This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur and here she is discussing delegated legislation and the controls related to it.
According to M.P. Jain, “ the term is used in two different senses:
- to exercise the legislative power by subordinate agents, or
- the subsidiary rules themselves which are made by the subordinate authority in pursuance of the powers conferred on it by the legislature”.
Delegated legislation is generally a type of law made by the executive authority as per the powers conferred to them by the primary authority in order to execute, implement and administer the requirements of the primary authority. It can be said that it is the law made by any person or authority under the power of parliament. It is also known as subordinate legislation in administrative law. It allows the bodies beneath the primary authority or legislature to make laws according to the requirement. Through an act of Parliament, Parliament has full authority to permit any person or authority to make legislation. An act of parliament creates a framework of a particular law which tends to be an outline of the purpose for which it is created. The important object of this is that any legislation by such delegation should be according to the purposes as laid down in the act.
The main feature is that it allows the state government to amend the laws if there is any need without delaying for the new act to be passed by the Parliament. If there is any requirement then sanctions can also be altered by the delegated legislation as the technology changes. It is believed that when such authority is delegated by the Parliament to any person or authority it enables such person or the authority to provide more detail to the act of the Parliament.
For example, the local authority has power conferred by the superior one to make or amend laws according to the requirement of their respective areas. The delegated legislation plays a very important role as the number of them are more than the acts of the Parliament. It has the same legal standing as the act of Parliament from which it is created.
There are three forms of delegated legislation i.e., statutory instrument, orders in council and by-laws.
They are the one which is formed by the government. For example – a parent act is an act which permits the parliament for making the law. Orders in the council are generally made by the government when there is a need and it can affect the public at large as well as an individual.
They are created by the local authority which is approved by the Central Government. There are many reasons for the delegation of the legislature. The parliament does not have that much time to deliberate and debate about every topic. Therefore, delegated legislation helps in making laws rapidly than the Parliament and the procedure of the Parliament is also very slow as the bills for every law needs to pass from every stage. Further, it is also believed that the Member of Parliament does not possess the technical ability which is required to make law.
For example – making any law regarding taxation requires knowledge as well as experience which can be done by the person who is professional in that field. In the case of welfare purpose, the local authority can understand the needs of the people in his area more effectively than others. The democratic bodies have many important powers for the delegated legislation which can be easily used for updating the legislation according to the requirement which leads to social welfare.
But there should be control over delegated legislation. Delegated legislation is controlled by the Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as it takes account with the statutory committees which make law through bills. The main object of parliamentary control is to look that there is no abuse or unnecessary use of the powers given to rulemaking authorities.
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in the Parliament.
There are a number of rules in the area of judicial control over the delegation of legislation which is laid down by the judiciary.
In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and should not suffer from any unreasonableness.
Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules framed which violates the Parent Act are illegal. Rules framed which violates any other statute should also be considered as void. Delegated legislation made with mala fide intention is also considered illegal.
To have a better understanding please go through the attached PowerPoint Presentation. It has a better version of explanation about the Control Mechanism of Delegated Legislation.
Factors responsible for the rapid growth of Delegated Legislation
- Pressure on Parliament – The number of activities in states is expanding which requires law and it is not possible for the Parliament to devote sufficient time to every matter. Therefore for this, the Parliament has made certain policies which allows the executives to make laws accordingly.
- Technicality – Sometimes there are certain subject matters which requires technicality for which there is a requirement of the experts who are professional in such fields and members of Parliament are not experts for such matters. Therefore, here such powers are given to experts to deal with such technical problems like gas, atomic, energy, drugs, etc.
- Flexibility – It is not possible for the Parliament to look after each contingency while passing an enactment and for this certain provisions are required to be added. But the process of amendment is very slow as well as the cumbersome process. Thus, the process of delegated legislation helps the executive authority to make laws according to the situation. In the case of bank rate, policy regulation, etc., they help a lot in forming the law.
- Emergency – At the time of emergency, it is not possible for the legislative to provide an urgent solution to meet the situation. In such case delegated legislation is the only remedy available. Therefore, in the times of war or other national emergencies, the executives are vested with more powers to deal with the situation.
- The complexity of modern administration – With the increasing complexity in modern administration and the functions of the state being expanded and rendered to economic and social spheres too, there is a need to shift to new reforms and providing more powers to different authorities on some specific and suitable occasions. In a country like Bangladesh, where control over private trade, business or property may be needed to be imposed, and for implementation of such a policy so that immediate actions can be taken, it is needed to provide the administration with enough power.
