CONTROLS-OF -DELEGATED- LEGISLATION.pptx

How much power delegated legislation have and their limits

1. CONTROLS OF DELEGATED LEGISLATION Delegated legislation is allowing bodies below the parliament to pass their own legislation . It is often described as that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.  This dependence can often take the form of checks and controls, namely, parliamentary or legislative control; procedural control and judicial control.  There are a numerous critical reasons why it is necessary to have control over delegated legislation . Taking into account that delegated legislation is made by elected representatives, individuals have the aptitude to pass delegated legislation. Without control, there would be many absurd laws  . Delegated legislation is often criticized as an excuse for the legislators, a shield for the administrators and a provocation for the Constitutional jurists . However, the very mechanism of delegated legislation cannot and should not be reduced to an evil because it is at the end of the day a necessity.

2. REASONS FOR CONTROL In the modern world where social, economic, technological, and administrative speed outstrips the placid traditional legislative processes, delegated legislation is an essential means of survival.  Thus, since it is the legislature which delegates power, it is primarily for it to supervise and control the exercise of this power, and ensure against its objectionable, abusive & unwarranted use. Sub-delegation is a problem with delegated legislation, as the creation of the legislation is delegated further, such as by a government minister, who was originally given the power to make delegated legislation by the enabling act, to civil servants within the department. This means power is taken even further from those elected and continues to make delegated legislation appear undemocratic and in need of strict controls.

3. Another point to consider is that delegated legislation is generally made privately, rather than being debated as parliamentary legislation is, and thus, although the enabling act may require some public consultation, delegated legislation could be seen as much less open and publicised than statutes . Also, although delegated legislation is published, the vast quantities produced and complex wording mean delegated legislation is criticised for being difficult for people to fully understand, and therefore may not be very open to public scrutiny or involvement in its creation . The main reason that controls over delegated legislation are necessary is because it is not created by Parliament, and often not even those given the responsibility by Parliament, but is further sub-delegated. This means that the public are not able to elect those making legislation, as they are with Parliament, and thus those making delegated legislation are not accountable to the people, so delegated legislation can seem undemocratic and a particular problem if it is used for more important policies, and not simply administrative rules.

4. TYPES OF CONTROL There are three types of control on the Delegated Legislation- (A) Parliamentary Control – Antecedent Publicity, Publication and Consultation of Interests (B) Legislative Control – Proceedings in Parliament, Laying on the Table and Scrutiny Committee (C) Judicial Control – Doctrine of Ultra Vires, Judicial Review

5. PARLIAMENTARY CONTROL The underlying object of this control is to keep a watch over the rule-making authorities and to provide an opportunity to criticize them if there is an abuse of power on their part. This can be done by the said 3 methods namely :- Antecedent Publicity- The primary safeguard to ensure the proper exercise of powers of delegated legislation lies in the development of adequate procedures to be followed by the administrative process in the formulation of rules and regulations. It is a means of obtaining participation in the rule making process. In India there is no separate law relating to antecedent publicity .However , in America it is used widely. It is provided in American Administrative Procedure Act, 1946. Similarly it also provided for in Britain in Section 1 of the Rules of Publication Act, 1893. Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In India, the question of control on rule-making power engaged the attention of the Parliament.

6. Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliamentary control over delegated legislation should be a living continuity as a constitutional remedy . The fact is that due to the broad delegation of legislative powers and the generalised standard of control also being broad, judicial control has shrunk, raising the desirability and the necessity of parliamentary control . In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to delegate its legislative power to the executive because of some reasons, it is not only the right of the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive carries out the agency entrusted to it . Since it is the legislature which grants legislative power to the administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure the danger of its objectionable, abusive and unwarranted use by the administration.

7. In India parliamentary control of administrative rule-making is implicit as a normal constitutional function because the executive is responsible to the Parliament . There are three types of control exercised : Direct but general control over delegated legislation is exercised- Through the debate on the act which contains delegation . Members may discuss anything about delegation including necessity, extent, type of delegation and the authority to whom power is delegated . Through questions and notices . Any member can ask questions on any aspect of delegation of legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules . Through moving resolutions and notices in the house . Any member may move a resolution on motion, if the matter regarding delegation of power is urgent and immediate, and reply of the government is unsatisfactory. Through Publications – Ignorance of law is no excuse and it is a fundamental and equally established principle of law that the public must have an access to the law. As Domatt says : Law should be laid open . Eg : Official Gazette

8. (vii) Rules should not travel beyond the rule-making power conferred by the parent Act. (viii) There should not be inordinate delay in making of rules by the administration. (ix) The final authority of interpretation of rules should not be with the administration. (x) Sufficient publicity must be given to the statutory rules and orders . The working of the Committee is on the whole satisfactory and it has proved to be a fairly effective body in properly examining and effectively improving upon delegated legislation in India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body .” Therefore , legislature exercises its control over the delegated legislation or the rule-making power by these two methods: namely, ‘laying’ procedure and via Scrutiny committees.

