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DELEGATED LEGISLATION IN INDIA AND USA: A COMPARATIVE STUDY
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DELEGATED
LEGISLATION IN INDIA AND USA: A COMPARATIVE STUDY
AUTHORED BY - POOJA KUMARI
Abstract
The
expectations of having a welfare state, overburdens the Legislature to conduct
their multifarious activities. As per the Separation of Powers the legislature
delegates or shares certain powers in the executive wing of the government.
Such delegation has been a deeply contested issue to India’s democracy.
Although, the need for delegated legislation emerged to avoid overburdening the
Parliament, give specified knowledge in emergent situations and have flexible
enactment. The project delves into flagging the various defects secondary
legislation forms in the modern welfare state, while critiquing the
constitutionality of such a power. In comparison, the situation in the United
States seems to take a fresher, more liberal approach. Even though both
countries exercise delegated with a limited scope. India places different, much
stricter mechanisms of scrutiny to ensure the validity of the law. The US
confers its ‘sweeping clause’, to execute laws that activate necessary federal
powers. The Rule Making procedure in US lays implicit guiding principles which
strike a balance between the delegated authority and its superior. A balance,
India could benefit from if applied in its own context.
Chapter 1: Introduction
“There would be an end to everything, were the same man or the same body,
whether of the nobles or the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions and of trying the
causes of individuals.”
-Baron de Montesquieu
-Baron de Montesquieu
While we are living in this 21st century it has
become easier for us to view the surrounding which is gradually taking the
course of being welfare and service provided by nature thereby overtaking its
nature of individualism. A welfare state welcomes a wide growth in a
government’s authority which stands as the essence of any welfare state.
Therefore, for such an expansion in the authority of the government
and rising complexities of administrative functions, coupled with the
requirement of specialized knowledge in certain areas, there is a requirement of
delegation of legislative powers, function, and authority in order to ensure
effectiveness in the administration procedure.
Delegated legislation is the only practical tool today to
govern a huge and diverse population. As modern society becomes more complex, there
is a growing trend of delegation of the legislative process to the subordinate
authorities. A large chunk of the legislation today is issued by the
administering authorities and hence delegating law-making powers has become an
absolute necessity. Delegated legislation can manage an “emergency situation”
as it immediately emerges without waiting for an Act to be passed through
Parliament to solve the specific circumstance. If we take for an
instance, situation of Covid 19 has exposed a collapsing system and has
revealed to the people the inefficiencies of their government, both the Central
and the State governments have failed their electorate. The pandemic which
claimed the lives of many people and hence any delay could have been lethal, it
was vital that quick decisions were made, formulated, as well as implemented,
and hence delegated legislation during such time is necessary to ensure that
life-saving policies are quickly enforced and maximum lives are saved.
Chapter 2: Meaning, Origin and Scope of Delegated
Legislation
2.1 Definition/Meaning of Delegated Legislation
The term delegated legislation in nowhere expressly
defined under any law or statue. The Black’s Law Dictionary defines the word
delegation as “the act of entrusting another with authority by empowering
him/her to act as an agent or representative.”[1]
The dictionary further defines ‘Doctrine of Delegation’ as “The principle
restricting the Legislature’s ability to transfer its legislative power to the
executive branch based on the separation of powers.”
It can also be said as “the act of making or
commissioning a delegate which means parting of powers by the persons who
grants the delegation and conferring of an authority to do things which
otherwise that person would have to do himself.”[2]
The Supreme Court has also explained the concept of
delegation as the entrusting, by a person or body of persons, of the exercise
of a power residing in that persons or body of persons, to another person’s or
body of persons, with complete power of revocation or amendment remaining in
the grantor or delegator.[3]
Some jurist and author have also defined the term
delegated legislation. According to Sir John Salmond, “Subordinate legislation
is that which proceeds from any authority other than the sovereign power.”
Famous author M.P. Jain[4]
has explained the term in two ways:
i.
Exercise by
subordinate agency or agency that is lower in rank to legislature delegated to
it by the legislature,
ii.
