Delegated Legislation
Subordinate law, sometimes referred to as delegated legislation, is an essential feature of contemporary governance, especially in a dynamic and diverse democracy like India. It describes how the Parliament’s legislative authority is transferred to lower-level authorities, including the executive or administrative branches, so they can enact laws or regulations within the parameters set forth by primary legislation.
Definition and Conceptual Framework
The term “delegated legislation” refers to laws created by the executive branch or other lower-level entities using the authority granted by the main body, usually Parliament, to carry out, carry out, and oversee the primary legislation’s requirements. Administrative law, commonly referred to as subordinate legislation, permits legislative entities below Parliament to enact laws based on necessity, although Parliament maintains complete authority through acts.
The legislative process’s practical limits make delegated legislation necessary. The legislature, which is made up of elected officials, is in charge of draughting general legislation and regulations. However, it is not always possible for the legislature to handle every little detail through primary legislation due to the welfare state’s many activities and the growing complexity of societal challenges. Delegated legislation offers a way to assign certain legislative responsibilities to the executive branch, guaranteeing effective law administration and execution. It can take many different forms, including bylaws, statutory instruments, and orders in council. It is especially important in fields like local governance, public health, and economic regulation.
Control Mechanisms
A number of control measures are in place to guard against abuse and guarantee that delegated legislation stays within the confines of the law and the constitution. These can be divided into three categories: executive, judicial, and legislative controls. Each of these acts as a check and balance to ensure that the laws passed are lawful, constitutional, and compliant with established procedures.
Parliamentary Control
An essential constitutional duty is parliamentary control, which makes sure the executive doesn’t go beyond its assigned powers. It is used in direct and indirect ways:
Direct Control: The “laying” process, which involves presenting delegated legislation to Parliament for review, is the main means of achieving this. There are three primary approaches:
Simple Laying: Parliament has a certain amount of time to object to the rules before they are laid out. They are mostly used to inform Parliament and take effect immediately upon laying.
Negative Laying: Rules take effect right away, but if Parliament votes a resolution to forbid them, they can be revoked within a predetermined time frame. The most popular approach serves as a deterrent and occasionally compels the executive branch to change regulations in response to pressure from the legislature.
Affirmative Laying: Rules require discussion and approval before they can be put into force, and they must be specifically approved by a resolution of each House. This approach is only used for major effects, like public spending, taking the place of municipal Acts, or roughly replicating actual laws.
Through specialised committees like the Lok Sabha’s Committee on Subordinate Legislation, which examines delegated legislation to make sure it complies with the parent Act, looks for illegal tax imposition, and evaluates its effects on judicial authority, indirect control is exercised. The reports of these committees, which look at things like conformity to the act, retroactive implications, natural justice observance, and Consolidated Fund expenditures, are given a lot of weight by the government.
Because India has a parliamentary system of government, which permits direct monitoring as opposed to indirect and less effective control in systems like the USA, parliamentary control is especially significant there. However, there are drawbacks, such as the extensive delegation of authority, frequently with arbitrary criteria, which might reduce the efficacy of supervision.
Proposed reforms include requiring thorough memoranda to accompany delegated legislation, outlining the necessity, impact, and consultation process; establishing a uniform mandatory laying procedure (ideally affirmative resolution); and bolstering parliamentary committees by giving them more authority and resources. Accountability may also be improved by putting in place post-legislative inspection procedures like sunset clauses and periodic reviews.
Judicial Control
As a check on activities that go beyond the bounds of authority, judicial oversight guarantees that delegated legislation complies with the Constitution and the enabling Act (parent statute). Courts, especially India’s Supreme Court and High Courts, have the power to overturn regulations that go beyond their authority or contravene fundamental constitutional values.
There are two reasons why this control is used:
Substantial Ultra Vires: If the delegated law exceeds the authority granted by the enabling legislation or is in conflict with the Constitution, it is said to be ultra vires. This guarantees that the executive branch won’t violate fundamental rights or infringe on legislative authority.
Procedural Ultra Vires: The legislation is deemed invalid if the established processes for rulemaking, such as publishing or consultation, are not followed.
The ultra vires theory underpins the judiciary’s function, guaranteeing that no constitutional rights are violated.
Two methods are frequently employed in judicial review:
Filling Up Details Approach: The executive fills in the specifics after the legislative establishes general guidelines, which the courts then check for conformance with.
Intelligible Principle Approach: Courts evaluate whether the delegation offers unambiguous direction, making sure it is not overly broad and is based on understandable principles.
Executive or Administrative Control
Internal safeguards are part of executive control, which makes that delegated legislation follows the rules outlined in the parent Act.
This covers the following procedural requirements:
Pre-Publication: Before finalisation, draft regulations are made public and open to public comments and complaints. Although consultation is not required by law in India, several parent acts demand “previous publication,” which democratises the rule-making process.
Consultation: The Supreme Court has often ruled that clauses requiring consultation with statutory authorities or affected parties are obligatory, highlighting the need of public engagement for the general welfare and the execution of laws. In Banwarilal Agarwalla v. State of Bihar (AIR 1961 SC 849), for example, the Court determined that consultation is necessary to guarantee justice.
Publication: The Supreme Court held in Harla v. State of Rajasthan (AIR 1951 SC 467) that publication is necessary for the legitimacy of delegated law, making it a vital protection. Newspapers and gazettes are published in a directory format, with a focus on local languages to guarantee accessibility.
By enabling impacted parties to have an impact on administrative choices and guaranteeing that the executive respects due process, these methods promote accountability and openness.
Delegated Legislation in India: Specific Context
Given the scope and diversity of India’s governance requirements, delegated legislation is important. The Constitution strikes a balance between accountability and efficiency by permitting the transfer of legislative authority while enforcing safeguards against abuse.
Constitutional Framework: Through delegated legislation, Parliament can establish All-India Services under Article 312 of the Constitution. In order to avoid arbitrary rule-making, the “intelligible principle” philosophy makes sure that delegation is not overdone and must be governed by precise guidelines.
Case Laws: A number of significant cases demonstrate how delegated law is applied and governed in India.
Union of India v. Narendra Kumar: emphasised that in order to strengthen parliamentary scrutiny, rules under Section 3(5) of the Essential Commodities Act, 1955, must be submitted to Parliament.
The case of Chandra Bhan emphasised the need for delegation to be rational rather than capricious in order to avoid going against constitutional norms.
In order to preserve the balance of power, it was made clear in A.K. Roy v. Union of India that while the executive branch has the right to implement laws, it cannot go beyond its assigned scope.
Krishna Iyer J. highlighted parliamentary power as a “living continuity,” highlighting its constitutional necessity in Avinder Singh v. State of Punjab.
The broad delegation of authorities, frequently with generalised criteria, can undermine legislative authority. This is just one of the issues that still exist in spite of these processes. There is a lack of consistency in the laying and publication processes, and the amount of delegated legislation frequently surpasses Parliament’s ability to review. With only 40 days for Parliament to act, the use of negative resolution may not always for a comprehensive study, and insufficient memoranda accompanying rules may impede openness.
Conclusion
Delegated legislation is an essential tool for modern governance, enabling the executive to handle the complexities of law-making that the legislature cannot address alone. In India, it is controlled through parliamentary oversight, judicial review, and executive procedures, with significant case law like Chintaman Rao’s Case and Harla v. State of Rajasthan illustrating judicial intervention. However, challenges like broad delegation and weak scrutiny highlight the need for reforms, such as stronger committees and uniform standards, to maintain the balance of power and ensure accountability.
