This article is written by Priya Das of 5th Semester of Bikash Bharati Law College, University of Calcutta, an intern under Legal Vidhiya
ABSTRACT:
In a democratic country where the functions work of government is increasing day by day there it is not possible to control and perform all the work by one organ. Indian government has three pillars, executive, judiciary and legislation. The works are divided between those organs of government in order to reduce the pressure of workload. Legislature has the power to make laws for the country and its people. Sometimes the burden of work overloaded upon legislature at that time in order to reduce this burden the Parliament of India, the primary legislation delegate its power to some power to the executive for making several laws. As the executive has law making power in certain conditions. Those laws should have to be made with legislative authority. Delegated legislation is controlled by the Parliament directly or indirectly or through courts. If there is any law made contrary to law it will be declared void or the court has power to challenge the laws made by delegated legislation if it is found in violation of individual right.
KEYWORDS:
Legislation, executive branch, law, rules, regulations, authority, citizens.
INTRODUCTION:
There is particular definition is given in Constitution regarding delegated legislation. Article 312 of Indian Constitution permits Rajya Sabha to create All India Service. Where Primary legislation delegates its power fir making laws. As there are four pillar of government which are given the power for implementing, enacting laws and to resolve the ambiguities if any created. Those pillars are legislative, the executive, judiciary and press. Legislature has the power to make laws and executive implement those laws. But legislative gives the executive to make laws in certain cases. In this article we will discuss the meaning concept advantages and disadvantages of delegated legislation. According to the Black Law Dictionary the term delegation refers to the act of giving a person to the authority or empowering to perform those acts which are given on the position of the person who has given the power. Delegated legislation means the Parliament provides the power of making laws to executive in particular areas. But those authority remains lower than the authority who has given the power. Delegated legislation also considered as subordinate legislation, secondary legislation, auxiliary legislation. The term auxiliary legislation refers to giving the power of making laws by primary legislation to some authority other than legislative. Only Parliament has the power delegate its authority. As executive has power to make laws it helps to incorporate several people to include in law making process in specific terms. According to sir John Salmond, the power of delegated legislation is other than sovereign power.
CONCEPT:
Primary legislation gives the authority to several body or persons which can be government body or administrative authorities to make laws in some limited cases in order to reduce the Parliamentary workload. The term delegation means to empower an act to another in place of the authority by which it is given. In Indian Constitution there is not mentioned any specific provision for this term but delegated legislation has a great importance in administering the country.
ADVANTAGES OF DELEGATED LEGISLATION:
- Delegated legislation is more flexible as compared to Parliament. It makes more quick decisions and relevant tools.
- As the functions of government increases it leads to need of delegated legislation which more expertise in several knowledge and makes more equivalent result.
- Delegated legislation helps to reduce the work. It helps Parliament to concentrate to larger problems and make decisions in smaller matter.
- Delegated legislation is more effective at the time of emergency as it takes quick decision, it doesn’t have to wait to form parliamentary session to pass an act. Which makes delegated legislation more effective at time of emergency.
- In modern day it is needed that government have to be technically expert to manage the execution of government. Delegated legislation is considered as technically expert in concerning particular matters.
- In case of health, environmental issues, education it creates more complex and effective laws according to the necessity.
- It is more connected with local authority, which helps to make delegated legislation more knowledgeable regarding the local problems and it makes effective laws by observing those problems.
DISADVANTAGES OF DELEGATED LEGISLATION:
Delegated legislation is required at the time of emergency, it helps to reduce the burden of work of parliament and also it is technically expert. But if has several disadvantages, such as:
- The language of delegated legislation in making rules are sometimes difficult to understand to public and Its language leads to ambiguity and confusing.
- Delegated legislation is not all time goes beyond debates in concerning any laws. In Parliament there are held several debates regarding any matter. Which is considered as a dispute of delegated legislation.
- Delegated legislation makes limited participation of public and it creates limited public scrutiny. As it is more connected with local authority it has to consider public opinion in several process.
- As delegated legislation takes quick decision without carried out the matter to the court for attestation. Which leads to inefficiency make those laws ineffective.
SEVERAL TYPES OF CONTROL ON DELEGATED LEGISLATION:
- CONTROL BY PARLIAMENT:
Parliament gives the power to the administrative authority or government body to make rules or regulations for the betterment of country. Parliament has the responsibility to look over the work or those executive authority and the rules made by those authority are consistent or not. The Parliament controls the delegated legislation through directly or indirectly. In direct control the Parliament look over the laws made by those authorities. But in indirect control the laws made are not examine by directly Parliament but several other authorities.
- PROCEDURAL AND EXECUTIVE CONTROL:
Legislature makes particular procedure to those delegated legislation to maintain certain rules and regulations. The parent act gives several guidelines which are needed to follow, in this case the executive is entitled to look after whether those regulations are mandatorily following or not. As the law-making power is given to the administrative agencies, it is necessary to follow those rules. It includes three components: Pre-publication and consultation with an expert authority, Publication of delegated legislation. It can be either Mandatory or Directory, to know, certain specified parameters are given: Scheme of the Act, Intention of Legislature, Language used for drafting purpose, inconvenience caused to the public at large scale, and these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council.[1]
- JUDICIAL CONTROL:
Delegated legislation must have to make law with the consistency with Constitution. It must be with conformity with the law. If any act or law infringes the legality of Constitution will declare void. Court acted as impartiality; it is considered as the Guardian of Constitution. It solves ambiguity and disputes if any arises between authorities. In ensures the supremacy of Constitution. So, as delegated legislation has power to make laws, it applies the doctrine of Ultra vires to maintain the work of delegated legislation.
