JUDICIAL CONTROL OF DELEGATED LEGISLATION

This Article is written by Anju Malik of Department of Law, Bhagat Phool Singh Mahila Vishwavidyalya (Khanpur Kalan), an intern under legal vidhiya.

ABSTRACT

Delegated legislation, often referred to as secondary legislation or subordinate legislation, is the process by which a higher authority—typically the legislature—grants law-making authority to a lesser authority, such as the executive or administration. Using the power and guidelines established by the parent statute, this delegation enables the subordinate authority to adopt particular laws and regulations. Although the delegation of authority is essential for effective administration, it is critical to have control mechanisms in place to guarantee that the authority is used properly and within the parameters established by the parent statute and the constitution. The three main checks on delegated legislation are judicial checks, executive checks, and legislative checks.

Legislation that was delegated used a phrase that might be used to mean many different things. He saw it as an excuse for the Legislature, a cover for Executors, and a challenge to the Constitutional Jurist : Justice P. B. Mukherjee

The ability to enact laws Is a power that has been granted by the higher authority to the lower authority. The ability to enact laws is known as “delegated legislation,” which refers to the legislative authority granted to the executive or administration. Before we proceed further let’s take a quick glance at the meaning of “Delegated Legislation , and it’s control mechanism ”.

KEYWORDS

Delegated legislation, Parliamentary control, Judicial Control, Executive Control, Ultra – vires, Mala fide,  Excessive delegation, sub-delegation.

INTRODUCTION

The legislature, which has the most power in the state, is said to have passed the supreme law. Subordinate/delegated legislation is legislation that has been passed by a body other than the Supreme Authority while acting under the authority that has been delegated to it by the Supreme Authority.

The legitimacy and continuation of delegated law depends on the same supreme or superior authority. The “Parent Act” gave the executive and administrative authority the ability to make laws, which led to delegated legislation. The Parent Act, also referred to as the Primary Act, is a law passed by the legislature that grants the executive with legislative authority. Subordinate Laws, often known as “Child Legislature,” are the executive’s rules, regulations, orders, bylaws, and other measures performed in the execution of the legislative authority granted by the legislature. The Parliament delegated these responsibilities to the legal authorities because they were unable to handle every facet of the governance system on their own. Statutes, often known as delegated legislations, make mention of this delegation.

For instance, regulations and by-laws (rules issued by local authorities that only apply in their jurisdiction) under laws. 

A sort of law known as ”delegated legislation” is often one that is created by the executive authority in accordance with the authority granted to them by the primary authority in order to carry out, implement, and manage the requirements of the primary authority. It is possible to say that it is any law that is made by a body that has access to parliamentary authority. Administrative law also refers to it as secondary legislation. It permits the lower levels of government to enact legislation in accordance with the specifications. A Parliamentary act has the entire ability to grant the right to create legislation to any individual or organization. An act of parliament establishes the parameters of a certain law, which typically serves as an outline of its intended use.

TYPES OF CONTROL ON DELEGATED LEGISLATION

The ability to enact laws is a power that has been granted by the higher authority to the lower authority. Delegated lawmaking refers to the authority granted by the legislature to the executive branch or administration to make certain laws. The three basic types of control mechanisms under delegated legislation are:

• Control by the legislature,
•  the judiciary, 
• the executive

There are basically three branches of government :

• Legislature
• Executive
• Judiciary

LEGISLATURE : Enacting legislation is the legislature’s primary duty.

• It is the foundation upon which the executive and judicial branches of government are built.
• In addition, it is occasionally given precedence over the other two organs because without legislation, laws cannot be implemented or applied.

EXECUTIVE : The executive branch is responsible for carrying out the laws passed by the legislature and upholding state policy.

• It is the government’s head of administration.
• Members of the executive include the president, governors, and prime minister/chief minister.

JUDICIARY : The judicial branch of the government is responsible for interpreting the law, resolving conflicts, and providing justice to all citizens.

