Abstract
The term delegated legislature is said to be a necessary evil in India since it is misused and abused very often. Delegated Legislature is necessary for several purposes, for example- to ease the pressure over the parliament, since the Parliament (Legislature) is occupied with several other matters also it is important for more experts and technical assistance which the parliament cannot provide at times, now since the parliament is burdened with so many matters at the same time these matters which can be delegated to other authorities are delegated to the executives and through this delegation done, the executives further smooths the process and since the workload is distributed the work takes a better speed which would have been very slow due to the parliament’s slow process.
But when this power is delegated to the executives it is often misused or sometimes it turns out to be not beneficial for the public or in certain cases the executives starts to misuse the powers invested in them for political gains, then comes the necessity of control over the delegated legislature.
Through this research paper the researcher has tried to explain the importance and need of control over the delegated legislation. In this paper the scholar has given a brief about the delegated legislature for better understanding and then further explained that how and through what processes the parliament or judiciary can keep a check and balance and can keep a control over delegated legislature.
Keywords
Legislature/ Parliament, Delegated legislature, Executives, Judiciary, check and balance.
Introduction
“Power tends to corrupt,” said Lord Acton, the 19th-century British historian, “Absolute power corrupts absolutely.”[1] His maxim has been vividly illustrated in psychological studies. So, it’s not too farfetched to say that even delegated power if left unchecked can lead to corrupted and anarchic use of power. Hence, Legislative control over delegated legislation is very imperative for any functioning liberal democracy. Now before understanding the importance of control over delegated legislation, it is important to understand that what is Delegated Legislature. Let’s first start of with what exactly do we mean by delegated legislation. When legislature distributes their own law-making power to any authority (for example the administrative wing of India) and then that authoritative body exercises this new found power to make new law this is particularly known as delegated legislation or subordinate legislation. We can also understand this by a scenario where when legislator delegates its power to an authority and then that authority uses that power and creates an instrument of legislative nature this is known as legislative delegation, but what is “instrument of legislative nature” we know this instrument as – rules, regulations, bye-laws, schemes, orders, notification. After understanding this a question arises in our mind that can these rules, orders, schemes, etc be considered as laws?
And the answer to that question is YES according to Article 13(3)(a) of the Indian constitution[2] -law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
And as Salmon described – “Delegated Legislation is that which proceeds from any authority other than the sovereign power and is therefore, dependent for its continued existence and validity on some superior or supreme authority.”[3]
While delegated legislation can be efficient in addressing technical and specialized matters, it has garnered criticism for several reasons.
One of the primary concerns is the potential lack of democratic accountability associated with delegated legislation. Unlike primary legislation, which involves the direct participation of elected representatives, delegated legislation entrusts law-making powers to unelected officials or bureaucratic bodies. This shift in power can create a democratic deficit by reducing the involvement of elected representatives and limiting transparency in the law-making process.
Another issue revolves around the discretionary powers granted to government officials through delegated legislation. These broad powers allow officials to create regulations with minimal oversight, leading to potential abuses of power and the creation of arbitrary rules. This can undermine the principles of good governance and leave room for political biases, favouritism, or conflicts of interest.
The complexity of delegated legislation poses challenges as well, the parliamentary scrutiny of delegated legislation can sometimes be inadequate. Due to time constraints or other factors, these regulations may be rushed through the parliamentary process, leading to insufficient debate and scrutiny. In such cases, potential issues with the regulations, such as unintended consequences, conflicts with other legislation, or infringement upon individual rights, may go unnoticed.
In India, the Kerala Education Rules (KER) introduced in 2020 under delegated legislation faced controversy and legal challenges. Critics argued that the rules imposed stringent regulations on teachers and schools, thereby limiting their autonomy and flexibility. The provisions of the KER were viewed as excessive and detrimental to the education system. This example serves to demonstrate how delegated legislation can lead to unintended negative consequences.
To address these concerns, it is crucial to ensure appropriate checks and balances, robust scrutiny, and meaningful public participation in the delegated legislation process. These measures can help mitigate the potential drawbacks and uphold democratic accountability.
Some examples of delegated legislation are the Environment (protection) act 1986[4], The Income Tax Act 1961.[5]
So, now that we understand what Delegated legislation is, and what is the need of control we must understand the several methods and kinds.
