DELEGATED LEGISLATION, Part -2, ADMINISTRATIVE LAW

CONSTITUTIONALITY OF DELEGATED LEGISLATIVE

Constitutionality of delegated legislation, is the limit that are permissible within a constitution of a country through which Legislature with all his right can delegate its power of rule making to other agencies of administration.

The aim of extending the power of the government is to handle socio-economic problem.

UNITED STATES OF AMERICA

Delegated legislation is not allowed theoretically in the constitution of the USA There is no reference of text has been given in the constitution of the USA which shows that it delegates its power from Legislature to the Executive, due to the following reasons-

• Separation of Power
• Delegatus non potest delegare

The political theory that was propagated by philosophers like John Locke and Montesquieu, were imbued on the framers of the American Constitution.

JOHN LOCKE, said:

• A legislative cannot delegate his powers of lawmaking to any person or cannot place it anywhere.
• He stated the doctrine of ‘delegatus non potest delegare’ as that there should be separate Legislature and Executive because if the power of law making and executive of those laws go in one hand it can be misused and these people use that power to:
  • exempt them from that law and
  • for their private advantage.

MONTESQUIEU:

Montesquieu has given the concept of ‘separation of power’ according to which one person cannot exercise all the three powers of the government i.e. the judiciary, the Legislature and the Executive. All should pursue there work separately:

• Legislature should make laws and should not enforce or administer it,
• Executive should not interfere in the judiciary and legislative working and
• Judiciary should be free from legislative and executive.

Working in America:

• the power to make legislation, has been given to the Congress,
• executive powers given to the President of the USA, and
• the judiciary power of the United States is vested in the hands of Supreme Court and also it might be given to lower court from time to time on the ordain of the Congress.

(due to the adoption of separation of power by the United States, the legislative power can be vested only in the hand of Congress and no organ of the government, which has been further argued that the power to the congress itself has been delegated by the American constitution, so it cannot further delegate its power.)

RELEVANT CASES

Case 1: Field V Clarke

Supreme Court observed that, the owner entrusted to one department should only be exercised by that department without interfering in the power or area of another person.

Case 2: Wagman V Southard

Chief Justice Marshall observed that the line has been not drawn between those subjects, which were important and therefore, regulated by the Legislature itself and those subjects of lower interest which were given to the executive for filing the details in the structure of that legislation.

So, to conclude the delegated legislative in USA:

• it can be said that it has not been accepted in principle but
• in practice, the Legislature has entrusted the power of law-making to the Executive.

UNITED KINGDOM

The doctrine of sovereignty is the core element of the UK Constitution. In England, the Parliament is:

• supreme and there is no limitation by the Constitution on the Parliament and
• has wide powers of delegating its legislative power to the Executive or other subordinate bodies.

SIR CECIL CERR OBSERVATIONS

• Committee on Ministers Powers also refers to a Donoughmore Committee,  released a report in which a famous lawyer of England, Sir Cecil Carr has quoted about three parts of legislations:
  • The first and the very small part made by the Crown under her prerogative powers.
  • The second and the weightiest part made by the King in the Parliament and consisted of Acts of Parliament.
  • The third and the bulkiest part made by such body that the king entrust the power of legislation in the Parliament.
• Sir Cecil Cerr has also observed that parliament is:
  • not willing to delegate the law-making power and
  • the Parliament is unable to provide quality and kind of legislation the modern public wants.

INDIA

In India, delegated legislative is better understood by parting it into two phases:

• Pre-independence
• Post-independence

I. PRE-INDEPENDENCE

Case 1: Queen V Burah

Facts:

• Only conditional legislation has been validated by the Privy Council and thus delegated legislation is not permitted as per its reasoning.
• The administration of civil and criminal justice of a territory can be vested in the hands of those officers who were appointed by the Lieutenant-Governor from time to time.

Privy Council stated:

• It is better to take help from subordinate agency:
• In framing the rules and regulations that are going to be the part of law and
• Giving another body the essential legislative feature that has only given to the Legislature through the constitution.
• It even stated, the essential legislative function that included, determining the legislation policy.

