The Rise of the Administrative State

Two things follow, and they are the whole justification for the subject.

First, the decisions cannot all be made by the legislature. Parliament cannot pass an Act for each ration card. It must lay down a policy and leave officials to apply it, which means officials must be given discretion, a power to choose between courses of action. Second, the disputes cannot all go to the ordinary courts, which are slow, expensive and unspecialised. So Parliament creates tribunals and appellate authorities to decide them.

Discretion in the hands of officials, and adjudication outside the ordinary courts, are exactly the two things that need controlling. Administrative law is the control.

The reasons for growth, one by one

The syllabus asks for the reasons for the growth of administrative law as a separate head, and an examiner expects a list that is explained rather than recited. There are eight that matter, and they overlap.

1. The change in the philosophy of the State. This is the root of the rest. Once the State accepts that it is responsible for whether people are fed, housed, employed and educated, it must acquire the powers to deliver those things, and powers of that size have to be supervised.

2. The inadequacy of the legislature. A legislature sits for a limited number of days, its members are not technical experts, and its procedure is slow and public. It cannot write the detailed rules for the safety of a nuclear installation, or revise the price of a drug every quarter. So it delegates. Delegated legislation is treated in [Delegated Legislation and Why It Grew].

3. The inadequacy of the ordinary courts. A civil suit is expensive, formal and slow. A workman injured in a factory, or a tenant facing eviction, cannot wait years. Tribunals were created to be quick, cheap and specialised, and they are treated in [Administrative Tribunals: Nature and Characteristics].

4. The need for flexibility. An Act of Parliament is rigid; it can be amended only by Parliament. Administrative rule making lets the executive respond to a famine, a currency crisis or an epidemic in days.

5. The scope for experiment. Administrative processes can be tried, evaluated and abandoned without the political cost of repealing a statute.

6. Technicality. Broadcasting spectrum, drug pricing, electricity tariffs, telecommunications interconnection and environmental standards are not subjects on which a general court or a general legislature has any advantage. They need bodies staffed by people who understand them.

7. Preventive action. The older law worked by punishment after the event. The modern State prefers to prevent: it licenses the shop before it opens, inspects the factory before the accident, and grants or refuses permission to build. Preventive administration means decisions taken in advance about individuals, and those decisions need controls.

8. The volume of public employment and public money. The State is the largest employer and the largest purchaser in the country. Every promotion, dismissal, tender and subsidy is a decision capable of being challenged.

The Indian Constitution chose the welfare State expressly

This is the part most competing notes leave out, and it is the part that makes the whole story Indian rather than borrowed.

India did not drift into the welfare State. The Constitution commits the country to it in Part IV, the Directive Principles of State Policy. Directive Principles are the provisions in Articles 36 to 51 which set out goals the State is to pursue. They are not enforceable in a court, and Article 37 says so, but Article 37 also says they are "fundamental in the governance of the country" and that it shall be the duty of the State to apply them in making laws.

Four of them are the charter of the Indian administrative State.

Read those four together and the conclusion is unavoidable. A State told to secure a living wage, to prevent the concentration of wealth, and to provide for the sick and the old, must have licensing powers, inspection powers, taxing powers, powers to fix prices and wages, and powers to run industries. The Constitution therefore willed the administrative State into existence, and administrative law is the price of it.

A worked example: one licence, and every issue in the subject

Meera Kulkarni applies to the Food and Drugs Administration for a licence to open a retail chemist's shop in Thane. The Act says a licence may be granted to a person who has a qualified pharmacist, suitable premises and adequate storage, and adds that the licensing authority "may refuse a licence if it considers that the grant would not be in the public interest". The authority refuses her application in a letter of one sentence, giving no reason. It grants a licence the same week to a shop fifty metres away.

Notice how many separate questions that single refusal raises, and where each is answered in this book.

1. Where did the authority get the power at all? From the Act, and from rules made under it. Whether those rules are valid is [Judicial Control over Delegated Legislation].
2. The words "may refuse ... if it considers" confer discretion. Whether discretion so wide is lawful, and how it must be exercised, is [Administrative Discretion and Why It Is Conferred].
3. Meera was never told what was held against her and never heard. That is [Audi Alteram Partem].
4. She was given no reasons. That is [Reasoned Decisions].
5. The neighbouring shop was treated differently on the same facts. That is arbitrariness under Article 14, and the grounds are in [Grounds of Judicial Review: Abuse of Discretion].
6. If the officer who refused had a relative in the neighbouring shop, that is [The Rule Against Bias].
7. If she wants the file, she can ask for it under the Right to Information Act 2005: [Obligations of Public Authorities and How a Request Is Made].
8. If she goes to court, the remedy she asks for is a writ: [Judicial Remedies against Administrative Arbitrariness: the Writs].
9. If the State is liable for the loss she suffered, that is [Tortious Liability of the State].

