June 26

Cynthia Farid: Administrative Law in Postcolonial South Asia – Some thoughts on Legal History

South Asia’s contemporary scholarship on administrative law places considerable emphasis on courts and judicial review. Contrarily, Euro-American discourse is, among other things, preoccupied with quasi-judicial institutions. In South Asia, Institutions such as commissions are no doubt tasked with oversight of elections and other aspects of governance (often with very little autonomy). Nevertheless, Courts have been at the forefront of settling administrative jurisprudence. Notably for postcolonial South Asia, the administrative apparatus matured and consolidated prior to adoption of constitutions. Yet, much of the scholarship in the field does little to make this connection explicit. Interested scholars in the region ought to consider not just doctrine and case law but also institutional history and politics that have contributed to shaping the field.

The pre-eminence of courts in the adjudication of administrative matters is not simply the result of enumerated powers of review but also the product of historical experience. Separation of powers in theory and practice was as much a colonial problem as it is a postcolonial one. Institutional autonomy and independence were (are) not static spaces created by doctrine. Rather, shifting terrains of contestations and negotiations between institutional actors have and continue to determine the breadth of this autonomy. Politics of the legal complex also complicates this space. Therefore, institutional conflicts were (are) both between and within institutions.

Between 1861 to 1935, significant constitutional reforms progressively strengthened the independence of courts in British India. These were largely reactive responses to Indian agitation and other political pressures. Colonial conditions made it desirable to restate English law in a form clear and compact enough to be intelligible in a distant land. In addition, efforts to directly apply English legal principles would often be at odds with the larger colonial project—thereby forcing departure from English procedure in ways that suited the objectives of the government. One of the key corollaries of these developments was the relatively consistent tension between the judiciary and executive in demarcating institutional spheres of autonomy. In this regard, Queen v. Burah (1878) is a case in point. Although it settled the law regarding delegated/conditional legislation at the time, [1] its genesis lay in interbranch tensions between the judiciary and executive over jurisdictional control over certain territories. The Privy Council, taking into account the “peculiar circumstances of India”, ruled that Provincial legislatures had plenary authority within powers conferred upon them. This allowed delegation without requiring express authorization from the Imperial Parliament. Accordingly, the exercise of jurisdiction by the High Courts, was subject to and not exclusive of the general legislative power of the Governor-General in Council. Justice Markby of the Calcutta High Court later lamented that the Courts of England would have probably ruled conversely. This decision reflected the general tone of governance that favoured the executive. It clarified the rule of difference to be applied to the colonies, whereby English legal principles diverged in their application from England.

With the expansion and consolidation of the colonial state, Indian High Courts attempted to settle administrative matters by assuming jurisdiction and exercising powers of review. The doctrine of ultra vires featured quite prominently in cases that facilitated institutional consolidation and accountability of public officials. Good faith grounds and reasonableness of action were important considerations for reviewing official action.[2]A judicial officer could claim immunity if he acted or in good faith believed he was acting under authority in the course of duty.[3] If, however, the officer acted illegally or abused authorized discretionary powers due to improper motives, he would be guilty of a misdemeanour as under English law.[4] Improper motive was inferred either from the nature of the act or from the circumstances of the case. Some cases illustrative of the above include a Magistrate who failed to act reasonably, carefully, and circumspectly in the discharge of his duties;[5] a Collector who inflicted a fine where he had no jurisdiction and seized personal property;[6] and a Magistrate who without reason caused delay in proceeding with the trial of persons imprisoned by him.[7] Thus, one could argue that reasonableness in this context began to be reviewed in India from mid-nineteenth century onwards.

A distinctive jurisprudence began to develop in British India within the imperial constitutional framework. Two scholarly contributions of the early twentieth century stand out in this regard as examples. These are Tagore law lectures of 1917 and 1919 titled “Comparative Administrative Law” by two Calcutta High Court lawyers Dwarkanath Mitter and Nagendranath Ghose, respectively.[8] Both sets of these lectures emphasized a strong role for the Courts.

Mitter’s account refused to draw a rigid line between administrative law and constitutional law due to their many points of overlap. By his account, the difficulty of threading the maze of administrative statues in England is mitigated by the continuity of administrative traditions,” whereas “in India there is no similar continuity.”[9] Mitter attributed the lack of administrative tradition in India to practical matters of governance. For instance, civil servants and key officials, such as the law member of the Council responsible for advising the Governor General in Council, had a high rate of turnover as they pursued career ambitions within a limited term and often had little knowledge of Indian administration.[10] Mitter presents a paradox within Indian governance, stating “no government is better provided than the Government of India with an administrative machinery by which extreme dangers may be faced by extraordinary remedies.”[11] Yet “let these not lead anyone to suppose that the rule or supremacy of law does not obtain in India as it does in England…….[in India] one is struck by the extraordinary respect for legality which animates the government of India.”[12] Mitter also seems to be cautious of the respect for law easily degenerating into rigid legalism but relies on the extension of judicial power combined with institutional autonomy which “sets at nought the dogma of Separation of Powers.” Thus, Courts played an important role in making officials accountable for their conduct. Mitter attributes this role of the Court to have earned both reverence for the bench and popular confidence.[13]

