DELEGATED LEGISLATION IN INDIA: A BROADER OUTLOOK BY - KOMAL PENSIA
DELEGATED LEGISLATION IN INDIA: A
BROADER OUTLOOK
AUTHORED BY - KOMAL PENSIA,
B.A. LL.B. (Criminal Law),
University of Petroleum and Energy Studies
ABSTRACT
Delegated Legislation serves as a justification for the
legislators, a protection for the administrators, and a challenge for
constitutional purists. The idea of delegated legislation, to put it simply, is
to give authorities at a lower level the authority to act and carry out particular
legislative duties. Its importance and need to have delegated legislation in
India had emerged significantly through the landmark Supreme Court judgements.
Although, there has been my criticisms on the part of such legislation but
there has always been a scope for general acceptance, checks and control and
guidelines in case of any misuse of such power by the administrative authorities.
I.
INTRODUCTION
A nation's operation is entrusted to the
three organs, primarily the legislative, executive, and judicial branches. For
the country to run well, these three organs cooperate with one another. The
primary purpose of legislation is to create the different laws that govern the
nation and the conduct of the citizens of the territory or those who may
otherwise have an impact on the nation. But such purpose majorly becomes
difficult for a country like India to hold or go through such processes as
smoothly as it should because the needs and wants of such a humongous nation
often stands difficult for the Legislature to understand. So, to overcome such
situations, the concept of delegated legislation comes into the picture.
The term "delegated
legislation" encompasses many different confusions. It serves as a justification
for the legislators, a protection for the administrators, and a challenge for
constitutional purists. The idea of delegated legislation, to put it simply, is
to give authorities at a lower level the authority to act and carry out
particular legislative duties. Other names for the idea of delegated
legislation include secondary, subsidiary, or subordinate legislation. To
lessen the workload on the legislative body and streamline the process, the
executive entities are given the authority to carry out legislative tasks under
this framework. This is a procedure whereby the executive body is given the
authority to enact laws to address the demands of the general populace who
reside in their territory for basic necessities. In the 20th
century, the importance of delegated legislation has invariably witnessed
growth along with some criticisms. This paper specifically deals with the
overall sphere of delegated legislation.
II.
HISTORY TO WITNESS ITS GROWTH
The Charter Act of 1833, when the
East India Company was regaining political influence in India, provides the
historical context for the delegation of power. The sole official body given
administrative authority by the Charter Act of 1833 was the
Governor-General-in-Cabinet. He had the power to enact laws and regulations
that applied to everyone, regardless of nationality, and which allowed for the
revocation, correction, or modification of any laws or regulations. The
Government of India Ac, 1935, which had a significant delegation strategy, was
passed in 1935. In India, the argument for the assignment of forces and
nomination of enactment was seen as inevitable until the report of the
Committee of Ministers' Powers was submitted and confirmed.
However, our Constitution was based
on the division of powers; a complete division of powers was unworkable; as a
result, it maintained the sanctity of the tenet in the most modern sense. The
assignment of forces is not prohibited under the Indian Constitution. However,
in a few agreements, the official had already made concessions to the
administrative forces. For instance, the Indian Constitution places a lot of
emphasis on the President's administrative powers. Under British rule, while
the debate over the issue in the West was in full swing, the issue of the delegation
of legislation in India first emerged. In independent India, the dispute over
how to allocate legislative authority appeared to be a confrontation between
English and American kinds of resolution.
More than 400 articles make up the
Indian Constitution, thus it is not surprising that the authors decided to
incorporate a solution. But why did these clauses become included in the
Constitution in the first place? This is as a result of the politicians'
propensity to multiply legal formulations in the Constituent Assembly. Compared
to other more significant constitutional matters that the Assembly sidestepped
and left to future agreement or judicial interpretation, these topics were of
modest importance on which legal formulation was made.
The Privy Council examined the
nature, scope, and viability of the legislative branch's authority in Queen v.
Burah. In this instance, the Privy Council ruled that the Councils of
Governor-General were the ultimate legislative body, with a wide range of authority
and qualified to delegate specific duties to provincial executors. The Privy
Council agreed to the transfer of legislative authority to the executive when
the New Delhi Act of 1912 was passed.
Reasons for the growth of delegated legislation:
a) Due to the widening scope of State
action, there is a substantial amount of legislation that prevents the
legislature from allocating enough time to thoroughly discuss every topic.
