CONSTITUTIONALITY OF DELEGATED LEGISLATION

This article is written by Anshul Parashar of 7^th Semester of Banasthali Vidyapith University

Abstract

The Indian Constitution authorizes the legislature to establish legislation for the country. One of the most important legislative roles is to formulate a legislative strategy and define it as a code of conduct. Obviously, such authority cannot be delegated code of conduct to other institutions. However, given the diverse activities of welfare states, it is impossible for the legislative branch to execute all functions. In such cases, delegated legislation enters the picture. One of the key parts of administration is delegated legislature, in which the executive must execute some legislative functions. Nevertheless, one must not overlook the dangers associated with the delegation process. An overworked legislature may frequently overstep its Delegation Limitations. It may not establish any rule; can declare any of its policies to be ambiguous; and may establish any guidance for the executive, granting the executive broad authority to alter or alter any policy established by it without reserving any influence over subordinate legislation. As a result, while the Legislature may delegate certain of its powers, it must maintain complete authority over such functions.

Keywords: Legislature, Code of Conduct, Delegated Legislation, Administration, Executive, Subordinate Legislation.

Introduction

The doctrine of permissible limits discusses the legislative restrictions to which power can be transferred. This theory placed constraints on the legislature, preventing it from delegating entire authority to administrative bodies. Delegated legislation, also known as secondary legislation, subordinate legislation, or subsidiary legislation, is the process through that the executive authority receives authority from primary legislation to enact laws to carry out and oversee the stipulations of that initial legislation. Such laws are those passed by a body or individual apart from the legislature but within its jurisdiction.

‘Delegated legislation’ is legislation enacted by a body or individual to whom Parliament has delegated legislative authority. This is a significant difference from ‘primary’ legislation, and is approved by both legislatures of the Commonwealth Parliament and signed by the Governor-General. Delegated legislation (such as rules) is frequently enacted by the Governor-General on the advice of the Federal Executive Council. Delegated legislation attempts to add depth to a legislative concoction by laying out issues that are deemed unnecessary for Parliament to approve through primary legislation.

Why Delegated Legislation Is Required?

The delegated legislation procedure permits the government to enact legislation without waiting for another Act of Parliament to get approved. Additionally, delegated legislation gives the authority to amend or vary the penalties under a certain act or to make technical legal changes. Given that there are more delegated laws passed each year than Acts of Parliament, delegated laws play a significant part in the legislative process. Furthermore, delegated legislation retains the same legal standing as the original Act of Parliament.

Administrative law’s concept of Delegated Authority

Globally, a number of nations accept delegated law. It is the responsibility of the courts to decide if a nation’s constitution is silent regarding the precise scope of delegated legislation. The constitutions of nations like the United States, India, Australia, Canada, and South Africa are notably absent from this discussion. In the Indian context, many courts, from the Privy Council through the current Supreme Court, the Supreme Court of India, should consider whether administrative regulation is constitutional. The Supreme Court of India set legal standards in a number of decisions that now serve as a benchmark for any delegation to determine if it is fundamentally constitutional or unconstitutional. Any delegated law must be compatible with the parent act, the court said in Indian Oil Corporation v. Municipal Corporation, Jullundhar[1]. Therefore, it shouldn’t go against any relevant legislative policies. A delegate is not anticipated to have greater legislative authority than any other delegate, as the court intimated, to be more explicit.

The legislature is not permitted to delegate any of its fundamental legislative duties, including formulating a strategy to oversee a specific act. Delegating non-essential tasks is impossible, regardless of how crucial they are, according to a different interpretation of the same sentence. The courts have agreed to accept any different declaration as an appropriate strategy for the contested Act, which will be necessary for assessing the grounds for constitutionality after much study, discussion, and contemplation. The reason behind delegated legislation is that it does not provide a reliable basis for judging the competence of the authority; the Supreme Court made this plain. Instead, the court would take into account the relevance and importance of the past and present circumstances surrounding the use of the rule-making power.