Nagendranath Ghose, also a barrister (called to the bar by the Middle Temple), gave the second lecture in 1919. His corpus of work not only covered aspects of administrative regulation in India but also comparative administrative laws extending beyond the confines of Euro-America to places as far away as New Zealand. The comparative exercise entailed, inter alia, testing principles of administrative law under colonial conditions in India. The breadth of this undertaking was so impressive that it reportedly caused Felix Frankfurter to recommend it as one of “the most helpful books in English” on comparative administrative law.[14]This is instructive for two reasons. First, American reformers looking beyond Europe suggests an East to West circulation of ideas. Second, while the West was preoccupied with debates between scholars such as Dicey and Goodnow, Indian jurists had a thorough appreciation of the nature and requirements of the Leviathan that was the colonial state. In correspondence between Ghose and Ernest Freund, erstwhile chair of the Commonwealth Fund’s administrative law project, on a gift of a Fund-sponsored book – Gerard Henderson’s Federal Trade Commission (1924) – Ghose pointed out the unsuitability of independent commissions to Indian conditions: “The transference of judicial powers from Courts of law to quasi-judicial administrative authorities has not been taking place in such rapid strides in India as in your country.”[15]In India, “the discretionary authority possessed by the executive” was “so much more absolute” than in the United States that it was unlikely to be exercised “in a judicial spirit.” Expositions of the various ways in which absolute discretionary authority could be tempered— thereby, emphasizing an important role for the courts—lay at the heart of these two lectures.

Modern administrative laws have embedded in them historical legacies. Anxieties about checking absolute power continue in the postcolony. Colonial continuities, however, have been argued to be a problematic concept. Rohit De and Arudra Burra’s engagement with this concept is illustrative of the spectrum of oppositional views on this.[16] While De traces constitutional antecedents to the colonial period, Burra not only demands more specificity over the use of the term but also recommends removing reference to the “colonial” in order to focus on the substantive issues. Many normatively neutral structural features of the colonial state have survived, but the term colonial is at once temporal and political. Constitutionalism and political consciousness was alive and well prior to 1947, evidenced, inter alia, by the institutional history of the judiciary. Colonialism cannot be viewed as deviation from European post-enlightenment history but must be considered part of it—the rule of law that helped sustain English liberties also justified colonial governance. In India, rule of law had to be wrested from the state.

Viewed this way, judicial review cannot simply be perceived as a provision that made its way into independence constitutions because of the lessons learned from the catastrophic circumstances leading up to World War II. India’s colonial experience provided sufficient impetus for sustaining constitutional safeguards vis-à-vis Separation of Powers. The term also reminds us of the centrality of legacies of liberties and conventions that uphold the foundational values of the postcolonial state.[17] Taking a long view of history, therefore, reveals that administrative law is bound up with social and political institutions and practices that accumulate over time. Accordingly, both the ascendancy of courts and court-centered production of administrative law may be better understood in light of these traditions as opposed to assumptions about a general affinity for judicial activism.

 


Cynthia Farid is a Doctoral Candidate in the University of Wisconsin Law School.


[1] Question of delegated legislation was taken up again by the Federal Court in Jatindra Nath Gupta v. Province of Bihar, (1949) F.C.R. 595, diverging from R v. Burah, reflecting a move towards a rigid approach to separation of powers than earlier.

[2] Act XVIII of 1850 offered statutory protection to judicial officers on good faith grounds. However, public servants who acted maliciously were generally punishable under sections 166 and 167 of the Indian Penal Code.

[3] Where an officer has jurisdiction, the question whether he acted in good faith does not arise Meghraj v. Zakir Hussain (I. L. R., 1 All.). See also, Hamilton, William Robarts. The Indian Penal Code: With Commentary. Thacker, Spink and Company, 1895.

[4]Ragunada v. Nathumani (6 Mad.); Taraknath v. Collector of Hooghly (4 B. L. R., and 7 B. L. R. ), is another instructive case in which it was eventually held that carelessness and irregularity are not sufficient reasons to impute malafides or to support an action for damages.

[5]Vinayek Divakar v. Bai Itcha, 3 Bom. ; Vithoba v. Corfield, 3 Bom.

[6] It was held by the Madras High Court in this case that under the circumstances the Collector’s belief that he had jurisdiction was not bona fide, and that he was not protected. Collector of Sea Customs v. Punniar (I. L. R., 1 Mad.)

[7] In this case, the Magistrate kept such persons in jail who were eventually acquitted, thus allowing for his liability in an action for damages. Queen v. Shahon (11 W. R. Cr.).

 

[8] On file with author; The author Mitter is not to be confused with Dwarkanath Mitter, Justice of Calcutta High Court.

[9] Mitter lectures, at 28.

[10]Ibid.

[11]Ibid. at 31.

[12]Ibid.

[13]Ibid., at 36.

[14] Felix Frankfurter Letters and Correspondence, Harvard Law School Special Collection (Misc). Also cited in Professor Daniel Ernst’s blog post: http://legalhistoryblog.blogspot.in/2008/08/comparative-administrative-law-case-of.html. I am grateful to Professor Ernst for his insights and forwarding original cites to some of this material.

[15] Administrative Law and Practices, Commonwealth Fund (CF 23), Rockefeller Archive Center. See also Ernst blog post above.

[16] De, Rohit. “Constitutional Antecedents.” In the Oxford Handbook of the Indian Constitution. 2016; Burra, Arudra. “What Is Colonial about Colonial Laws.” Am. U. Int’l L. Rev. 31 (2016): 137.

[17] Judicial appointments and the convention of consulting the Chief justice is often argued to be a long-standing tradition. In recent years, both India and Bangladesh have debated the nature of this convention but the fact that this practice prevailed in British India is not explicitly discussed if at all.