Legislation creates the broad policy—the skeleton—and gives the administration
the authority to fill in the details—"thus giving flesh and blood to the
skeleton so that it may live"—by passing the required statutes, bye-laws,
and other documents.
b) Sometimes, the subject matter on
which legislation is needed is so complex that the legislator—who is a member
of the general public—cannot be expected to understand it and pass the
necessary laws without the help of specialists. Despite being the best
politicians, members of parliament are not qualified to manage highly technical
issues that call for experts.
c) It is difficult to foresee every
possibility at the moment a legal legislation is passed, so some provision must
be made for these unforeseen events necessitating immediate response. A
legislative amendment is a tedious and laborious procedure, but the executive
can respond quickly to a situation by using delegated legislation.
d) The executive can try new things
thanks to the practise of delegated legislation. The benefit of such a strategy
is that it enables the delegated authority to consult interests that may be
impacted by a specific law, conduct actual tests as and when required, and make
the greatest use of the findings of his research and experiments. The rules and
regulations can be put into effect if they are deemed to be satisfactory. On
the other hand, if they are discovered to be flawed, flaws can be fixed right
away.
e) In an emergency, swift action is
necessary. The legislative process is not set up to offer an immediate fix to
the problem. The only practical—indeed, the only remedy that is even
conceivable—is delegated legislation.
f) Therefore, the executive is given
exceptional and highly broad powers to handle the situation in times of war and
other national emergencies, such as aggression, a breakdown in law and order, a
strike, a bandh, etc.
III.
LEGISLATIVE CONTROL ON DELEGATED LEGISLATION
While it is true that subordinate
legislation has grown to be a crucial component of legislation in light of the
complexity of lawmaking, it is also crucial to consider how the executive's use
of delegated authority to pass laws can be compatible with democratic
principles and parliamentary control. Since the legislature is the one who
grants the executive branch with legislative authority, it is up to the
legislature to oversee, regulate, and prevent the administration from using its
authority in a disagreeable, abusive, or unjustifiable manner.
According to M.P. Jain, the
legislature has the following authority over laws that are delegated:
“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.”
According to the following ways the
parliamentary body can efficiently exert its legislative control:
a) Laying on table- Under this method, the safety-valve
is followed by the legislature for exercising supervision, check and control
over the executive rule-making. It brings the legislature more-close to the
working of the administration. But it has not always been mandatory in nature.
According to it, the two purposes are served-
-
What
rules are made by the executive in respect to the powers delegated on them.
-
Opportunity
to question and challenge the rules so made or to be made by the executive
b) Scrutiny Committees- The main purpose of this committee is
to scrutinize and report to the respective houses whether the delegated
legislation is properly exercised or not by the executive.
c) Limiting the power properly and
precisely- It is
regarded as one of the other most useful controlling method because if the
extent of the power is not defined appropriately under the parent act and the
language is used broadly, there is always a high chance of the executive
authority misusing the powers conferred on it by the legislature and which may
result in unjustified interference with the rights of the citizens. Also, there
is a presumption based on the high positions that the one who occupies it has
good sense that is, they won’t misuse the powers but such a presumption is not
supported by the history and the reality does not warrant it. Therefore, It is
maintained that only reliable authorities, such the federal government or state
governments, should get power delegation since they will exercise the entrusted
authority in a prudent manner.
IV.
DO INDIA REALLY REQUIRES DELEGATED LEGISLATION?
Delegated legislation is one of the
most contentious topics in the field of legal theory because of its numerous
ramifications. The legislative, the executive branch, the judiciary, and the
free press are believed to be India's four pillars of democracy. The
constitution gives these pillars the authority to refrain from meddling in
other people's affairs. According to the Constitution, the Executive and
Legislative have the authority to enact laws and carry them out. The judiciary
has the authority to settle disputes and administer justice. However, it is
important to remember that in welfare states, the legislature must carry out a
variety of duties, and it is not simple for the legislature to handle everything.
In contrast to this rising
legislative activity, the legislatures lack the time necessary to pass laws
covering every last specificity. They have kept their focus on policy issues
and given the Executive broad discretion to enact laws that further the
legislative goals. The system of delegated legislation immediately springs to
mind in these kinds of circumstances.
As a result, the need for delegation
is evident, and it is defended on the grounds of speed, flexibility, and
adaptability. Additionally referred to as secondary legislation or subordinate
legislation, this delegation. The Enabling Statute, sometimes known as the
Parent Act, confers legislative authority on the executive. Authoritative
controls are ineffective due to the majority rule standard.
