This article is written by Shobhna Aggarwal, a student of Banasthali Vidyapith. This article talks about the intricacies of the control mechanism as enumerated under the Constitution of India, 1950. The concept of delegated legislation has been discussed in brief so as to further the idea of control mechanisms. Control mechanisms are mainly of two types – parliamentary and judicial.
The Indian Constitution grants the legislature the power to create laws for the government. Determining a legislative framework and interpreting it as a code of conduct is one of the most critical legislative roles. Such entities cannot be granted similar jurisdiction. However, with the wide variety of operations carried out by a welfare State, it is difficult for the legislature to execute all of the other tasks. Delegated legislation joins the picture in such a scenario. This is among the most critical facets of government since it allows the president to carry out such statutory duties. As a result, delegated legislation is a mechanism in which primary legislation gives executive power to make regulations and carry out and implement primary legislation’s requirements. In the Re Delhi Laws Act case, J Fazl Ali said that :
“…the expressions “delegated legislation” and “delegating legislative power” are sometimes used in a loose sense, and sometimes in a strict sense. These expressions have been used in the loose sense or popular sense in the various treatises or reports dealing with the so-called delegated legislation … There can be no doubt that if the Legislature completely abdicates its functions and sets up a parallel Legislature transferring all its power to it, that would undoubtedly be a real instance of the delegation of its power. In other words, there will be a delegation in the strict sense if legislative power with all its attributes is transferred to another authority .”
In the case of Gwalior Rayon Mills Mfg. (.) Co. Ltd. v. Asstt. Commissioner of Sales Tax, the Supreme Court emphasized the need for delegated legislation, also known as subordinate legislation, and said that:
“The bulk of contemporary socio-economic laws made by the Parliament establishes governing standards and strategy. Because of the time limitations imposed by the time factor, politicians seldom go into depth. As a result, delegated law is made available in order to achieve stability, elasticity, speed, and the capacity to experiment.”
In Jyoti Prasad v. Union Territory of Delhi, AIR 1961 SC 1602 it was held that delegation authority is an essential aspect of statutory power. The very evidence that the statute is skeletal or that those charged with enforcing the rule have discretion is no ground for arguing undue delegation of legislative powers.
Control mechanism over delegated legislation and governance framework in India
Any biases there would have been concerning delegated regulation in the past, it is now known as unavoidable. Instead of fighting against it, it would be more important to understand the protections that should regulate how delegated law functions in the region. There is little question that the practice of delegated law entails the legislature’s abandonment of its constitutional role to some extent. Administrative law is often used to discuss questions of policy. The system of delegated laws greatly increases the executive’s powers thus weakening the legislature’s position.
It goes without saying that executive delegated legislation is a string instrument in the hands of the president: it is just as effective as a constitutional authority in the hands of the legislature when it comes to influencing private rights and liberties. Although legislation is subject to the normal democratic protections of public transparency and debate in the legislature, executive orders are not subject to these safeguards, and thus “the protection of liberty” that relies on the law-making authority being exercised by elected officials of the citizens who will be impacted by the laws that are made is missed. When the members of the population can not efficiently regulate the making of the rules that the people would uphold, self-government is jeopardized.” The bulk of delegated regulation is bureaucratic in nature. Since the executive branch is not to be permitted to behave unilaterally, the issue of restrictions on delegated legislation becomes essential.
In Sukhdev Singh v. Bhagat Ram, 1975 the Supreme Court held, delegated legislation is the only viable remedy during emergencies and when there is a need for quick reactions.
In Hamdard Dawakhana v. Union of India, 1960, the Supreme Court ruled that the Constitution has not barred the delegation of legislative power by the legislature to the executive in particular. It is however a null matter that the executive cannot be granted important legislative functions by the legislature. The legislature itself has the power to lay down legislative policy. Entrusting that authority to the executive will only be like creating another legislature. Hence, delegated legislation is an important aspect of governance in India. It is necessary for various reasons, the smooth functioning of the government & enacting laws for the welfare of the country is the most significant.
The governance structure of India
Any biases there would have been concerning delegated regulation in the past, it is now known as unavoidable. Instead of fighting against it, it would be more important to understand the protections that should regulate how delegated law functions in the region. There is little question that the practice of delegated law entails the legislature’s abandonment of its constitutional role to some extent. Administrative law is often used to discuss questions of policy. The system of delegated laws greatly increases the executive’s powers thus weakening the legislature’s position. It goes without saying that executive delegated legislation is a string instrument in the hands of the president: it is just as effective as a constitutional authority in the hands of the legislature when it comes to influencing private rights and liberties.
