A Long Pending Reform: India’s Administrative Law

India's existing administrative framework displays a combination of strengths and weaknesses. On the positive side, it offers a structured mechanism for government interaction with citizens and a framework for holding government accountable. Nevertheless, challenges arise from prolonged legal procedures, bureaucratic red tape, and the need for more streamlined processes to enhance efficiency.

In contrast to several democratic nations, much to its geopolitical strengths, India lacks a comprehensive administrative law. Unlike countries such as the United States, the United Kingdom, and Singapore, which have long benefited from such a framework, India faces a significant disadvantage in global investment competition. The absence of cohesive administrative law consistently contributes to India's unfavourable ranking in the World Bank's Ease of Doing Business Index.

The absence or inefficiencies in administrative law can lead to a range of concerns. Lack of a robust framework may result in arbitrary exercise of power, corruption, and a lack of accountability. Inefficiencies may contribute to delays, hindering timely decisions and adversely impacting individuals, businesses, and overall governance.

Reforming administrative law needs honesty in introspection into the current framework, laden with challenges and opportunities. Entrenched in the vestiges of its colonial past, India’s administrative apparatus, as it exists today, grapples with challenges that belong to a bygone era. The pushback against change is palpable, entrenched in bureaucratic traditions resistant to disruption/change. Concerns linger about the potential dilution of institutional wisdom, echoing fears that a shift might compromise the expertise ingrained in the system.

Crucially, administrative reform hinges on political willpower. The question of power and its distribution forms the crux of administrative reform. Striking a balance that mitigates power-hunger and promotes accountability is imperative. Reform should aim not only to streamline processes but also to create a culture that values service over authority, ensuring that power is wielded responsibly and for the collective good.

India needs an urgent recodification of a cohesive and comprehensive administrative law. Key components include constitutional provisions defining the structure and powers of administrative bodies, delegated authority and financial independence to the lowest level of administration, that is, the gram panchayats and municipal authorities, principles of natural justice guiding administrative actions, rules and regulations governing public servants, and procedures for decision-making by administrative authorities. Administrative law in India also addresses issues related to administrative discretion, delegated legislation, judicial review of administrative actions, and the rights and liabilities of citizens in their interactions with the government.

Since gaining independence, India has convened numerous commissions and committees to drive administrative overhaul. In 1949, Gopal Swami Ayyangar Committee advocated for enhanced personnel practices and ministry structures. Subsequently, the Gorwala Committee in 1951 focused on system development and planning. In 1953, the Paul H. Appleby Committee proposed the establishment of an O&M division to refine administrative methods and procedures. The inception of the first Administrative Reforms Commission in 1966, under the leadership of Morarji Desai and later K. Hanumanthaiah, produced 20 reports and 537 recommendations aimed at revitalising public administration, including the establishment of the Lokpal and Lokayukta.

Building on this legacy, a second Commission was constituted in 2005, and brought 15 reports with 1,500 recommendations, with a focus on financial management, personnel administration, e-governance, regulatory frameworks, and crisis management. Yet, despite these efforts, administrative law reforms remains elusive.

Despite their institutional independence, regulators crucial for economic stability and consumer protection face challenges like regulatory capture and a lack of independent decision-making. The question arises: why does this persist? It is common to have ex-officials exploit the cooling-off period as a pretext to join the boards of entities they previously supervised or failed to penalise. Emphasising the necessity of a clearly defined administrative framework for officials is crucial. Regulatory capture is deeply rooted, leaving sectoral governance in a state of uncertainty. While such actions might be legal due to the absence of administrative law on certain matters, they are inherently flawed in spirit and fall short of societal moral expectations.

While these transitions may be legally permissible, ethical dilemmas frequently arise. It's not solely a matter of legality; it pertains to the perception of fairness and justice. Judges becoming governors may raise questions about their impartiality in cases involving the government, and bureaucrats and regulators taking positions in supervised entities can erode public trust. Such transitions can have broader implications for governance and the corporate landscape, potentially concentrating power and sustaining the status quo. There are undoubtedly alternative avenues where these officials could contribute without triggering the same ethical concerns.

The need for comprehensive administrative law in India goes beyond academic or legal discourse; it is an urgent requirement to tackle systemic issues and reinforce the principles of good governance. Administrative law plays a pivotal role in ensuring accountability among public servants and officials. A well-defined code of conduct, supported by legal provisions and driven by technology, holds those in positions of power accountable for their actions—crucial for maintaining citizens' trust and upholding the rule of law.

A comprehensive administrative law has the potential to streamline bureaucratic processes, enhancing efficiency and effectiveness in governance. Clearly defined roles, responsibilities, and procedures can mitigate red tape and improve the delivery of public services. By establishing conflict-of-interest rules and ethical standards, administrative law contributes to maintaining the integrity of regulatory bodies.

While theoretically designed to prioritise competence over pedigree, the practical implementation reveals a discernible conflict. Traditional bureaucratic networks often clash with the introduction of lateral entries, creating a dynamic where established norms resist disruption. This is where culture change is needed, with fresh set of admin reforms.

As the government embarks on its potential third term with an increased electoral mandate, there is a newfound opportunity to prioritise and implement much-needed administrative reforms. However, achieving meaningful change in this arena will require a higher level of focus, an extended timeframe, and a deeper level of precision.

By committing to these principles and addressing the systemic issues within India's administrative framework, the government can pave the way for more efficient, accountable, and transparent governance. With sustained dedication and careful attention to detail, the promise of comprehensive administrative reform can be realised, laying the foundation for a more robust and resilient administrative apparatus that serves the needs of the nation effectively, for being relevant in the 21st century.

As India scales to establish itself as a global superpower, constructing a sturdy foundation of administrative law becomes urgent. Transforming a morally conscious administrative law into a legally binding framework will be a significant step worthy of AmritKaal.

Srinath Sridharan is a policy researcher and corporate advisor.

Sakate Khaitan is senior partner at Khaitan Legal Associates

The views expressed here are those of the author, and do not necessarily represent the views of NDTV Profit or its editorial team.