Tracing from Back Dates

The Charter Act of 1833, which saw the East India Company start to regain political dominance in India, serves as the historical backdrop for power delegation. The Governor-General-in-Council, a statutory entity, was given exclusive control over administration by the Charter Act of 1833. He had the power to establish laws and regulations for repealing, amending, or changing any laws or regulations that applied to everyone, regardless of nationality. A significant delegation plan was included in the 1935 Government of India Act. In India, the dispute over force deployment and administration of enactment was settled by the submission and confirmation of the Committee of Ministers’ Powers report, which closed the matter. It is hardly unexpected that the framers of the over 400-article Indian Constitution included a solution for it. But precisely why were these clauses inserted into the constitution?  The politicians’ proclivity to adopt a variety of legislative conceptions at the Constituent Assembly is the cause of this.  These issues were of very little significance with respect to other significant constitutional issues that the Assembly chose to ignore and leave to later agreement or judicial interpretation.

Reasons for the Advancement of Delegated Legislation

The legislature has increasingly delegated power to the executive and judiciary. There are numerous reasons for the increase in delegated legislation.  The scope of welfare state activities is expanding by the day, making it nearly impossible for legislators to dedicate adequate time to all legislative intricacies. As a result, rather than creating the entire legislation, the legislature develops the broad policy, or skeleton, and delegated authority to the executive body to add in the details or provide material support to the skeleton.

Sometimes the legislature must create and adopt legislation on technological issues. People who sit in parliament as ordinary citizens are not expected to be specialists in all fields.  As a result, individuals are not supposed to comprehend legislation in the same manner that expert should. As a result, the legislature delegated legislative authority to experts to handle the technical aspects of the legislation.  Immediate action is essential in an emergency. For example, during an outbreak of war or rule of law in a nation or state due to disasters such as floods, earthquakes, and so on, the legislature is unable to satisfy the situation’s requirements. In such cases, the executive is given unique authority in the form of delegated legislation that deals with the problem.

The Constitutionality of Delegated Legislation

In many circumstances, the status and constitutionality of delegated legislation in India can be demonstrated. It is divided into two stages: before independence (pre-independence) and after independence (sometimes referred to as post-independence).

• Pre-independence: In Queen v. Burah (1878)[2], the Privy Council only authorized conditional legislation. In this situation, the Privy Council delegated legislative authority to the executive. The administration of civil and criminal justice in a territory may be delegated to officials chosen on a regular basis by the Lieutenant Governor. The Privy Council applied legislative conditions in the case of King v. Benoari Lal[3] Sharma, as it had done in Queen v. Burah. In this case, the legality of the Governor-General of India’s Emergency Ordinance was challenged, among other things. It was litigated as he attempted to depose the provincial government. He was constructing unique criminal courts for various types of offenses, but the provincial government was the only one with the jurisdiction to settle any court. According to the judicial committee, this is not delegation legislation. The Privy Council went on to say that it serves as an instance of an unconventional legislative authority whereby a regional administrative body determines the local implementation of state legislation when it is required.

• Post-independence: The Indian Constitution fails to delegate legislative powers in the same way that the prominent British Parliament does. The degree to which delegation is possible in India must be deduced from the particulars of the Indian Constitution. In legislative power, there is nothing known as an infinite right of delegation. In Raj Narain Singh vs. Chairman, Patna Administration Committee AIR (1954)[4], the Supreme Court of India upheld the legislative body’s transfer of power to the executive body. This case gave the local government the authority to enlarge any of the provisions of the legislation (the Bengal Municipality Act).

• The S.C in Hamdard Dawakhana vs. Union of India (1959)[5] held that the transfer of powers was unconstitutional since it was unclear. It ruled that the Center’s ability to designate diseases and conditions under the Drug and Magic Remedies (Objectionable Advertisements) Act of 1954 is “uncanalized,” “uncontrolled,” and “exceeding the allowable boundaries of legal delegation.” As a consequence, it was determined to be unconstitutional. In a 1973 decision, the Supreme Court stated that its understanding of delegated legislation arose from the tangible and practical demands of a modernized welfare state.