Research Methodology
This research paper is explanatory in nature and the researcher has used secondary sources to analysis for research purpose. The researcher has used secondary sources like websites, case laws, newspapers and different statutes etc.
Review of literature
The control over the delegated legislature is applied over two stages, firstly it should be applied when the legislature invests the power of legislation to the executive body and the other stage would be when the power is abused or misused by the executive officers in charge.
There are three classification for the control over the delegated legislature-
- Legislative Control over the delegated legislature
- Judicial Control over the Delegated Legislature
- Procedural Control over the Delegated Legislature
Legislative control–
The legislative body has the power to legislate that is to make laws and this body also has the power to delegate its powers to other executive body in order to get more efficient working but when the legislature delegates its power to the executive body or government or any authority, it is important duty of legislature to keep a check and supervision and control over the powers delegated since it is a well known fact that absolute power is harmful and corrupts. Now this clears that legislature does not and cannot give absolute unlimited power but provides limited power to the executive authority to keep a check. Under legislative control over the delegated legislature there are three main points that are- memorandum on delegated legislature, laying of delegated legislation before the parliament and scrutiny committees.
Memorandum on delegation is a kind of parliamentary control over delegated legislature. When legislature presents a bill, in that bill the legislature specifies that in the given proposal the legislature is empowering central government or the state government to make rules under specified section or clauses. In this particular bill a memorandum on the delegation or regarding the delegation is also provided along with the bill which explains the powers, who will be exercising the power and till what limit the power can be exercised, the kind of power, the procedure of exercising the power and in what manner will it be exercised, also explaining the characteristics weather it is normal or exceptional. Overall, it means that everything including scope, extent, nature is described under this memorandum of delegated legislature. Therefore, it can be said that this is a kind of control which is implemented before even initiating the making of rule. This memorandum is basically for the member of parliament to inform them that these powers have been delegated to the authority and till what extent.
Laying Procedure
Laying Procedure is the parliamentary control which is applied after making the rules. Under this kind of parliamentary control, the parent act makes the law and in that same law it is specified in the provisions that the executive body has the power to make rules in that particular law at the same time provision is added that any rule made by the government under this law/ act shall be laid before the parliament soon after it is made. Through this procedure the member of parliament is informed about the content of the delegated legislature and the member of parliament gets the opportunity to question any procedure or power whether it is arbitrary in nature whether it is efficient for the public.
In most of the parents act it is specified that the law needs to be laid before the parliament but if there is no laying procedure it is not necessary for the authority to lay down the rules before parliament.
Example
– Essential Commodities Act, 1955 under Section 3(6)[6] states that any order or rule made by the central government shall be laid before both the houses of parliament (Lok Sabha and Rajya Sabha) soon after it is made.
– Delegated Legislation Provisions (Amendment) Act, 1983 [7]also states that every rule should be laid before both the houses of parliament for a period of 30 days and gives the power to the parliament to modify or annul the rule if needed.
Legal consequences if non- compliance with laying procedure-
The legal consequence is determined on the basis of the provision in the statute or parent act, whether mandatory or directory in nature.
For example-
- Narendra Kumar vs. union of India 1960[8]
Under this case the statute involved was Essential Commodities Act, 1955, section 3 (5) and (6)[9] stated that the laying procedure was mandatory in nature therefore the court held that the government has to lay down the rule made before the parliament necessarily otherwise it will have no effect.
- Atlas cycle industries ltd. Vs. State of Haryana 1979[10]
In this case also the court tried to identify the nature of section 3(6) of Essential Commodities Act, 1955[11] (notification was passed by iron and steel controller over the official gazette without prior laying before parliament) whether it is mandatory or directory to determine the legal consequence. The court in this case held that the notification will not be nullified merely because it was not laid before the parliament and the court also said that ‘shall’ term is not conclusive and it is important to understand the intension of legislature rather than nullifying the order. Also, the laying procedure is condition subsequent and not precedent.
The court also mentioned three kinds of laying which are used by the legislature-
- Laying before the procedure meaning simply laying before the parliament.
- Laying subject to negative resolution- in this condition the rules are made and then comes in effect after which it is laid in front of the parliament. If the parliament approves the rules, it will continue to be in effect and if the parliament disapproves then the rule will be inoperative.