9. REASONS FOR FAILURE OF PARLIAMENTARY CONTROL (i) The Parliament has neither time nor expertise to control the administration which has grown in volume as well as complexity. (ii) The legislative leadership lies with the executive and it plays a significant role in formulating policies. (iii) The very size of the Parliament is too large and unmanageable to be effective. (iv) The majority support enjoyed by the executive in the Parliament reduces the possibility of effective criticism. (v) The growth of delegated legislation reduced the role of Parliament in making detailed laws and increased the powers of bureaucracy. (vi) Parliament’s control is sporadic, general and mostly political in nature.

10. (vii) Lack of strong and steady opposition in the Parliament have also contributed to the ineffectiveness of legislative control over administration in India. (viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a whole; and the quantity and complexity are such that it is no longer possible to rely on such scrutiny.  I n India parliamentary control over delegated legislation is to be made a living continuity, it is necessary that the role of the committees of the Parliament must be strengthened and a separate law like the Statutory Instruments Act, providing for uniform rules of laying and publication, must be passed. The committee may be supplemented by a specialised official body to make the vigilance of delegated legislation more effective. Besides this other measures should be taken to strengthen the control of Parliament over delegated legislation.

11. JUDICIAL CONTROL – Doctrine of Ultra Vires The Indian Constitution has established a Welfare State which mandates that the State shall legislate on innumerable activities touching human lives in order to promote the ‘maximum happiness of the maximum number of people ’. Consequently the State has to undertake legislation on a variety of subjects. In view of this increasing legislative activity, the legislatures will not find adequate time to legislate on every minute details and limit themselves to ‘policy matters and leaving a large volume of area to executives to frame rules to carry out the purposes of legislation. Thus , the need for delegation became indispensable and it was sought to be justified on grounds of ‘ speed’, flexibility and adoptability ’. The application of law to changing circumstances was made feasible through the instruments of ‘rules’ framed by the executive.

12. Judicial control of delegated legislation is a critical aspect of maintaining the rule of law. It ensures that the powers conferred upon administrative authorities are exercised within the bounds of the enabling Act and the Constitution. This control is exercised through judicial review, which can strike down any rule that is ultra vires the enabling Act or the Constitution. In India, judicial review of delegated legislation is subject to the normal rules governing the review of administrative action, with certain exceptions. Unlike administrative actions, subordinate legislation cannot be challenged on the ground of violation of the principles of natural justice . However, this gap is filled when such legislation is challenged on the grounds of unreasonableness and arbitrariness under Articles 14 and 19 of the Constitution.

13. Grounds for Judicial Review Judicial review of delegated legislation can be invoked on several grounds, including: Ultra Vires the Constitution: The enabling Act itself may be ultra vires the Constitution if it violates either the implied or express limits of the Constitution . Case : Re Delhi's case . Additionally, the enabling Act must not violate the scheme of distribution of power given in the Constitution or the provisions of Part III, which encompasses fundamental rights. Ultra Vires the Enabling Act : Even if the enabling Act is intra vires, the constitutionality of the delegated legislation can still be challenged. In Narendra Kumar v Union of India (AIR 1960 SC 430) , the court held that the law cannot be presumed to authorize anything unconstitutional.

14. Substantive Ultra Vires : This occurs when delegated legislation exceeds the scope of authority conferred by the enabling Act or conflicts with the delegating statute. The efficiency of judicial review in such cases depends on the terms in which power is conferred on the executive and the width of substantive statutory provisions. For example, in Dwarka Nath v Municipal Corp. (AIR 1971 SC 1844) , the Supreme Court held Rule 32 under the Prevention of Food Adulteration Act, 1954, as ultra vires because it exceeded the power conferred by the Act. Procedural Ultra Vires: In the making of delegated legislation the authority may be required by statute to follow certain procedures like pre-publication, consultation, publication, laying , etc. Rules become invalid on the ground of noncompliance with the prescribed procedure only if such procedure is mandatory. In Raza Buland Sugar Co. case , the Supreme Court spelt out the judicial technique for determining whether a provision was mandatory or directory. The question whether a particular provision of a statute is mandatory or directory depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor.

15. Test to determine the question of Procedural Ultra Vires Unreasonableness, Arbitrariness, and Discrimination: Delegated legislation can be challenged if it is unreasonable, arbitrary, or discriminatory, thus violating Articles 14 and 19 of the Constitution. For instance, in Air India v Nargesh Meerza (AIR 1981 SC 1829) , the court quashed a service regulation that terminated the services of an air hostess on the first pregnancy, deeming it violative of Article 14. Mala Fide: Administrative rule-making can be challenged on the ground of bad faith or ulterior purpose. For example, the Bombay High Court invalidated a rule under the Drug and Cosmetics Act, 1940, which required manufacturers of eau de cologne to add a poisonous substance to render the product non-potable, as it was deemed an attempt to enforce prohibition policy under the guise of prescribing standards.