V.
CASES
1) Delhi Laws Act, 1912, re (1951): In this case, the seven judge bench
gave their separate opinions. The judges' rulings in this particular case
ultimately influenced how India perceived delegation. The 7 opinions were based
on the same position as the Supreme Court, which was as follows:
1) The Indian Constitution does not
mention "separation of powers."
2) No one has ever viewed the Indian
parliament as their agent. The notion of delegates non potest delegare is
therefore not relevant.
3) Establishing a separate authority
would be a clear dereliction of duty for Parliament.
4) Delegation is only permitted for
auxiliary tasks.
5) The transfer of power is subject
to restrictions. The fundamental duties of the legislature cannot be transferred.
Defining the legal policy and adopting that policy as obligatory codes of
conduct are essential functions.
2) Harishankar Bagla v. State of M.P
(1954): The Supreme
Court ruled that there was not an excessive amount of delegation in this case
because the legislative policy was clearly stated in the legislation. As a
result, the judiciary approved a relatively broad delegation of legislative
authority.
3) Edward Mills Co. Ltd. v. State of
Ajmer (1955): The
Supreme Court upheld the validity of the act. The legislative policy to set
minimum wages in order to prevent the possibility of labour exploitation,
according to the court, was evident on the act's face.
4) Hamdard Dawakhana v. Union of India
(1960): In this
case, the central act was held to be ultra vires on the ground of excessive
delegation and the Supreme Court held that the power delegated was unguided and
uncontrolled.
5) Gwalior Rayon Silk Mfg. (Wvg.) Co.
Ltd. v. CST (1974): Section
8(2)(b) of the Central Sales Tax Act of 1956 was maintained in this case by a
unanimous five-judge court. The guideline hypothesis, which was endorsed in
Birla Spinning and Weaving, was reiterated by Justice Khanna. While concurring
with the majority, Justice Mathew offered an alternative justification and
stated that it was not the Court's place to "hunt for legislative policy
or guidance in the crevices of the Statute." With this decision, the issue
of how fully the executive could carry out the tasks that the legislature had
granted it authority over in its capacity as a tax collector received some
resolution.
6) B. Shama Rao v. UT of Pondicherry
(1967): By a
majority of 3:2, the Supreme Court declared the Pondicherry Act invalid
and stillborn, concluding that the Pondicherry legislature had completely ceded
its legislative authority to the Madras legislature.
7) Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group (2006): The Supreme Court ruled that delegated legislation is
subject to the same presumption about validity as legislation passed by state
or federal legislatures.
8) M.P. High Court Bar Assn. v. Union of
India (2004): According
to the Supreme Court, the legislative branch of government has the authority to
enact laws. Therefore, the legislative branch cannot give the executive branch
the authority to establish laws. In other words, neither the creation nor
destruction of a parallel legislature are within the power of a legislature.
The legislature itself must maintain all necessary legislative functions. These
duties include formulating legislative policy as a binding code of behaviour
and determining its direction.
9) Rojer Mathew v. South India Bank Ltd.
(2020): The Supreme
Court ruled that the legislative transfer of power to the executive is
unavoidable and administratively necessary in light of the complexities of
contemporary administration as well as administrative urgencies. However, the
legislature cannot give the executive authority over crucial legislative
duties. It is difficult to define what constitutes an important legislative
function, but it is evident that an essential legislative function entails the
formation of a legislative policy that is binding on all parties.
VI.
SUGGESTIONS
1) Representatives who have been elected
have full legislative authority. But in practise, the political government,
under the direction of the bureaucracy, passes laws using the whip or other
means. As a result, a select group of elites have continued to hold the largely
exclusive right to make laws. It influences not only the effectiveness of the
laws produced but also strengthens the centralised structure of authority.
Therefore, social auditing must be conducted by the general population.
2) It is impossible to overlook the fact
that delegated legislation is here to stay and will continue to be part of the
legal system. In addition, there are serious risks associated with giving the
executive branch broad authority. Therefore, it is crucial that there be effective
oversight of the executive's use of the legislative branch. When the
legislative grants such authority to the administration, there should be two
levels of protection: There should be a "control mechanism" to
prevent the executive from abusing the power when the legislative grants such
authority to the executive in two situations: 1. when it does so; and 2. when
it does not.