- Laying subject to affirmative resolution- under this kind the rules have to be laid down in front of the parliament in the draft form before the enforcement. And the effectiveness of the rule depends upon the approval of parliament.
Now another issue under the laying procedure was that whether the court can review after laying the notification before the parliament –
- In the case of Dal- Ichi Karkaria Ltd. V. Union of India 2000[12] the court held that the court can review even if the laying procedure has been followed and the parliament has approved, if the court needs to check the validity.
Scrutiny Committee
The scrutiny committee was formed to strengthen the parliamentary control over delegated legislature. The two committees which was established were-
- Lok Sabha committee on delegated legislature established in 1953
- Rajya Sabha committee on delegated legislature established in 1964.
It was established since parliament was not adequately equipped to judge the delegated legislation and also due to the lack of time.
The committee keeps a check and reports the House of parliament whether the delegated power is exercised properly or not. The committee keeps a check on whether there is imposition of tax or whether somehow the rule directly or indirectly bars the jurisdiction of court also whether there is any unusual use of power unjustified delay in laying it before the parliament.
If the committee is satisfied that the order should be nullified or amended the committee reports the same to the House of parliament. Further the committee recommends and suggests the subordinate legislation that the rules should be immediately framed as soon as the act comes into effect and should not take more than 6 months. Also, any kind of complicated language should be avoided. In situations where suggestions are invited from the public the draft should be published and time should be given for around 30 days. Also, the rules should be published in the Official Gazette for public.
Overall, the committee works in order to attain the principle of natural justice and to check the compliance with the parent act.
Judicial Control–
The legislature gives its power to executive and keeps executive in check, it makes sure that the power is being properly used, but suppose a normal citizen is facing a problem because of delegated legislation. In this situation the citizen will not go to the legislature to get their problem solved but to the judiciary in case any right of the citizen is being infringed. After which the judiciary comes into action and reviews the validity of delegated legislation. The validity is checked by the doctrine of ultra vires. If the rule or order is beyond the power of parent act it can be said that the rule made is ultra vires.
There are two types of ultra vires-
- Procedural Ultra Vires
Procedural ultra vires happens when the rule making authority does not follow the procedures prescribed by the parent act.
Under this circumstance publication becomes essential, if the authority fails to publish the rule then the subordinate legislation becomes ultra vires. Also, if the power vested to the authority is if further delegated it becomes ultra vires.
The procedural requirements are deemed to be followed, if otherwise then the subordinate legislation is said to be void and ultra vires.
- Substantive Ultra Vires
The meaning of substantial ultra vires is that this particular Delegated Legislation made by the authoritative body is beyond their jurisdiction in other words it is beyond the power granted by the parent act or beyond the fundamental laws.
The court can declare delegated legislation invalid on the basis of substantive ultra vires under the following circumstances-
- Parent act is unconstitutional
If the parent act itself is unconstitutional it will be ultra vires and the delegated legislation will be declared as invalid.
- Hamdard Dawakhana vs. Union of India 1960[13]–
In this case the court held that Section 3(d) of Drugs and Magic Remedies act 1954[14] is ultra vires to the constitution.
- Delegated legislature is ultra vires to the constitution
In case the parent act is constitutional but the delegated legislation is ultra vires to the constitution in that situation the delegated legislation is set to be invalid.
- Dwarika Prasad laksmi Narain vs. State of UP 1954[15]
In this case it was held that the UP coal control order of the Essential Supply Act 1946[16] was ultra vires to the constitution.
- Delegated legislation is inconsistent with parent act
The delegated legislation can only be valid if it is working within the boundaries and the power granted by the parent act or enabling statute if it’s not then it can be challenged on the ground that it is ultra vires to the parent act as it happened in Himat Lal K.C vs. Commissioner of Police 1973[17]
- Delegated legislation is arbitrary and unreasonable – even though deleted legislation might be consistent with the parent act but if it is deemed arbitrary / unreasonable even then it can be declared as invalid, for example Air India v. Nargesh Meerza, 1981[18] where the court held that regulation which gave power to the authority relating to the terms of service of a female when going through pregnancy was arbitrary in nature.