Case 2: King V Benori Lal Sharma

Facts:

• Condition legislative was again applied by the Privy Council in this case.
• The validity of Emergency Ordinance given by the Governor-General of India was challenged inter alia, on the grounds that:
• he is taking the power of the Provincial government, and
• Setting up special criminal courts for particular kind of offences but for the settling of any court, power has been given only to the Provincial Government.

Judicial committee held:

This is not delegated legislation.

Privy Council held:

It is an example of an uncommon legislative power by which the local application of the provision of State determined by the local administrative body when it is necessary.

II. POST-INDEPENDENCE

The Constitution of India does not provide the same position as the prominent British Parliament provided to the delegation of legislative powers and also how far delegation is permissible has got to be confirmed in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an exhaustible right of delegation is inherited in the legislative power itself.

Case 1: Raj Narain V Chairman, Patna Administration Committee Air

The supreme Court of India upheld the delegation of power given to the executive by the legislature.

Case 2: Lachmi Narain V Union of India

Facts-

• The Central Government exercising the power that it has got from section 2 of the Part State Laws) Act, 1950, which extended the Bengali Finances (Sale tax) Act, 1941 to the Part State of Delhi with certain modification in section 6 through a notification.
• By various notifications, the granted sales tax on various commodities was exempted but subsequently, the exemption was withdrawn by another notification.
• Dealers, who were indulging in those commodities, challenged the validity of that withdrawal.

Judgment-

• It was held in this case that the notification issued by the Central Government is beyond its power conferred on it by Section 2 of the Union Territories (Laws) Act, 1950.
• Thus, in consequence of any type of notification issued by the Central Government is invalid and ineffective.

Although the concept of delegated legislation was not mentioned specifically in the Indian constitution it can be understood by interpreting Article 312 of the given Constitution.

Article 312, gives right to the Rajya Sabha to open a new branch of all Indian Service with a majority of two-third of vote. This means that some powers of legislation will be delegated to the new recruiter of All India Service.

RELEVAN CASES

Case 1: D.S.Grewal V The State of Punjab

Facts-

The case has been very serious, as:

• the appellant can be removed or compulsorily dismissed from the post by the Central Government and
• therefore the central Government has instituted enquiry against him.

Judgment-

K.N.Wanchu, Justice of the Supreme Court at that time delt with the power of delegated legislation under Article 312 of the Indian Constitution.

 There is nothing mentioned in Article 312 of the Indian Constitution that takes away the power of delegation.

Case 2: Sikkim V Surendra Sharma

Facts-

• After, Sikkim became the State of the Union of India, the Directorate of Survey and settlement of Government of Sikkim created and advertised for certain temporary posts.
• Like other people, the respondent has also applied for the post. They got selected and were appointed in different capacities.
• After survey work got completed some of the employee got terminated from the job.
• In 1983, some of the employees who were ‘not locals’, filed a writ petition in the high Court of Sikkim challenging the decision of the Government asking why it has fired the employees from the services on the ground that they were not locals.

Judgment-

• The termination of the employees solely on the ground that he is not local is impermissible under Article 14 and 16 of the Indian Constitution.
• It was held that all rules and legislations created under the power which is granted under sub-section (k) of the Article 371F constituted subordinate legislation.
• Article 371F was added to the Constitution through the 36^th Constitutional Amendment.

CONSTITUTIONAL LIMITATIONS ON LEGISLATIVE DELEGATION

Legislature in India has been held to possess wide powers of delegation. This power is, however subject to one important limitation.

• The legislature cannot delegate essential legislative functions which consists:
  • determination or choosing of the legislative policy and
  • formally enacting that policy into a binding rule of conduct.
• The legislature cannot delegate ‘uncanalised and uncontrolled power.’ The Power delegated:
  • must not be unconfined and vagrant but
  • must be canalized within banks that keep it from overflowing.

(Delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down.)

• The legislature cannot delegate its power:
  • to repeal a law or
  • even to modify it in essential features.

(These are cases where the Legislature:

• does not limit the delegation to ancillary or subordinate legislative functions,
• but parts with the essential legislative functions and thereby transgresses the limits of permissible legislation.)
• When the Legislature requires the delegated legislation to be laid before it, there is no abdication as the delegate is kept under the vigilance and control of the Legislature.

CONTROL OVER DELEGATED LEGISLATION IN INDIA

The practice of delegated legislation today is now well-established. It is regarded as inevitable. But it does not imply that the executive and its rule making may be exercised arbitrarily. In order to ensure that the power of delegated legislation is not misused, it has been subjected to three-fold controls. These modes of control may be classified into:

• Procedural control,
• Parliamentary control and
• Judicial control.

PROCEDURAL CONTROL

It is impossible for Parliament to exercise effective control over delegated legislation. Therefore certain procedural safeguards have been provided which are relevant to keep constant watch over the exercise of this power by the administrative authority.

In India there is no general provision of law, requiring consultation of the affected interest in the process of rule making. Where consultation is required, such words, “the power to make rules shall be subject to the conditions of previous publication” are interested in the parent Act.

It is notable that in some statutes provisions are laid down conferring the power on the affected interests to initiate and frame rules by themselves. For example, section 9-A of the Forward Contracts (Regulations) Act, 1952, authorized the recognized association to make rules with respect to several matters mentioned therein. These rules become effective after having been approved by the Central Government. The Government can also make such modification as it deems fit.

PRIOR PUBLICATION OF PROPOSED RULES AND REGULATIONS

• The practice of prior publication has been adopted wherever prior consultation has been deemed necessary.
• According to section 23 of General Causes Act, 1897, the authority shall publish the draft rules for information of affected interests in matter as it deems sufficient.
• The authority shall take into consideration any such objection which may be received by it while finalizing the rules.

PUBLICATION OF DELEGATED LEGISLATION

• Publication of any law, rules or regulation is extremely necessary to ensure full justice to the public.
• There is no general statutory provision requiring or regulating publication of delegated legislation. But there is a general practice to publish them in the gazette of India.
• Sometimes Parent statute also provides for their publication in the gazette.
• No attempt has been made in India to codify them regularly.
• The Government of India commenced in 1960 publication of various rules in a codified from but its progress is quiet slow and the volumes so far codified up to date do not contain annual supplements.

PARLIAMENTARY CONTROL

In India the Parliamentary control of delegated legislation follows the same pattern as in England.

COMMITTEES IN REGARD TO PARLIAMENTARY CONTROL

Dr. Ambedkar in 1950 suggested in the house that like Standing Committee in House of Commons in Great Britain, in India too there should be committees in the Lok Sabha.

I. FORMULATION

The committee was formed on 1^st December, 1953, known as committee of Subordinate Legislation at the Lok Sabha.

II. CONSTITUTION

• The Lok Sabha Committee consists of 15 members.
  • Where, members are appointed by the Speaker for a year.
• The Rajya Sabha committee similarly consists of 15 members.
  • Who, are nominated by the Chairman of Rajya Sabha.

III. MEMBER’S COMPETENCY AND QUALIFICATION

A member must be from:

• sound and
• possess anti partial and neutral orientations.

IV. POWERS

• The procedure of both Houses analyses the borders of the Committee’s power.
• Committee examines whether:
  • the rules are in accordance with the Constitution and the Act under which they have been drafted,
  • there has been an unusual delay in the publication of the rules,
  • there is a retrospective application of the rules,
  • they bar the jurisdiction of the courts,
  • they include expenditure from the Consolidated Fund of the India.
• The Committee does not examine:
  • all the subordinate legislation laid in the parliament.
  • For instance, these might, include the orders that government business such as part of routine government business such as the land acquisition, the revision of traffic under Customs Act, etc.