Although legislation is subject to the normal democratic protections of public transparency and debate in the legislature, executive orders are not subject to these safeguards, and thus “the protection of liberty” that relies on the law-making authority being exercised by elected officials of the citizens who will be impacted by the laws that are made is missed. When the members of the population can not efficiently regulate the making of the rules that the people would uphold, self-government is jeopardized .”The bulk of delegated regulation is bureaucratic in nature. Since the executive branch is not to be permitted to behave unilaterally, the issue of restrictions on delegated legislation becomes essential.
Elaborating on the three elements:
Legislature – Control over delegated legislation will be of the following types:
1. Control of the legislature over delegated legislation (Direct Control): It is the parliament’s responsibility to legislate in a representative democracy. When the Legislature decides to transfer its statutory authority to the executive for whatever purpose, it is not only its right but also its duty, as principal, to control how its representative, the Executive, carries out the functions assigned to it. Since the legislature assigns or delegates legislative power to the government, it is mainly the legislature’s duty to ensure the effective operation of delegated legislative power, to supervise and monitor the administration’s actual exercise of this power, and to ensure that the power is not used in an objectionable, coercive, or unwarranted way.
The Congress’s power of delegated legislation is severely restricted in the United States because neither the method of “laying” nor the presence of a Joint Committee to scrutinize it is commonly used. This is due to the country’s legislative system, which considers it exclusively the obligation of courts to review the legitimacy of governmental rule-making. Because of Legislative authority, Parliament has comprehensive and efficient power over regulatory rule-making in England. Since, underneath the terms of the Statutory Instruments Act, 1946, all bureaucratic law is subject to Parliament’s oversight by the Select Committee on Statutory Instruments, the legislative control process uses “laying” strategies. Parliamentary control in England is more efficient when it is performed in a quasi climate without the use of the three-line whip. In India, a comprehensive system of parliamentary scrutiny of delegated legislation has been developed. This process has two main forms:
(I) Submitting delegated legislation to the parliament (i.e. Explicit Control or Direct Control);
(a) Memorandum on Delegation: The stage of delegation by Parliament is the first step in the chain of Parliament’s power over delegated legislation at the national level. A bill containing a request for delegation of legislative authority must be “interrupted by a memo describing those measures and making reference to their purpose, and specifying also if they are of extraordinary or usual nature,” according to a rule of practice in each House of Parliament. The law is helpful since the very first level of oversight happens during the delegate stage. The object of the memo is to draw the Member of Parliament’s attention to the provisions of the bill that deal with the delegation of legislative authority. Bills providing provisions for allocation of statutory authority can also be referred to the committee, which would investigate the nature of the powers sought to be delegated.
(b) Laying Procedure: After the rules are written, the second component in the parliamentary control chain is engaged. This is done by the ‘laying process’ method. This procedure’s primary objective is to provide details. There are three types of laying procedures which are as follows:
- Simple Laying: The practice of the legislature saying on the Table’ is practiced in nearly all Commonwealth countries. It has two main functions: first, it tells the parliament of all of the laws that the executive authorities have made in the exercise of delegated legislation. Second, it offers lawmakers an opportunity to challenge the laws that have been created or are being discussed.
- Laying with immediate effect but subject to annulment: The laws are drafted here and can be reversed by a House vote. Negative laying is the expression for all this. The validity of subordinate laws comes before, not after, the negative laying process in this method. The legislative role of this process is ex post facto; it is negative rather than positive, and it allows for disallowance rather than allowance.
- Laying in draft subject to affirmative resolution: The laws are drafted and put in front of the houses. When the houses pass a vote confirming the laws, they go into effect. Ordinarily, an act of parliament would mandate that all laws or legislation passed as a result of the act be laid before all houses of Parliament. Parliament should keep a keen eye on them and suggest outlets for critique. Any law or legislation submitted to Parliament may be questioned on any grounds. The aim of the mechanism is to hold them under broad political influence, so that policy opposition is regularly directed at them in Parliament. For a long time, there was a lot of misunderstanding in India about laying. Many legislation omitted such a clause, and the remainder of them involved laying simpliciter after the laws were enforced. However, nearly every central law now uses a standard laying formula.
(II) A parliamentary scrutiny committee scrutinizing delegated legislation (i.e. Implicit Control of Indirect Control).