- Delegated legislation can also be held invalid if the code comes to the conclusion that the power is not exercised in good faith even though the Delegated Legislation is in accordance with the parent act for example DC Wadhwa vs. State of Bihar 1987[19]
- Delegated legislation operated retrospectively – the executive would derive its power from the parent act can never apply its power retrospectively unless and until it is specifically mentioned in the parent act to apply the delegated legislation retrospectively.
- A delegate cannot further delegate – which means the delegated legislation cannot further delegate its power for example let’s say the parent act gives power to the central government to make any law so in this case the central government itself has to make the law it cannot further delegate there responsibility of making an act to another body.
Sub Delegation is not allowed-
The only case in which Central government is allowed to further delegate its power to the government is when the parent act already allows it explicitly and within the boundries of the Parent Act.
Also, the parent act cannot exclude judicial review by adding provisions which excludes the courts power to review. The judiciary has full rights to review the validity of the rules made by the delegated legislation.
Procedural Control-
Procedural control is implemented in order to ensure effective participation of the public in the process of making of the delegated legislation.
There are three kinds of procedural control-
- Consultation-
Consultation is the method through which public participation is included in the rule making process, this method acts as a safeguard against the misuse of power by the rule making authority.
There are several kinds of consultation- for example: official consultation with named body, with a statutory board, with the representatives of public etc.
- Publication-
Publications are of two kinds-
- Previous publication (Ante- natal Publicity)
Under Previous publication the rules made are known to the public before finalising and enforcing. Example- Section 212 of Motor vehicles act 1988[20].
Previous publication gives the opportunity to the public that might be affected to have a say or suggestion in the rule making.
- Publication (Post- natal publication)
Under this kind of publication it is necessary to publish for the reason that the subordinate legislation contains rights of the individuals or any other important matter which is important to publish.
Suggestion And Conclusion-
To sum up, while delegated legislation is considered necessary, it must be subject to appropriate control mechanisms. Even though the legislative body delegates the power to the executive body, it is the duty of legislature to supervise and keep a check at it, at the same time no law can keep judiciary out since the judiciary plays a crucial role through judicial review in ensuring that delegated legislation remains within the limits defined by the Constitution and the parent Act and works as a safeguard in case any fundamental laws are being violated. The control mechanism makes sure that the expertized delegated authority framing the rules are at balance with the best of public interest.
Citation
INDIA CONST. Art. 13(3)(a)
Narendra Kumar And Others vs The Union Of India And Others on 3 December, 1959
https://indiankanoon.org/doc/1276331/
Atlas cycle industries ltd. Vs. State of Haryana AIR 1979
https://indiankanoon.org/doc/982342/
Hamdard Dawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671]
https://indiankanoon.org/doc/591481/
1981 AIR 1829, 1982 SCR (1) 438
https://indiankanoon.org/doc/1903603/
Motor Vehicles Act, 1988, Sec. 212
Author:
Sanjana Priya
University of Petroleum and Energy Studies, Dehradun.
[1] Lord Acton 1834–1902 British historian: letter to Bishop Mandell Creighton, 3 April, 1887
[2] INDIA CONST. Art. 13(3)(a)
[3] Salmond’s definition of delegated legislature
[4] Environment (Protection) Act, 1986
[5] Income Tax Act, 1961
[6] Essential Commodities Act, 1955, Sec. 3(6)
[7] Delegated Legislation Provisions (Amendment) Act, 1983
[8] Narendra Kumar v. union of India AIR 1960 SC 430
[9] Essential Commodities Act, 1955, Sec. 3(5), Sec. 3(6)
[10] Atlas cycle industries ltd. Vs. State of Haryana AIR 1979
[11] 1979 AIR 1149,1979 SCR (1) 1070
[12] Dai-Ichi Karkaria Ltd v Union of India (2000) 4 SCC 57
[13] Hamdard Dawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671]
[14] Drug and Magic Remedies Act (objectionable advertisements), 1954, Sec. 3(d)
[15] Dwarka Prasad Laxmi Narain v State of Uttar Pradesh AIR 1954 SC 224
[16] Essential Supply Act, 1946
[17] 1973 AIR 87, 1973 SCR (2) 266
[18] 1981 AIR 1829, 1982 SCR (1) 438
[19] DC Wadhwa v. State of Bihar AIR 1987
[20] Motor Vehicles Act, 1988, Sec. 212
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