Delegated Legislation: Status under the Indian Constitution

The Indian Constitution empowers the legislature to delegate its obligations to other authorities and to formulate policies to carry out the laws it passes. The Supreme Court ruled in D. S. Gerewal v. State of Punjab[6] that Article 312[7] of the Indian Constitution addresses the authority of delegated legislation. “There isn’t anything in the terms of Article 312 that takes away the ordinary authority of delegation, which usually lies in the legislature,” Justice K.N. Wanchoo remarked. Article 312’s statement “Parliament may by law provide” may not be read as implying that there is no possibility for delegation in a law passed under Article 312. The legislation of England allows the Parliament to transfer an unlimited number of functions. In America, however, as in India, the Congress can only delegate some of its powers. As a result, it lacks unlimited or uncontrollable powers. Thus, India permits delegated legislation, but only in an explicit and controlled manner with particular constraints.

Types of Delegated Legislation

Importance of Delegated Legislation and Criticism

• Importance: It allows for adaptability and versatility in the legislative process. The legislature can react to changing conditions and developing concerns more swiftly and efficiently by delegating some authorities. Delegated authority with additional skills, qualifications, and expertise (in domains such as technology, the environment, and so on) is better suited for formulating laws.
• Criticism: It may result in a dearth of accountability and transparency in the process of legislating because laws enacted by executive agencies or administrative entities are not subject to a similar extent of public scrutiny and debate as laws enacted by legislative bodies. It may also result in an overlap of authority in the executive and administrative departments of government, undermining the notion of separation of powers. However, many types of delegated legislation, such as ordinances, require legislative approval.

Institutions and Authorities with Delegated Legislation

 Some superior or primary authorities have the authority to delegate their jurisdiction to any other entity with less power than them. The following institutions and authorities have such delegation powers:

• Cabinet of Ministers
• Public entities or corporations of local government
• State Government and Departments
• Judiciary
• Governmental Departments
• Legislature and so forth.

Judicial Surveillance over Delegated Legislation

In India, courts of law can challenge delegated legislation as unconstitutional, disproportionate, and arbitrary. The Judiciary can control it on two grounds: substantial ultra vires as well as procedural ultra vires. The criteria by which the executive’s law can be ruled void and null by the court are that it is not inconsistent with the constitution or ultra vires the governing act from which it has the ability to make law. In India, the Supreme Court and the High Court have been given the authority to examine delegated laws; therefore, they serve an active role in controlling delegated legislation. Judicial oversight over delegated legislative authority exists at two levels:

• Protesting to the delegation as unlawful
• Improper utilization of statutory power.

No delegated legislation can exist if it contradicts the principles granting fundamental rights. If any act violates basic rights, the rules, regulations, and by-laws enacted under it will be null and void. The idea of ultra vires underpins judicial oversight over delegated legislation in both India and America. Furthermore, the judiciary in America retains control over delegated laws in a variety of ways.  The two basic methodologies employed by the American judiciary to legitimize legislative delegation to the executive are:

• Filling in the details method
• Approach based on logical principles.

In the initial approach, they should put out the required policy for executive guidance, and the executives must fill in the particulars and carry out the legislative policy in accordance with the standard. The court will evaluate the delegated legislation in the second approach to determine if it is ultra vires under the enabling statutes or is not in compliance with the provisions contained in the enabling statutes.  Kruse v. Johnson[8]: The court ruled that by-laws would be irrational on the following grounds that- It shouldn’t be considered biased or unequal. It shouldn’t appear to be plainly unjust, and it shouldn’t reveal ill faith. It shouldn’t entail undue interference with people’s rights that has no rationale in the eyes of a reasonable person. Case of the Delhi Legislation Act[9]: In this case, the Central Government is given the authority to abolish pre-existing legislation that is determined to be ultra vires by an act. The Case of Chintaman Rao[10]: The Deputy Commissioner’s prohibition on making bidis during the agricultural season violates Article 19(1) (g) of the Indian Constitution. In Chandran v. R, it was determined that if the authority of by-laws has been placed in the possession of the Legislature, it must remain within the boundaries of the Legislature, and if it surpasses the limit, the by-laws can be knocked down.

Demonetization and the Controversy of Power Delegation

In line with Section 26(2) of the Reserve Bank of India Act, 1934, the Union government has the right to promulgate notice that a particular rupee denomination is no longer considered legal tender. Any assortment of bank notes regardless of denomination are going to cease being considered legal tender with consequence from a certain date, the centre declares through publishing in the Gazette of India, on its recommendation of the Central Board of RBI. Parliament passed the RBI Act to grant the central government the power to change the features of legal money. The legal foundation of the demonetization exercise was largely formed through a gazette notification issued by the central government utilizing its jurisdiction.