The laying process would not provide for much in the way of successful legislative scrutiny. All hinges on the diligence of a particular parliamentarian in the latest negative resolution. ‘It rests, then, in the domain of procedural fantasy to say that Parliament exercises some genuinely meaningful protection over delegated legislation,’ as Allen so aptly put it. Although said in the framework of England, it is equally relevant to India. Two subordinate legislation committees, one from each House of Parliament, have been formed to enhance legislative scrutiny of delegated legislation.
Delegated law is scrutinized by Standing Committees of Parliament in India and the United Kingdom (UK). In the United States of America (USA), on the other hand, such commissions do not exist, and the liability is divided. The Lok Sabha’s Committee on Subordinate Legislation was formed on December 1, 1953. The Committee’s key tasks are to investigate :
(i) If the regulations are compatible with the Act’s general intent,
(ii) if the rules include any subject that may be better dealt with from the Act,
(iii) if the rules are retrospective,
(iv) whether the rules explicitly or implicitly restrict the court’s authority and related issues.
Between 1953 and 1961, the Committee reviewed approximately 5300 orders and regulations and issued 19 papers. Parliamentary Oversight of Delegated Laws in India has gotten a lot better since the Rajya Sabha Committee was formed since the two committees will review a lot more regulations each year than one committee might.
2) Executive – The laws enacted by the Legislature are implemented by the Executive.
- The Executive is the administrative head of the Government.
- Ministers including the Prime Minister, Chief Ministers, President, and Governors form part of the Executive.
- This body primarily enforces the laws and ensures proper administration in the country. It includes the Central Government and the State Governments formed through winning the general elections of Lok Sabha and the Legislative Assembly.
3) Judiciary – Despite the presence of legislative power, judicial control of subordinate law is viewed as a necessary form of regulation. The constitutional duty of the judiciary to follow the concept of the rule of law is the basic reason for judicial power. The judiciary’s role in a constitutionally controlled state is to ensure that the statutes passed by Parliament do not breach the Constitution and that the delegated legislation adopted under the statute is compliant with both parent law and the constitution.
Since the courts have the authority to strike down a rule where it is in breach of the parent legislation of the Constitution, the judicial method of regulation is claimed to be more efficient. The judiciary is also in charge of applying the procedural system of regulation, which uses procedural ultra vires to determine the legitimacy of the subordinate lawmaking process. In the case of Ram Krishna Dalmia v Justice S.R.Tendulkar the constitution bench of Five Judges analyzed the scope of judicial review in India and laid down the following important points :
4) Parent Act is Ultra Vires the Constitution: If the parent statute or enabling Act is in violation of the Constitution, the various laws and regulations enacted under that law may then be found unconstitutional if they are in breach of the constitution’s explicit or implicit limitations. The express limitations set out in the constitution are those clauses that expressly restrict the functions of state institutions, such as no abuse of the constitutional rights outlined in Part III of the constitution, rigid compliance to the statutory power allocation outlined in Lists I, II, and III of the Seventh Schedule, no infringement of Article 301 of the Constitution’s commerce clause, no retroactive consequence of criminal law as given by Article 20, and so on. In the cases of In Re: Delhi Laws Act and Harishankar Bagla v State of M.P, the implicit limits in the form of delegated legislation were established, where it was accepted that the legislature should delegate the power of rulemaking to a subordinate body after laying down the legislative policy and general rules of behavior.
Subordinate law does not have the same level of immunity as legislation enacted by a State. It may be challenged on the grounds that it violates the law by which it was created. It may also be challenged on the grounds that it contradicts a clause of the act or is in conflict with another law that applies to the very same issue.
Hierarchy of courts
The hierarchy of courts and their authority should be well established in order to deal with disputes that occur every day in a large country like India. The Supreme Court of India deals with cases at the national level, the High Court deals with cases at the State level, and the Subordinate Courts (Civil and Criminal) deal with cases at District and Subordinate level. There are different types of courts in India, each of which has different powers based on the level of authority imposed on it. They operate in accordance with the established hierarchy of the courts.
In our nation, the Constitution lays down the cornerstone of an integrated judiciary with the Supreme Court as the highest court of appeal. Article 124(1) of the Indian Constitution provides that the Supreme Court of India shall constitute a Chief Justice of India. The immediate lower court than the SC is the High Courts. Article 214 of the Constitution provides that a High Court shall be established for each Province. The HC shall be composed of one Chief Justice and other Judges. The President appoints the Chief Justice of the High Court in consultation with the Chief Justice of India, while the other judges have been nominated by the President in consultation with the Governor of the State, the Chief Justice of the High Court, and the CJI. Below the HC is the district-level civil courts and session courts.