That is the syllabus, arising out of one letter about one shop. Administrative law is not a collection of unrelated topics. It is the set of answers to the question: what may an official do to Meera, and what can Meera do about it.

What this does NOT mean

It does not mean the State is the enemy. A student who reads only the case law comes away thinking administrative law exists to defeat the administration. It does not. Most administrative power is exercised properly and is the reason the ration reaches the shop and the water is fit to drink. The law supplies the controls that make the power tolerable, not the hostility.

It does not mean the welfare State is a modern Indian invention. The transformation happened across the world between roughly 1880 and 1950, and India's version is continuous with the British administrative machinery it inherited.

It does not mean administrative law is only about litigation. A great deal of it is about how decisions are structured before anybody goes to court: publication of rules, reasons, hearings, and the duty to disclose. The litigation is the visible tip.

Criticism, and the honest position

The growth of the administrative State has always had critics, and an answer that only praises it is a weak answer. The strongest objections are these. Wide discretion in officials means unequal treatment, because two officers apply the same words differently. Decision making moves out of public view into files. Tribunals staffed by administrators may lack independence, which is the concern of [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021]. And rules made by departments escape the scrutiny that a Bill receives.

The answer is not to wish the administrative State away, since the functions it performs are the ones the Constitution requires. The answer is the body of controls this book teaches. That is why the two theories in [Red Light and Green Light Theories] matter: they are two views of what those controls are for.

Quick revision

1. Laissez faire State: defence, order, revenue, justice. Welfare State: the same plus responsibility for material well being.
2. The transformation created two problems: officials with discretion, and adjudication outside the courts. Administrative law controls both.
3. Eight reasons for growth: change in State philosophy, inadequacy of the legislature, inadequacy of the courts, need for flexibility, room for experiment, technicality, preventive action, and the scale of public employment and spending.
4. India adopted the welfare State expressly through the Directive Principles: Articles 38, 39, 41 and 43.
5. Article 37: Directive Principles are not enforceable by a court but are fundamental in the governance of the country.
6. The strongest criticism is unequal treatment through wide discretion and the loss of public scrutiny. The answer is control, not abolition.

Test yourself

1. What is meant by the transformation from a laissez faire State to a welfare State, and why did it produce a new branch of law? Laissez faire means "leave it alone": a State confined to defence, order, revenue and justice. A welfare State takes responsibility for the material well being of its people and so must regulate, license, provide and employ. Delivering those functions required officials to be given discretion and required disputes to be decided outside the ordinary courts. Administrative law is the body of law developed to control discretion and to supervise adjudication outside the courts.

2. Give five reasons for the growth of administrative law. Any five of: the change in the philosophy of the State; the legislature's inability to make detailed and technical rules; the cost, delay and formality of the ordinary courts; the need for flexible rules that can be changed quickly; the room administrative processes give for experiment; the technical nature of modern regulation; the shift from punishing after the event to preventing before it; and the sheer volume of decisions the State takes as employer and purchaser.

3. Which provisions of the Constitution show that India chose the welfare State? The Directive Principles in Part IV, in particular Article 38 (social order and reduction of inequality), Article 39 (livelihood, distribution of material resources, no concentration of wealth, equal pay), Article 41 (right to work, education and public assistance) and Article 43 (living wage and decent conditions). Article 37 makes them unenforceable in a court but fundamental in the governance of the country.

4. "Administrative law exists to obstruct the administration." Comment. The statement is wrong as a description and confuses control with obstruction. Administrative power is necessary because the Constitution commits the State to functions that cannot be performed without it. Administrative law supplies conditions on the exercise of that power, such as a hearing, reasons, relevant considerations and an absence of bias, which make wide power tolerable. Whether the emphasis should fall on controlling the administration or on enabling it is the dispute between the red light and green light theories.

5. Why could the ordinary civil courts not simply be given all these disputes? Because of cost, delay, formality and the absence of specialised knowledge. A civil suit is unsuited to a workman's compensation claim or a tariff dispute, both of which need quick and expert decision. That is why tribunals were created, and why their independence then became a problem of its own.