16. Case Laws on Judicial Control Dwarka Prasad v State of U.P. (AIR 1954 SC 224): The court held a rule under the U.P. Coal Control Order as ultra vires Article 19(1)(g) because it placed unreasonable restrictions by giving arbitrary powers to the executive in granting exemptions. The rule allowed the State coal controller to exempt any person from the license requirements, which the court found to be an excessive delegation of power and an unreasonable restriction on the right to carry on any occupation, trade, or business. Ibrahim v Regional Transport Authority (AIR 1953 SC 79):  The court declared rules for fixing bus stand sites as invalid, being in excess of the power conferred by the enabling Act. The enabling Act authorized the agency to make rules for the "control of transport vehicles," but the court found that the rules for fixing bus stand sites went beyond this authorization. State of Karnataka v Ganesh Kamath (AIR 1983 SC 550): The court struck down Rule 5(2) as being inconsistent with the enabling Act. This rule provided that even though a person has passed the test for driving heavy motor vehicles, he cannot obtain a license unless he had already possessed a license for and had two years' experience driving a medium motor vehicle.

17. Case Laws on Judicial Control (Continued) Air India v Nargesh Meerza (AIR 1981 SC 1829): The court quashed a service regulation that was discriminatory and violative of Article 14. The regulation provided for the termination of services of an air hostess on the first pregnancy, which the court found to be an unreasonable and arbitrary restriction on the employment of women. W.B. State Electricity Board v Desk Bandhu Ghosh (AIR 1985 SC 722) : The Supreme Court quashed a regulation that allowed arbitrary termination of services, deeming it unreasonable. Regulation 34 of the W.B.E.B’s Regulations provided that the services of a permanent employee could be terminated by serving three months' notice or on payment of three months' salary in lieu of the notice. The court found this regulation to be arbitrary and an unreasonable exercise of power.

18. LEGISLATIVE CONTROL Executive legislating under delegated legislation is ordinarily free from rigid procedural requirements unless the legislature makes it mandatory for the executive to abide by a certain procedure.  This is because rigid procedural requirements may turn out to too time consuming and cumbersome and they may defeat the very purpose of delegated legislation.    However, communication in one form or other to the general public still remains indispensable for the law to be legally valid and binding.  Hence procedural control means certain procedures which are laid down in the parent Act which have to be followed by the authorities while making the rules.  Delegated legislation may be challenged on the ground that it has been in accordance with the procedure prescribed by the enabling Act.  However, rules become invalid on the ground of non-compliance with prescribed procedure only if such procedure is mandatory.  

19. Non compliance with the directory provisions does not render them invalid.  It becomes a case of procedural alternatives.   One has to see whether the procedure is mandatory or directory. Procedural control  mechanism operates in three components: (i) Pre-publication and consultation with an expert body  or approval of an authority. (ii) Publication of delegated legislation. (iii) Laying of the rules before the legislature.

20. This procedural control mechanism may be either mandatory or directory. For the purpose of mandatory or directory control mechanisms few important parameters should be taken into account as laid down in the case of Raza Buland Sugar Co. v. Rampur Municipal Council (AIR 1965 SC 895)- Scheme of Act Intention of legislature i.e. whether treated mandatory or directory language in which the provision is drafted Serious inconvenience being caused to the public at large, these were four parameters laid down in case.  

21. Consultation and Pre-publication- The “modus-operandi” is  regarded as a valuable safeguard against the misuse of legislative power by the executive authorities.   The effect of the term previous publication according to S.23 of General Clause Act, 1897is that: (i) The rules should be published in draft form in Gazette. (ii) Objections and suggestions be invited by a specific date mentioned there in, and (iii) Those objection and suggestions be considered by rule-making authority. In India, a provision of prior consultation, if contained in the enabling Act is considered sometimes as mandatory and sometime as directory.  In issue like environment, this requirement is considered as mandatory in nature.

22. The provisions for prior consultation may take various forms : (a) Official consultation: The central govt.  is required to make rules U/s 52 of the Banking Companies Act, after consulting the Reserve Bank  of India . (b) Consolation with statutory bodies : Incharge of a particular subject . (c) Consultation with Administrative boards . (d) Consultation with affected persons :  Municipalities, before tax imposition have to publish draft rules in a Hindi daily and consult the inhabitants of the area.  Under the industries development and regulations act, representations from the industry and public are invited. (e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers owner of a time to frame or to draft rules themselves for safety etc. n mines and submit them to inspector of mines.  Such rule become operative on being approved by the government.