Broadly speaking about the Courts in India:
1) Supreme Court: The Supreme Court of India, is the most superior court and the last appellate court in India with the Chief Justice of India as its top authority. Article 124(1) of the Indian Constitution states that there shall be a Supreme Court of India constituting a Chief Justice of India. The Parliament may, by law, increase or decrease the number of judges of the Supreme Court whenever it is required. At present, the Supreme Court has 31 judges including the Chief Justice of India. The Supreme Court of India is the highest court of appeal and has various powers, it exercises original, appellate and advisory jurisdiction. The Supreme Court is the court of record as its judgments are of evidentiary value and cannot be questioned in any court.
2) High Courts: Article 214 Part IV Chapter V of the Indian Constitution, institutes the High Courts. High Courts have jurisdiction over the respective States in which they are located. There are at present, 23 High Courts in India. Principally, High Courts can exercise only writ and appellate jurisdiction, but a few High Courts have original jurisdiction and can try suits. The decisions of High Courts are binding on all the lower courts of the State, over which it has the jurisdiction.
High Courts are restricted to the jurisdiction of a state or Union Territory. They are empowered to govern the jurisdiction of lower courts like family, civil and criminal courts with other different courts of the districts. These courts are of the statute of principal civil courts as far as the originality of jurisdiction is concerned in the related domain of the states and the other district courts.
3) District Courts: The District Courts are the local courts of the State governments for every district or for one or more districts together depending upon the number of cases and population distribution in the district. These Courts administer justice in the country at a district level. The highest court in each district is of the District and Sessions Judge. District and Sessions Judge is the principal court of original civil jurisdiction apart from the High Court of the State. The district court is also a court of Sessions when it exercises its jurisdiction on criminal matters under the CrPC. The district court is presided over by one District Judge appointed by the state Governor on the advice of the Chief Justice of that state.
4) Lower Courts: A lower court is a court from which an appeal is taken. With respect to an appeal from one court to another, the lower court is the court whose decision can be reviewed, it can be the original trial court or appellate court lower in rank than the superior court which is hearing the appeal. A lower court is always the trial court; where an appellate court is describing the actions under review from the lower court, it is relating to the court that examined the evidence and testimony directly and made rulings upon it, rather than any intermediate appellate courts.
5) Tribunals: The Tribunal is a quasi-judicial institution that is set up to deal with problems of administrative or tax-related disputes in nature. It performs various functions like adjudication of disputes, determination of rights between contesting parties, taking an administrative decision, review of an existing administrative decision, etc. Tribunals are not exactly courts because Courts are governed by procedure prescribed in the Criminal Procedure Code, Indian Penal Code, and the Indian Evidence Act whereas the tribunals are driven by the principles of natural justice. There are various Tribunals in India, such as:
- Central Administrative Tribunal.
- Income Tax Appellate Tribunal.
- Customs, Excise and Service Tax Appellate Tribunal.
- National Green Tribunal.
- Competition Appellate Tribunal etc.
Alternate Dispute Resolution (ADR) in India
In a developing world like India, which is undergoing significant economic changes within the context of the rule of law, strategies for speedier dispute resolution to reduce the pressure on the courts and to provide means for expeditious dispute resolution, there is no better choice than to seek to improve alternative dispute resolution (ADRs) through the establishment of facilities for providing arbitration, conciliation, mediation, and negotiation. The ADR methodology is an attempt to design a viable and equitable solution to our conventional justice system. It’s a fast-track justice-giving scheme. The Arbitration and Conciliation Act, 1996 was enacted in line with the UNCITRAL model to grant legislative backing to Arbitration and Conciliation as a form of ADR in India.
Effective control over the misuse of subordinate legislative rights must come from the parliament itself, first and foremost at the point of assignment of powers and, consequently, in the oversight of how they are implemented. The importance of democratic participation in the rule-making process is also important. In a democratic republic, the government must adapt to the wishes and opinions of those who would be affected by its laws.
There is no better way to determine if a program is effective than to see whether it is responsive to the real interests of the people, earning their sympathy, goodwill, and happiness. Finally, we must formulate mechanisms for making the quickly expanding subordinate laws readily available and understandable to those affected. To achieve an effective system of delegated laws in India, all of these things must be accomplished.
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