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. It is not a surprise to find that during the years (1973-77) spanning a period of 4 years Parliament enacted 300 statutes but the rules framed by the executive exceeded 25000. This has been observed by the apex court in the Arvind Singh’s case.
Legislatures having delegated their powers, have to bear the responsibility to ensure that the delegatee shall not over-step the legitimate domain and commit a violation by exceeding or abusing the powers delegated.
Thus, the legislatures have to control the delegated legislation and if not, executives may exercise the delegated power to become a potential dictator or even becoming a parallel legislature. This legislative control over delegated legislation has become a ‘living continuity as a constitutional necessity’.
The rule of majority in democratic systems have virtually made legislative controls ineffective. A similar statement is found in Wade & Forsyth.
A more serious observation has been made by Mr. Lloyd George to the effect that ‘legislatures have no control over the executive”.
All these observations are pointers to the view that had the Parliamentary control over delegated legislature been effective, the need for judicial control would not have arisen or probably reduced to the minimum. This has not been so, hence, judicial control has become an inevitable necessity to prevent executives acting as super-legislatures or potential dictators.
Pre-constitutional control to post-constitutional judicial control found a big shift from the scrutiny of delegated legislation confined to the area of sub-delegation from British Parliament to Indian legislature and laying down a fundamental principle of delegation in the post-constitutional era which can be stated as follows:-
“Legislatures cannot delegate their essential legislative powers. Essential legislative powers relate to the determination of the policy of the legislature and of rendering that policy into a binding rule of conduct”.
In other words, delegation of legislative power can be confined to ‘non-essentials’ or subsidiary matters. Delegation of legislative powers of essential nature would be invalid. This has come as a first principle laid down in the area of judicial control and subsequently expanded to a number of rules laid down by the judiciary. These principles can be stated as follows:-
If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which is constitutional. In other words, an unconstitutional legislation cannot be legalized by a valid Parent Act;
Rules farmed violating Parent Act are illegal;
Rules framed violating any other Statute or inconsistent with any other law are also illegal and void;
Delegated legislation must be reasonable or do not suffer from unreasonableness. This has been ruled in Chandra Bhan’s case;
Delegated legislation shall not be arbitrary or suffer from arbitrariness. This is necessary to protect the “Rule of Law”;
Delegated legislation made with malfides or improper Motives are held illegal;
Forbidding sub-delegation and the powers being delegated 18 or delegatee exceeding the powers19 are equally held void;
‘Finality clauses’ in Statutes or rules made thereunder, exclusive evidence, clauses20 or ‘as if enacted clauses’21 were also reviewed on the basis of their compliance with the Justice/”>Principles Of Natural Justice and also in the Light of Art 226 and Art 32 of the constitution vesting powers in the High Courts and Supreme Court respectively. Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;
‘Retrospective effect’ clauses giving effect to the law or rules with retrospective effect. Such clauses not only reverses the reasonable anticipation of the people and may also deprive people of their accrued rights;
Delegated legislation exercised being against public standards or public morality. (In this case marks sheets of the daughter of CM were altered);
Doctrines like ‘Proportionality’, legitimate expectations, and public accountability, have become grounds of Judicial Review of the law and rules framed; and
Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not following the procedures which are mandatory in framing the rules;
Judicial control over the delegated legislation
Since ‘Judicial review’ forms an important feature of the basic structure of the Constitution, it cannot be taken away even by an amendment to the Constitution.
This has now raised a few problems relating to judicial control over delegated legislation, such as:
How to make the Judiciary responsible for exceeding its legitimate limits?
How to ensure that judiciary acts only in cases where the delegated legislation assumes the character of its being a super-legislatures or parallel legislature?
How to ensure that Judicial Control to preserve the ‘rule of law’ and
How to ensure proper exercise of power by Judiciary.
In the fitness of things, it would be proper to suggest that the rules laid down by the Judiciary may be codified, so as to confine its powers to the norms already laid down. It is also necessary that The Supreme Court must frame rules under Art 141, which would be law binding under Art 144 limiting its powers judiciously and not to overstep its legitimate sphere.
In other words, self –imposed rules by the supreme court may be a good solution to the problems of Judicial control being made accountable, legitimate and confined to constitutional limits to protect and preserve the Constitution and ‘rule of law’. It would be worthwhile to remember the famous observation of Justice Frankfurter which is in these words: “Judicial review is not immune against human weakness. It also must be on guard against encroaching beyond its bounds, and not the less so, since only restraint upon it is self-restraint”.
It is hoped that the apex court will frame rules relating to its power of review in the sphere of delegated legislation, so that it could serve as guidelines to all High Courts and also to the Govt., to keep in mind while framing rules as well to the legislatures, while enacting laws.
It will go a long way in preserving the constitutional powers and the rule of law in a democratic Society like ours.
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Delegated legislation is a type of law that is made by a government agency or other body, rather than by a legislature. It is often used to fill in the details of laws that have been passed by the legislature, or to make changes to those laws. Delegated legislation can be very important, as it can have a significant impact on people’s lives.
There are many different types of delegated legislation, but some of the most common include:
Statutory instruments
Orders in council
Bylaws
Rules
Regulations
Statutory instruments are the most common type of delegated legislation. They are made by government ministers, and they have the same legal effect as laws that have been passed by the legislature. Orders in council are made by the Queen on the advice of the Privy Council. They are used to make changes to laws that have been passed by the legislature, or to create new laws. Bylaws are made by local authorities, and they have effect only within the area of the local authority. Rules are made by government departments, and they are used to regulate specific activities. Regulations are made by government departments, and they are used to implement laws that have been passed by the legislature.
