Red, green and amber light theories of administrative law

1.  FACULTY NAME:  KANHAIYA JHA  BATCH NAME:  PUB. AD. OPTIONAL  SUBJECT:  PUBLIC ADMINISTRATION  TOPIC NAME:  RED –GREEN-AMBER LIGHT THEORY  DATE OF PRESENTATION:  19 / 10 / 2023

2. Red, green and amber light theories of administrative law • The notion of traffic light theories i.e. red and green light theories in administrative law was first used by Harlow and Rawlings in 1948. • These are now considered to be one of the ideas of rule of law. • This theory was presented to evaluate administrative law to put an end to the misuse of authority.

3. Red light theory • The red light theory is believed to have originated from the laissez-faire political tradition of the 19thcentury. • A major assumption of this theory is that when public bodies or executive authorities exceed their powers, judicial intervention works as a sanction. • This is because bureaucratic and executive power of the state and its institutions, if unchecked, will threaten the liberty of all individuals. • Thus, judicial control is required in the political framework of a state. • The red light theorists also believe that the judiciary possesses its own standards of independence and fairness and can be relied upon, in examining the legality of executive action. • Hence, it can be used as an effective mechanism for check and balance in a state system.

5. • These are the various tenets of this theory: • Courts are the primary institution for protection of the citizen and control of the executive. • The supremacy of law must prevail over politics. • The administrative authorities must be kept under judicial control. • For judicial control, the general system of adjudication is appropriate. Public law must be oriented towards strengthening individual liberties. • The world of law is apolitical, neutral and independent of the world of government, politics and administration. • Administrative law should aim to curb or control the state.

6. • Therefore, the red light theory emphasizes on law as an instrument for the control of power and protection of individual liberty. • It advocates for an interventionist standpoint by the courts to the review of administrative decisions. • As expounded by Dicey, this theory looks to the model of the ‘balanced constitution’ accommodating the judicial control of executive power as subject to political control by the Parliament through legislation of strict rules and to legal control through judicial monitoring by the courts.

7. Green light theory • Green light theory theory maintains that the use of executive power to provide services for the benefit of the community is entirely legitimate. Thus, the function of the courts in checking executive action is a questionable activity. However, it does not favor unrestricted or arbitrary action of the state. It is an alternative tradition emanated between the two world wars. • Green light theory is a counter theory to the red light theory evolved due to multiple critiques and challenges to the red light theory • The Green light theory, also perceived as functionalist theory, holds a positive outlook towards the state. • It believes that the government is congenial and it cannot be suspected of committing unlawful actions. • The green light theory thus emphasizes on how it is important for the administrative law to facilitate government action rather than intervening in it through judicial or political control. • It suggests how law can be used as an enabling mechanism so that it acts as a weapon to the administrative bodies.

9. • Being driven by the utilitarian theory associated with Jeremy Bentham and John Stuart Mill, this theory asserts that the greatest good for the greatest number in a state can be attained by encouraging state contribution with lesser control or intervention. • It holds that collective goals of the society can be achieved through the democratic framework. Hence, this theory does not aim to derogate individual rights or refute the core values and norms of a democratic society. • This alludes towards a proposition that the collective (public) goals can be met by granting wide powers to the Executive and making it independent of judicial restrictions.

10. • These are the various tenets of this theory: • Law is merely a matter of political discussion. Thus, law is not superior to administration or cannot prevail over administration. • Public administration is not a necessary evil but a good element of the state. • Administrative law should not only focus towards prohibiting negative practices of the government. It should also work on facilitating the administration and sound administrative practices. • For encouraging the administration, adjudication based on legal rules is not the sole appropriate idea. • There can be other alternatives to courts.

11. • Therefore, the main concern of green light theory is to reduce the influence of courts over administration because the courts with their legal values are considered as a hurdle to administrative progress. • The green light prefers democratic form of accountability. • Based on these assumptions, green light theorists assent in facilitating the administration through prevention of any judicial or legal control over executive actions

12. Differences between the red and green light theories • Although the two theories cannot exist in isolation and complement each other in many ways, there are various underlying differences between the two. These differences have been listed below: • The red light theorists advocate for an interventionist approach by the court in relation to the review of administrative decisions while the green light theorists question the function of courts in checking executive actions. • The red light theory is suspicious about governmental actions while green light theory identifies the government as congenial. • The red light theory relies on the courts primarily for administrative control whereas green light theory is inclined towards other possible alternatives to courts. • The red light theory sees judicial control over administration as a weapon of sound administration while the green light theory perceives such control as an intervention or obstacle to the administrative process.

13. • The red light theory considers judicial review as a mechanism of controlling the administrative actions whereas the green light theory acknowledges the necessity of judicial review, at times, only to facilitate the administrative actions. • The red light theory considers law as superior to politics while the green light theory holds that law is not superior to politics or administration. • The red light theory appears politically conservative whereas the green light theory reflects a politically progressive view. • For red light theorists, answers to everything lay in courts and the rule of law while for green light theory, legal profession or law is too old fashioned.

14. Amber light theory • While the red and green light theories hold two different standpoints in administrative law, the amber light theory tends to bring a point of consensus between the two. • The amber light theory maintains that administrative law should apply the positive elements of both the theories. • This theory identifies the essence of both “fire-watching” as well as “fire- fighting.” The administrative law can perform “fire-watching” by setting good standards of administrative conduct and “fire-fighting” by nullifying erroneous administrative actions through court pronouncements. • The amber light theorists believe that there must be a balance between both external as well as internal controlling mechanisms for effective public administration.

17. • The amber element between the two theories has somewhere been realized by green light theorists too. • As recognized by Harlow and Rawlings, green light theory does not wish to suggest that it favors unrestricted or arbitrary action by the state. In fact, it doesn’t rebut the rigidity of red light theory to some extent.

18. • These are the various tenets of this theory: • Law is both discrete from and superior to politics. • The state can successfully be limited by law although that law should properly allow for the administration to enjoy a degree albeit controlled degree of discretionary authority. • The best way of controlling the state is through the judicial articulation and enforcement of broad principles of legality. • The goal of this theory is to safeguard a particular vision of human rights.

19. • In this way, the amber light theory is a synthesis which combines the necessity for some control over administrative decisions with concern for setting good standards of administrative conduct, effective decision-taking, accountability, and human rights. • It has a close association with both theories however it does not support the existence of any one theory in isolation. It acknowledges the tenets of both the theories and tries to reconcile between the two.

20. COURT VEDICTS • In the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu 1999, It was determined by the Supreme Court that judicial intervention in the routine operations of administrative entities should be avoided and that such entities should be permitted to address issues in their manner, provided that their actions remain within legal boundaries.

21. • In the case of State of U.P. & Ors. v. Mohammad Nooh 1958, Supreme Court opined that the judiciary ought not to intervene in administrative policy or discretionary power exercised by the government unless it can be demonstrated that such policy or power is arbitrary or unreasonable.