Conclusion

Delegated or subordinate legislation signifies legal provisions made under the authority of a parliamentary act. Even if the governing body has the capacity to enact laws, it can delegate that authority to other groups or individuals by resolution. The resolution that granted such authority is known as the Enabling Act. The Enabling Act defines broad regulations for the council, while delegated authority sets nitty-gritty principles. Delegated authority’s constitutionality Legislation simply refers to the limitations in a country’s constitution that allow the legislature to delegate power to make rules to other authorities or administrative authorities. The purpose of expanding the government’s power is to address socioeconomic issues as soon as possible. Legislative delegation has both advantages and disadvantages. If the courts must impose limitations on the legislature’s delegation power, they must do so on the basis of broad concepts and legal theories.

Delegated or subordinate legislation refers to laws enacted through a parliamentary act. Even while the legislative body has the authority to make laws, it can delegate that authority to various organizations or people by a resolution. The Enabling Act is the piece of legislation that authorized this delegation. The council establishes general regulations by means of the Enabling Act, and the delegated power determines specific principles.

Delegated legislation is a vital part of the legislative process, yet it often receives insufficient attention. According to Justice Krishna Iyer in Avinder Singh v. State of Punjab[11], “the law-making procedure leaves plenty to subordinate legislation, which, in practical terms, signifies submission to the substitute, viz., the bureaucracy which maintains commanding heights inside the Secretariat.” The technocracy and bureaucracy, which largely craft subordinate legislation, may be well-intentioned and well-informed. In its extreme forms, the idea of delegation is laden with democracy by proxy of a clique, of whom the nation, in its naiveté, may be unaware.” As a result, it is not surprising that the entire process of delegated legislation is so widespread in our system. The current circumstances necessitate the quick application of delegated legislation. National emergencies, like the COVID-19 pandemic, allow authorities to make decisions that are best suited to the circumstances. The only prerequisite for delegated legislation is that the laws made by authorities other than the legislature be checked and monitored, for which the judiciary exists. Overall, the concept of a profound persistence of laws is unavoidable.

 References

1. Types of Delegated Legislation (June16, 2023, 11:15 P.M) https://images.app.goo.gl/cApb8MCKhg39Pz4K7
2. Gupta, Om Prakash. “Judicial Control over Delegated Legislation in India: An Analysis.” The Indian Journal of Political Science, vol. 69, no. 4, 2008, pp. 1017-1034.
3. MP Jain and SN Jain, Principles of Administrative Law 42 (2013)
4. Swarnim, Pankhuri, Judicial, Legislative and Other Controls over Delegated Legislation in India, International Journal of Law Management & Humanities, volume 3, 2020
5. Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson, Theory of Legislative Delegation, 68 Cornell L. Rev. 1 (1982) Available at: http://scholarship.law.cornell.edu/clr/vol68/iss1/1  
6. Article 312, the Constitution of India, M.P. Jain, _Indian Constitutional Law_, 960, 2052, (8th ed., 2018)

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[1] Indian Oil Corporation v. Municipal Corporation, Jullundhar, AIR 1993 SC 844: (1993) 1 SCC 333.

[2] 1878 3 AC 889

[3]  (1945) 47 BOMLR 260

[4] Raj Narain vs. Chairman, Patna Administration Committee, AIR 1954 SC 569; Cases, I, 101

^[5] Hamdard Dawakhana vs. Union of India, AIR 1960 SC 554: (1960) 2 SCR 671

[6] D. S. Garewal vs The State of Punjab And Another , AIR 1959 SC  512 : 1959 SCR Supp  (1) 792

[7] Article 312, the Constitution of India, M.P. Jain, _Indian Constitutional Law_ , 960, 2052,(8th ed., 2018)

[8] Kruse v. Johnson, [1898] 2 QB 91

[9] In Re the Delhi Laws Act, 1951 AIR 332

[10] Chintaman Rao and Ors. v. State of Madhya Pradesh, 1951 AIR 118

[11]  1979 AIR 321