23. ( 2) Publication- It is a fundamental principal of law “ ignorantia jris non excusat ” (ignorance of law is no excuse) but there is also another equally established principle of law that the public must have the access to the law and they should be given an opportunity to know the law.  All laws ought either to be known or at least laid open offend against them under pretence of ignorance.  It is essential that adequate means are adopted to publicize the rules so that people are not caught on the wrong foot, in ignorance of the rules applicable to them in a given situation .” Thus, in Harla v. State of Rajasthan ( AIR 1951 SC 467) the council by resolution enacted the Jaipur opium Act which made rule that if a person carried opinion beyond  a certain limit then it was an offence committed and penalty had to be imposed on the accused & act was never published.  One Harla was prosecuted for the contravention of this law because he was in possession of opium in more quantity than permitted.  

24. He contended that it was a case of procedural ultravires .  Holding that the law was not enforceable the Supreme Court observed. “promulgation or publication of some sort is essential other wise it would be against principles of natural justice to punish the subject under a law of which they had no knowledge and of which they could not even with the exercise of reasonable diligence be said to have acquired any knowledge .” In Narendra Kumar v.s U.O.I. (AIR 1960 SC 430) Sec.3  of Essential commodities Act, 1955 required all the rules to be made under the Act to be notified in official gazette.  The principles applied by licensing authority for issuing permits for the acquisition of non-ferrous metals were not notified.   The S.C. held the rules ineffective because the mode of publication i.e. in Official Gazette was held to be mandatory.

25. Laying on Table In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question or challenge the rules made or proposed to be made. In India, there is no statutory provision requiring ‘laying of’ of all delegated legislation. In the absence of any general law in India regulating laying procedure, the Scrutiny Committee made the following suggestions: (i) All Acts of Parliament should uniformly require that rules be laid on the table of the House ‘as soon as possible’. (ii) The laying period should uniformly be thirty days from the date of final publication of rules; and (iii) The rule will be subject to such modifications as the House may like to make.

26. Scrutiny Committees Indirect control is exercised by Parliament through its Committees. With a view to strengthen Parliamentary control over delegated legislation, Scrutiny Committees were established. In UK and India, there are Standing Committees of Parliament to scrutinise delegated legislation. In the USA, on the other hand, there is no equivalent to such committees, the responsibility being diffused. The responsibility is shared but a host of committees – standing committees in each House of Congress, committees on government operation in each house, and some other joint bodies like the committee on atomic energy. In England, the Select Committee on Statutory Instruments was established by the House of Commons in 1944. In 1950, the Law Minister made a suggestion for the establishment of a Committee of the House on the pattern of the Select Committee on Statutory Instruments, 1944, to examine delegated legislation and bring to the notice of the House whether administrative rule-making has exceeded the intention of the Parliament or has departed from it or has affected any fundamental principle.

27. Scrutiny Committees The Committee on Subordinate Legislation has made the following recommendation in order to streamline the process of delegated legislation in India. (i) Power of judicial review should not be taken away or curtailed by rules. (ii) A financial levy or tax should not be imposed by rules. (iii) Language of the rules should be simple and clear and not complicated or ambiguous. (iv) Legislative policy must be formulated by the legislature and laid down in the statute and power to supply details may be left to the executive, and can be worked out through the rules made by the administration. (v) Sub-delegation in very wide language is improper and some safeguards must be provided before a delegate is allowed to sub-delegate his authority to another functionary. (vi) Discriminatory rules should not be framed by the administration.

28. Cases Where Delegated Legislation Was Upheld L.M. Sundaram v Director of Legal Studies (AIR 1981 Mad. 198):  The rules of the Bar Council of India prescribing standards for legal education were upheld. The rules required that for admission to the Bar, a person should have obtained a law degree after undergoing a regular course of three years and should have attended at least 60% of the classes in each subject. The court found that the expression "to lay down standards of such education" in Section 7(1)(h) of the Advocates Act, 1961, was capable of encompassing every ingredient necessary to constitute the end or ultimate level of education expected of a candidate applying for enrollment as an advocate. Meenakshi Bhandari v Delhi University (AIR 1983 Del. 104): A rule prescribing percentage marks for admission to a law degree course was upheld. The court found that the Bar Council's power to lay down standards of legal education through rules included the authority to prescribe minimum qualifying marks for admission .

29. Cases Where Delegated Legislation Was Upheld Ajay Canu v Union of India (1988) 4 SCC 156 : A rule mandating the compulsory wearing of crash-helmets by drivers of two-wheelers was upheld. The court found that the rule was within the rule-making power delegated by the Motor Vehicles Act, which aimed to ensure the safety of drivers and the public .