• Both the protector of the Constitution and the watchdog of democracy are regarded as the judiciary.
• It is made up of the District, High, and Supreme Courts, among other lower courts.

Let’s  discuss control mechanism on delegated legislation.

[1] PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION [ CONTROL BY LEGISLATURE]

It is up to Parliament to grant authority to anyone; similarly, when it transfers legislative authority to another body, such as the executive, it must ensure that the government possesses the right to utilize that authority and that it does not misuse its position.

In a parliamentary democracy, the legislature’s role is to pass laws, and it has the right—and perhaps the obligation—to monitor its agents’ performance. It Is a reality that the scope and effectiveness of judicial control have decreased as a result of power transfers and universal norms of control.

Given that there are two levels of legislative power in India, “Parliamentary control” is a naturally occurring constitutional role.

• Initial stage
•  Direct and indirect stage 

[2] JUDICIAL CONTROL OVER DELEGATED LEGISLATION

Judicial control, or the ability of the court to maintain administrative actions within the bounds of the law, refers to the control that the courts wield over the administration. It also means that a resentful person has the right to file a legal challenge to the improper administrative action. Ensuring the legality of administrative acts is the main way in which judicial oversight over administration serves to defend people’ rights and liberties. “The end sought by judicial control of administrative acts is to ensure their legality and thus, protect citizens against unlawful trespass on their property,” as L. D. White so eloquently notes, “is the purpose of legislative supervision principally to control the policy and expenditure of the executive branch.

The Judicial Review has jurisdiction over the delegated legislation, and in almost every nation, the courts have the authority to rule on the legality of delegated legislation. Even with legislative control present, judicial oversight over delegated legislation is seen as a crucial form of control. Courts’ constitutional duty to uphold the rule of law notion serves as the primary foundation for judicial review. In a state governed by a constitution, the judiciary plays a crucial role in upholding the constitutionality of the laws passed by Parliament and ensuring that any delegated legislation enacted under the parent statute and the constitution is constitutionally permissible. Since the courts can overturn a legislation if it violates the Constitution or the parent laws, judicial control is thought to be a more effective type of control.

When an act is carried out by a person or group of people who are acting outside of their power, authority, or jurisdiction, it is referred to as being “ultra vires ,” which meaning beyond power, authority, or lack of power.  The rule of law was enhanced by judicial scrutiny. The court must determine whether the authority granted is within the parameters established by the constitution. Legal review is more effective since the court explicitly overturns the rule that is manifestly unconstitutional even when it does not urge doing so. According to Section 13(3)(a), “Law” is defined in the Indian Constitution in a way that makes it apparent that no state may pass laws that restrict the freedoms guaranteed in Part iii of the Constitution. It is based on two fundamental premises:

• the Indian Constitution 
• the enabling Act are violated by this action

When the parent act is unconstitutional: If the parent act in and of itself breaches the terms of the constitution, it is deemed invalid and unconstitutional. Any legislative power delegation done pursuant to the parent act in such circumstances is also null and void. If the parent act or the delegated law is proven to be in violation of constitutional provisions, the courts have the power to invalidate both.

• Delegated legislation not authorized by the enabling act: The enabling act, which specifies the boundaries of the delegated powers, serves as the legal foundation for delegated legislation. The courts may strike down delegated legislation if it goes beyond the scope of the enabling act’s jurisdiction. The courts make sure that the delegated law stays within the enabling act’s parameters and does not exceed the delegate’s authority
• Delegated legislation is ultra vires the constitution  In some circumstances, a parent act may be legitimate, but the delegated legislation created in accordance with it may be unconstitutional. For instance, the courts may invalidate delegated legislation if it violates fundamental rights or other constitutional clauses. Separate from the parent act, the courts look at the delegated legislation’s constitutionality to make sure it doesn’t go over the constitution’s bounds.