V. WORKING

• The core role of the committee is to look whether the powers of the delegated powers by the Parliament to the government is being rightly exercised (Companies Bill, 2009; report of the Standing Committee on Finance, 2010).
• Each committee scrutinizes the statutory rules, bye-laws, etc. made by any administrative body are reports to the House whether the delegated power has been exercised properly within the limits provided under the parent Act or Constitution.
• Such committees would examine delegated legislation and would “bring to the notice of parliament whether delegated legislation has exceeded the original intention of parliament or has departed from it or has affected any fundamental principle.”

LAYING OF RULES IN REGARD TO PARLIAMENTARY CONTROL

• Generally, in the Central statutes there is a practice of laying the rules made by any administrative body before each house of parliament, while it is in session, for a total period of thirty days. Before the expiry of the session, the Houses can:
  • make modifications in the rules or
  • even annul it.
• Laying is of two types:
  • simple laying-
    • laying the rules come into effect even if they have not been laid and
  • mandatory laying-
    • Laying, if the rules made by administrative bodies are not laid in draft within a stipulated time its non-laying would affect the legal validity of the rules.
• Validity for laying:
  • It may be further noted that where the rules framed by the Executive are ultra vires the Act and they have been laid before the House, the laying before the Houses does not make them valid.
  • The committee also disfavored the rules on the ground of their being in complicated language. It recommends for the simple language for an easy understanding of justice.

Case 1: Express Newspaper V Union of India, 1958

The Supreme Court observed that provision of layong is mandatory.

Case 2: Kerala Education Bill,re, 1958

The Supreme Court observed-“After the rules are laid before the Legislative Assembly, they may be altered or amended and it is then that the rules as amended become effective.”

JUDICIAL CONTROL

• The delegated legislation does not go beyond the reach of the judicial review of the Supreme Court and of the High Courts. Judicial control over delegated legislation is exercised at the following three levels-
  • The enabling Act or delegating statute being unconstitutional.
  • The subordinate legislation violating the Constitution.
  • The subordinate legislation being ultra vires the delegating Act.
• The delegation can be challenged in the courts of law as being unconstitutional, excessive or arbitrary. The validity of the rules can be challenged o the ground of substantive ultra vires is of 2 kinds:
  • If the rules made under delegated legislation are against the provisions of the Act and
  • If the rules made under delegated legislation are in excess of the authority delegated by the Legislature.
• When the court applies the method of substantive ultra vires rule, it examines:
  • While the contents of the rules and regulations without probing into the policy and wisdom of the subject matter and
  • whether the rules and regulations in their pith and substances are within the import of the language and policy of the statute or not.
• While applying a method of substantive ultra vires rule, court further examines the rules made under delegated legislation cannot:
  • go against the intent of statute and
  • inconsistent with the provisions of the Act.
• The rules made under delegated legislation are:
  • framed for giving effect to the provisions of the Act,
  • not for nullifying their effect and
  • not to be in excess of the authority delegated to the rule-making body.

Case: Radhakrishna V State of M.P.

It was laid down that a rule may become ultravires for not being made in the manner prescribed by the Enabling Act. The rules were directed to be made by the State Government with the concurrence of the Central Government but the rules were made without such concurrence of the central government. The rules were held to invalid. 

CONCLUSION

Scholars have consistently presented different and even contradicting views about delegation of power to legislate and have thus taken different stands on the issue. Although law making is the function of legislature, it may by a statute, delegate its power to other bodies or persons. The state which delegates such power is known as Enabling Act the legislature, lays down the broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. In order to ensure that the power of delegated legislation is not misused in the hands of executive it is necessary to adopt effective modes of control, which India has not incorporated yet.

BIBLIOGRAPHY

Delegation of legislative to executive: A comparative analysis of Indian and United States laws TJPRC Publication

Chapter XIV, Subordinate or delegated legislation

EDMDL_ Submission_2_docx.doxc

https://blog.ipleaders.in/delegated-legislation-in-india/amp/#Constitutionality_of_delegated_legislation