The legislature has a number of ways of controlling delegated legislation. One way is to pass a law that sets out the procedures that must be followed when making delegated legislation. Another way is to set up a committee to oversee the making of delegated legislation. The legislature can also reject delegated legislation, or it can amend it.
The judiciary also has a role to play in controlling delegated legislation. The courts can review delegated legislation to see if it is ultra vires, which means that it is beyond the powers of the body that made it. The courts can also review delegated legislation to see if it is unreasonable or unfair.
Delegated legislation is an important part of the legal system. It can be used to fill in the details of laws that have been passed by the legislature, or to make changes to those laws. Delegated legislation can have a significant impact on people’s lives, and it is important that it is controlled by the legislature and the judiciary.
One example of delegated legislation is the Health and Safety at Work Act 1974. This act sets out the general principles of health and safety at work, but it leaves it to the Health and Safety Executive (HSE) to make detailed regulations to implement those principles. The HSE has made a large number of regulations under the Health and Safety at Work Act, covering everything from the use of personal protective equipment to the safe handling of hazardous substances.
Another example of delegated legislation is the Town and Country Planning Act 1990. This act sets out the general principles of town and country planning, but it leaves it to local planning authorities to make detailed plans for their areas. Local planning authorities have made a large number of plans under the Town and Country Planning Act, covering everything from the location of new housing developments to the protection of green spaces.
Delegated legislation can be a useful tool for governments, as it allows them to make changes to the law quickly and easily. However, it is important that delegated legislation is controlled by the legislature and the judiciary, to ensure that it is not used to make arbitrary or unfair changes to the law.
What is delegated legislation?
Delegated legislation is law that is made by a government minister or other public body, rather than by an elected Parliament or Congress. It is also known as subordinate legislation, secondary legislation, or delegated law.
Why is delegated legislation used?
Delegated legislation is used because it allows governments to make laws more quickly and easily than if they had to go through the full legislative process. It can also be used to make laws that are more specific to particular areas or situations.
What are the advantages of delegated legislation?
The advantages of delegated legislation include:
It allows governments to make laws more quickly and easily than if they had to go through the full legislative process.
It can be used to make laws that are more specific to particular areas or situations.
It can be used to delegate law-making power to experts or other bodies that have specialist knowledge of a particular area.
What are the disadvantages of delegated legislation?
The disadvantages of delegated legislation include:
It can be used to make laws without proper scrutiny by Parliament or Congress.
It can be used to make laws that are not accountable to the public.
It can be used to make laws that are not transparent or accessible to the public.
How is delegated legislation controlled?
Delegated legislation is controlled by a number of mechanisms, including:
Parliamentary scrutiny: Parliament can scrutinize delegated legislation before it is made, and can also amend or repeal it after it has been made.
Judicial review: The courts can review delegated legislation to ensure that it is within the powers that have been delegated to the government or other public body.
Public consultation: The government or other public body must usually consult the public before making delegated legislation.
Publication: Delegated legislation must usually be published so that the public can be aware of it.
What are some examples of delegated legislation?
Some examples of delegated legislation include:
Statutory instruments: These are the most common form of delegated legislation in the United Kingdom. They are made by government ministers and have the same effect as Acts of Parliament.
Orders in council: These are made by the Queen on the advice of the Privy Council. They have the same effect as Acts of Parliament.
Regulations: These are made by government departments or other public bodies. They have the effect of law, but they are not as powerful as Acts of Parliament or statutory instruments.
Bylaws: These are made by local authorities. They have the effect of law within the area of the local authority.
What are some of the key issues surrounding delegated legislation?
Some of the key issues surrounding delegated legislation include:
The extent to which delegated legislation should be subject to parliamentary scrutiny.
The role of the courts in reviewing delegated legislation.
The need for public consultation before delegated legislation is made.
The need to publish delegated legislation so that the public can be aware of it.
Which of the following is not a type of delegated legislation? (A) Bylaws (B) Regulations (C) Orders in Council (D) Statutes
Which of the following is the most common type of delegated legislation? (A) Bylaws (B) Regulations (C) Orders in Council (D) Statutes
Delegated legislation is legislation that is made by a government body other than the legislature. (A) True (B) False
Delegated legislation is sometimes necessary because it is too difficult for the legislature to make all of the laws that are needed. (A) True (B) False
Delegated legislation can be made by a variety of government bodies, including the executive branch, the judicial branch, and independent agencies. (A) True (B) False
Delegated legislation is subject to judicial review, which means that the courts can review it to make sure that it is constitutional. (A) True (B) False
Delegated legislation is subject to parliamentary scrutiny, which means that the legislature can review it to make sure that it is appropriate. (A) True (B) False
Delegated legislation can be a useful tool for governments, but it is important to make sure that it is used properly and that it is subject to adequate scrutiny. (A) True (B) False
One of the main advantages of delegated legislation is that it allows governments to respond quickly to changing circumstances. (A) True (B) False
One of the main disadvantages of delegated legislation is that it can be used to bypass the legislature and make laws without proper scrutiny. (A) True (B) False