• Delegated legislation is ultra vires the parent act: When delegated legislation is shown to go beyond the authority granted by the parent act, its legality may be called into doubt. The delegated law is evaluated by the courts to determine if it adheres to the limitations imposed by the parent act. The delegated legislation may be judged ultra vires and declared invalid by the courts if it goes beyond the authority granted by the parent statute.
• Delegated legislation is ultra vires any general law or rule of law: If delegated legislation violates or conflicts with an existing law, it may be contested. The courts make sure that delegated legislation doesn’t make something legal that is already illegal. The delegated legislation may be ruled to be ultra vires and revoked by the courts if it is discovered to be in violation of general laws already in place or the rules of the rule of law.
• Unreasonableness: A statute generally cannot be contested on the basis that it is irrational. However, if delegated legislation is deemed inappropriate in light of the facts of a specific instance, the courts could decide to nullify it.

The idea of reasonableness depends on the circumstances, the context, and the consequences of the law, and the courts are qualified to judge whether the in question delegated legislation is reasonable.

• Mala fide (bad faith): It is difficult to establish that a challenge to delegated law is being made out of malice or other ulterior intentions. The Act may, however, be declared illegal in a few exceptional circumstances if there is compelling proof of poor faith or improper motives. If the enactment of the delegated legislation was motivated by malice or other wrong intent, the courts may investigate the delegate’s intents and deeds to ascertain this.
• Excessive delegation Delegating legislative authority in excess of what is deemed reasonable and necessary is referred to as excessive delegation. Although excessive delegation is rarely used as a defense by Indian courts to invalidate delegated legislation, it is a valid point of contention. If the enabling statute expressly or implicitly provides for it, it is usually accepted.
• Sub-delegation A delegate generally isn’t allowed to transfer their authority to another person. Sub-delegation might be allowed in nations with written constitutions, nevertheless, provided there is an explicit provision that permits it. In these circumstances, if it is discovered that an act performed under sub-delegation violates the enabling statute or the constitution, the validity of the conduct may be questioned.
• Non-compliance with court orders: The court has the authority to annul a particular act of delegated legislation if the government disobeys a court order on it. Judicial review is a concept that courts use to make sure that laws and other acts taken by the government comply with its rulings and decrees. The delegated legislation may be considered invalid if it is not followed by a court order.
• Non-application of mind:  If it is clear that the delegatee did not take the pertinent facts and circumstances into account when using their authority, delegated legislation may be deemed invalid. The courts look at whether the delegatee used their judgment, thought through the situation, and came to a fair and informed conclusion. The delegated legislation may be invalidated on the grounds of non-application of mind if it is discovered that the delegatee did not sufficiently consider the pertinent factors.

These checks and balances are essential in ensuring that delegated legislation adheres to the rules of law, respects the constitution, and upholds the values of justice and fairness. The courts uphold the rule of law by acting as its stewards, exercising their power to review and, if necessary, reject delegated legislation that exceeds its bounds or transgresses core legal norms.

BASIS OF JUDICIAL CONTROL : RULE OF LAW

India adopted the idea of the “rule of law,” which has its roots in England. It is also a requirement of the rule of law that no one be treated arbitrarily or harshly. When we talk about the rule of law, we imply that, regardless of a society or an individual, he must be ruled by the law rather than by a man or ruler. Put another way, rule of law refers to the law of the country under Article 13 of the Indian Constitution. In his seminal work Introduction to the Study of the Law of the Constitution, published in 1885, Professor A.V. Dicey extended this idea and proposed three tenets or postulates of the rule of law.

