian administrative law follow? Neither in a pure form. Indian law is best described as amber light. The courts have built an extensive apparatus of external control, including the writs, natural justice and the grounds of review, which is red light in character; but they have also insisted on procedures that prevent bad decisions being taken at all, and Parliament has created green light machinery such as tribunals, the Central Vigilance Commission, the Lokpal and Lokayuktas and the Right to Information Act. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, states the balance: the court will strike down action outside constitutional or statutory limits, but it is not an appellate authority and will not advise the executive on policy.

3. State two criticisms of the red light theory. It is negative, in that it tells the administration what it may not do without helping it do the job well, and it assumes an opposition between State and citizen that does not fit a welfare State. It also operates only after the event and only for those who can afford to litigate, so it leaves untouched the great mass of administrative decisions that never reach a court.

4. State two criticisms of the green light theory. Internal control is designed and operated by the very body being controlled, so it cannot be relied on against a determined abuse of power; and improving the quality of administration is a matter of degree, whereas the legality of an act is not, so the green light view has no clear answer to an official who acts outside the law.

5. Why is the amber light theory said to be a middle way? Because it accepts the green light premise that most administrative power is legitimate and should be facilitated by good procedure, and the red light premise that there must be an effective external check for the cases where the administration acts unlawfully. It prefers prevention where prevention is possible and keeps judicial review as the last line rather than the first.