And so, therefore for immediate and suitable actions to be taken there has been an immense growth of delegated legislation in every country and being that important and useful it becomes a non-separable part in the modern administrative era.
Advantages of Delegated Legislation
- Save time for the legislature.
- Allow for flexibility.
- Expert opinion is required in legislation.
- Parliament is not always present in the session.
- Used as an experimental basis.
- It is restored to use it in a situation of emergency.
- Can be easily Settle down with consulting the required party of the case.
Criticism of Delegated Legislation
- It has a long duration of bearing for legislative control because the legislature is the supreme organ of the state as it consists of three main organs which are: Judiciary, Legislative and Executive.
- All of them have to work with or in relation to each other and it should be done in a balanced way on the basis of power given to each organ for working effectively. Instead of various advantages, delegated legislation has weakened the legislative control executive.
- The executive has become stronger with delegated legislation, it can easily encroach the rules and regulation of legislation by making rules.
- This concept opposes the rule of Separation of Power.
- Lack of relevant discussion before framing the law.
- It is not in acceptance with the principle of rule of law.
- It is not stable in nature, it keeps on fluctuating on the ground of Political changes.
Classification of Delegated Legislation
Power to bring Act into Action As it is already given that in a specified date this Act will come into force prescribed by Central or State Government by giving a notice in the Official Gazette.
In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the Act into force and it should not be excessive in delegated power of legislation. So, here the court rejected the contention that the power was excessive in nature as per prescribed. It was practically difficult for enforcement. Therefore, power is given to the executive authority to decide the date of enforcing the act.
Conditional Legislation the rules are framed or designed by the legislature but to implement or enforce it, is done by the executive organ, so executive has to look that what all conditions need to be fulfilled to bring it in operation. If all conditions are satisfied then it is well and good otherwise notice will be issued to bring the law into operation and it is known as Conditional Legislation.
Condition legislation is of following types
- Power to bring the act into action.
- Power to extend the time period or life of the act.
- Power to extend the application of the act to any territory and to make restriction or make an alteration in the act itself.
- Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the legislature and pass on to the executive to fill up with all the necessary blanks or elements needed by the subordinate legislation.
Power face in removing difficulties – Power to modify the statute maybe given to the government by removal of difficulties clause.
Control of Delegated Legislation
There are three kinds of Control given under Delegated Legislation:
- Parliamentary or Legislative Control
- Judicial Control
- Executive or Administrative Control
Parliamentary or Legislative Control
Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the right but the duty of the legislature to look upon its agent, how they are working.
It is a fact that due to a delegation of power and general standards of control, the judicial control has diminished and shrunk its area.
In India “Parliamentary control” is an inherent constitutional function because the executive is responsible to the legislature at two stages of control.
- Initial stage
- Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for completing the particular task, and it also observed that delegation of power is valid or not.
Now, the second stage consists of two different parts.
- Direct control
- Indirect control
Laying is an important and essential aspect under direct control and it is laid down as per the requirement which means that after making the rule it should be placed before the Parliament. It includes three important part as per the degree of control needs to be exercised.
- Simple Laying
- Negative Laying
- Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact then in such a case laying need is mandatory.
Where the provision is mentioned that the rules should be drafted in a particular format then it becomes mandatory to follow the format.
Test of Directory – Where the laying need is next to enforce the rule into operation then it will be directory in nature.
This is a control exercised by Parliament and its committees. Another name for such type of committee is Subordinate legislation. The main work of the committee is to examine
- Whether rule are according to general object of the act.
- It bars the jurisdiction of the court in direct or indirect ways.
- Whether it has retrospective effect or not.
- Whether it safeguard or destroy the Principle of Natural Justice.
- Expenditure involved in it is from Consolidated fund.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for the executive to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective of the act. Hence, procedural control means that under Parent act certain guidelines are given which need to be followed while whether it is mandatory or directory to follow it or not. It includes three components:
- Pre publication and consultation with an expert authority,
- Publication of delegated legislation.
- Laying of rules.
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.
Judicial review upgraded the rule of law. The court has to see that the power delegated is within the ambit of the constitution as prescribed. Judicial review is more effective because court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate that State should not make any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:
- It is ultra vires to the Constitution of India, and
- It is ultra vires to the enabling Act.
If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that the committee of parliament need to be strong enough and separate laws should be made and passed which give a uniform rule for laying down and publication purposes. A committee must contain a special body to look on the delegated work whether it’s going in the right direction and effectively or not. All the three organs should focus on their work and do not interrupt unnecessarily to prevent chaos in the system.