The term law under Indian Constitution refers that any laws made that have to be consistent and doesn’t violate any provision of Constitution and cannot infringed any fundamental rights guarantees to the citizen. Judicial control is needed in order to confirm that laws doesn’t violate Constitutional provision. Court struck down any provision if it is found inconsistent with law.
- If Delegated legislation made a law or rules which is inconsistent with the Constitution can be declare void. The courts have the power to struck down if any rules regulations are found contrary with law.
- The term Ultra vires is used by court to examine that the rules regulations made by delegated legislation must not beyond its authority. If the act of delegated legislation goes beyond its authority or act as inconsistent then it considered as unconstitutional and court declared it void.
- If any individual is affected by the act made by delegated legislation, the court has the power to examine the act and challenge its validity. If there is found any contrary then this will be declared invalid.
- Judicial review is required to determine whether the act of delegated legislation is mandatory or directory with the Constitution. If the mandatory act is found inconsistent then it declared as void.
- The delegated legislation has given power to limited cases. If it is found to exercise its power excessively, the court has the power to struck down. Excessive delegation refers to criticism and using excessive power stand as unconstitutional and unreasonable.
- Judicial review includes the term principle of natural justice. Delegated legislation must have to do act within manner considering natural justice. If any process fails to comply with this principle, the court have power to struck down. Court have to grant remedies in order to protect individual interest and rights of people, if any act of delegated legislation affect any rights of people is falls under ultra vires.
- Court controls the work of delegated legislation to make sure the act of delegated legislation is appropriate and not consistent with ambiguity and must be reasonable. The procedural requirements of delegated legislation have been performed with legality or not must be checked by Courts. Which includes public consultation, public opinion or other important steps as required.
- The doctrine of non-delegation is also determined by court. This doctrine prevents from delegating of several essential power to the other delegated authorities.
- The principle of proportionality is also applied by court to make sure that the regulations must be proportionate.
- Delegated legislation must have to comply with relevant factors before exercising the power. If it is found that delegated legislation is not able to make proper decision and doesn’t adequate the facts, then it will declare void by court.
SEVERAL CASES REGARDING JUDICIAL CONTROL:
Primary legislation delegates its power in order to reduce the burden of work. But it must have to comply with parent act and doesn’t go beyond its legal authority. There are several cases regarding the judicial review, which includes:
In the case of R. v. Minister of Health, Ex Parte Davi, (1929) 1 K.B. 618. Lord Hewart, in this case Chief Justice grant obstacle to the power of minister in the scheme made under Housing Act, 1925 considering as ultra vires. It was held that any scheme doesn’t go beyond the Constitutionality. In this case it defines limits the law-making power.
Central Inland Water Transport Corporation Ltd. v. Brajonath, AIR 1986 SC 1571: In this case Supreme Court held that Rule 9(1) of Central Inland Water Transport Corporation Ltd. Service and Discipline applied Rules, 1979 was declared void as it was held unconstitutional and infringes several Articles, such as Article 14, Article 39, and Article 41 of Constitution. The court declared that as right to equality was violate by this rule so it held as unconstitutional and invalid.
In A.K. Ray v. India[2], In this case Supreme Court rejected the fact that government unable to bring the certain provision of 44th amendment considering it malafide. The term malafide includes bad faith and consider as acted in deliberate manner without concerning regarding circumstances. In court it is difficult to prove a term as malafide.
In the case of Air India v. Nargesh Meerza[3], the rules and regulations regarding the work of in case of pregnancy held unconstitutional and it should be struck down. The Supreme Court found it violation of Article 14, Article 19 and 21 and held as disrespectful for women.
In the case of State of T.N. v. State of Kerala and Anr. [4]Supreme court held that the ‘public trust doctrine’ principle has no application in context of safety of Mullaperiyar Dam, the court held by applying ‘public trust doctrine’ or ‘precautionary measure, legislature cannot do an act in conflict with the judgement of the highest court which has attained finality, the legislature cannot by invoking the above doctrine indirectly control the action of the Court and directly or indirectly set aside the authoritative and binding finding of the court. The state’s sovereign interest provides the foundation of public trust doctrine but the judicial function is also very important function of the State.[5]
Delhi Law Act Case: In this case, Delegated legislation must act within the limits set. In this case the central government had given the power to repeal pre-existing laws. The court held that executive has given limited power in particular areas and it doesn’t exceed its boundary. Court held that this power was fallen under ultra vires and therefore held unconstitutional.
CONCLUSION:
Delegated legislation is also known as subordinate legislation. As several powers are conferred to the executive branch, it will be required to look over the work of those bodies. Judicial review is required in order to maintain the works of delegated legislation. The laws made by this authority should not go beyond their power. The rules regulations must be consistent with law, it should not contrary to law. Through judicial review if there is arise that any violation of rights of individual by the laws made by those authority, court has the power to challenge those laws. If it is found that laws are violating fundamental rights of citizens it will declare void. The courts have power to examine the actions of those authority. If there is any malicious purpose found then the court declare it as unconstitutional.
[1] Delegated Legislation and its Control, this article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur available at https://blog.ipleaders.in/delegated-legislation/, last visited on 18th October,2023
[2] A.K. Ray v. India, AIR 1982 SC 710
[3] Air India v. Nargesh Meerza, 1981 AIR 1829, 1982 SCR (1) 438
[4] State Of Tamil Nadu vs State of Kerala & Anr on 7 May, 2014
[5] JUDICIAL CONTROL ON DELEGATED LEGISLATION, Author: Utkarsh Bhushan Manipal University, Jaipur Available at https://journal.indianlegalsolution.com/2020/01/15/judicial-control-on-delegated-legislation-utkarsh-bhushan/, last visited on 20th October,2023
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