1. Absence of Arbitrary Power : No man is subject to punishment or can be rightfully forced to suffer physically or materially unless there has been a clear violation of the law that has been proven in a regular court setting. Dicey continued by saying that no one ought to possess excessively broad, capricious, or discretionary authority.
2. Equality before law: Equal treatment under the law and equal submission of all classes to the ordinary law of the land, to be administered by regular law courts, are the second and third Dicey principles. This principle stresses everyone, including the government, regardless of their position or status. However, this component is erroneous and currently going through a critique phase. Equal submission of all classes to the common law of the land, as expressed by Dicey, is a prerequisite for equality before the law. Furthermore, he questioned the Droit Administration judicial system in France, which included distinct tribunals to hear issues between civilians and public officials.
3. Predominance of Legal Spirit : As per the third Dicey principle, it is commonly assumed that citizens’ legal liberties originate from the written constitution. Nevertheless, this is untrue because Britain has a “unwritten Constitution.” The true foundation of English law is the legal spirit. Customs, norms, and judicial rulings all reflect the spirit of the law. According to Dicey, there is greater safety and protection for individual liberties and rights in Britain than in France. Every administrative decision must have legal support and be carried out in compliance with the law, according to Dicey’s definition of the rule of law.

CASE ON JUDICIAL CONTROL OVER DELEGATED LEGISLATION

“ KRUSE V. JOHNSON[1] The UK court established rules in this case to evaluate the reasonableness of bylaws. According to the ruling of the court, by-laws would be deemed irrational if they were partial or unequal, obviously unjust, showed evidence of bad faith, or entailed undue interference with the rights of the people without a valid justification. The court’s responsibility to assess and invalidate bylaws that fall short of these criteria for reasonableness is highlighted by this case.

DELHI LAW CASE[2] In this instance, the authority to repeal existing laws was conferred to the central government through an act. The court, however, determined that the use of such power was supra vires, or outside the bounds of the legal authority conferred. The court’s ruling in this case highlights the importance of its function in making sure that the executive branch stays within the bounds of the law and does not go beyond its entrusted authority.

CHINTAMAN RAO V. STATE OF MADHYA PRADESH[3] This time, it was against the rules for a Deputy Commissioner to roll bidis—hand-rolled cigarettes—during the growing season. In The Indian Constitution’s Article 19(1)(g), which provides the right to practice any profession, occupation, or trade, was found to be violated by the court, who determined that this prohibition was unlawful. The court’s ruling exemplifies how important it is to evaluate presidential acts and toss them out of court if they violate fundamental rights protected by the constitution.

These instances show that the executive branch is subject to judicial oversight. In order to ensure that executive acts comply with constitutional requirements, statutory restrictions, and fairness and rationality criteria, the judiciary is essential. The courts serve as a check on the executive branch by examining executive actions and invalidating those that are regarded to be against the law, irrational, or going beyond the scope of the authority granted, protecting the rights and interests of the populace.

[3] PROCEDURAL AND EXECUTIVE CONTROL

Until the legislative mandates that the executive follow specific rules or procedure, there is no specific procedure for it. It can take a while to adhere to a specific format, which would definitely negate the purpose of the deed. Therefore, procedural control refers to the set of rules that are required to be followed under the Parent Act, regardless of whether doing so is required by law or not.

IT INCLUDES THREE REQUIREMENTS : 

• Consultation with an authority in the field before to publishing,
• Delegated legislation is published.
• Rules setting.

CONCLUSION 

Delegated legislation has become increasingly important in administration since administrative law expanded in the 20^th century. Due to the ever-expanding state activities, delegation is essential for the parliament to carry out all of its functions; however, the delegated legislation must not exceed its authority or misuse its power. The courts will decide whether the delegated legislation is valid under the parent Act’s intra vires or ultra vires. In India, the parliament committee must have sufficient power and separate laws must be created and passed that provide a uniform set of rules for publication and laying down if parliamentary control overrides delegated legislation. To assess if the job being delegated is being done properly and in the right direction, a committee needs to include a dedicated body. To avoid systemic disorder, each of the three organs should pay close attention to what they are doing and refrain from interfering.

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[1]  https://learninglink..com/static/5c0e79ef50eddf00160f35ad/casebook_80.htm

[2] https://indiankanoon.org/doc/1814791/ oup

[3]  https://indiankanoon.org/doc/1256541/