The secondary rules
made by the subordinate authority in the execution of the power bestowed on it
by the legislature.
According
to Justice P.B. Mukherjee, it is an expression which covered a multitude of
confusion. He viewed it as an excuse for the legislature, a shield for
executors.
Therefore, it can be said that delegated legislation is
nothing but a secondary or subordinate legislation in which the legislature
confers law/rule making power to the executive wing to implement and administer
it in a fruitful way. The primary legislation which confers the power is known
as the “Parent Act” and the secondary or ancillary legislation includes
bye-laws, circulars, notifications, orders, regulations, rules, schemes etc.
2.2 History and Evolution of Delegated Legislation
In a democratic State, where there is separation of
powers between the legislature and the executive, the concept of delegated
legislation is a regular feature. It can be said that in 1539, King Henry VIII
of England was conferred with extensive powers to legislate by proclamations
and executive laws under the Statute of Proclamations.[5]
Liberty is the first and foremost ideology of the people
of the United States. They believe in freedom and for that freedom to sustain,
they rely on the doctrine of separation of powers between the judiciary, the
legislature, and the executive. In the United States of America, the rule
against delegation of legislative power is basically based on the doctrine of
separation of powers and its necessary corollary ‘delegatus non potest delegare.’
This means that a delegated body, organ, or individual cannot further delegate
his power.
The roots of delegated legislation in India can be traced
back to the pre-independence era. Till 1949, the Privy Council was the highest
Court of Appeal and catered to appeals from India. The then Governor-General-in
Council was vested with the administrative powers under the Charter Act of
1833. The initial plan of delegation or powers of delegation evolved or
discussed under the Government of India Act, 1935.
2.3 Types of Delegated
Legislation
The goal for achieving a
welfare State, the legislature must confer various kinds of rule-making power
to the executive body. These rule-making powers are classified as below[6]:
i.
Skeleton Legislation – The main function of the delegated legislation is
called as “power to fill up the details.” This means that after a legislative
power has been conferred to the executive body under a statute by the
legislature, the executive shall work out details within the framework of the
legislative statute laid down in the plenary enactment. This was held in
Harishankar Bagla v. State of Madhya Pradesh[7],
where the Apex Court justified the broad delegation of legislative powers to
the executive authorities under the Essential Supplies Act and stated that ‘the
ambit and character of the Act is such that the details of that policy can only
be worked out by delegating them to a subordinate authority within a framework
of that policy.’ The power to fill up the details is known as ‘Skeleton Legislation.’
It is used to ‘denote the broad outlines of a particular scheme found in an Act
of which details are to be filled in later by the administrative orders of
experts.’[8]
ii.
Inclusion and Exclusion – Exemption of laws (inclusion and exclusion) can
also be delegated. It means that power to exempt someone from implementation of
the act can be delegated. Certain criteria are given by the Parliament to be
considered in order to exercise this power. The Apex Court has analyzed the
power of inclusion in the case of Edward Mills C. Ltd. V. State of Ajmer[9]
in which the scope of the power of inclusion in the light of Minimum Wages Act,
1948 was challenged. The Court held that the power of the executive body to add
certain types of employments to the Schedule as delegated power which is not
unconstitutional in nature. In contrary to the above scenario, in the case of
Jalan Trading Co. v. Mill Mazdoor Union[10]
the Apex Court held that the appropriate government by virtue of Section 36 of
the Payment of Bonus Act, 1965 has been invested with the power to exempt an
establishment from the operation of the Act is valid and does not confer any
excessive authority and was not unconstitutional.
iii.
Removal of Difficulty Clause – Removing difficulties while implementing
the policy can be delegated. Most of the implementation are procedural in
nature. If there is any difficulty, executive authorities can make rules, laws,
bye-laws etc. Under English Administrative Law, the power of removal of
difficulty clause is known as ‘Henry VIII Clause.’ He misused the power to
remove in such a way that the clause was named after him. In every enactment,
he used this power and changed the substantive part of the law. So, Judiciary
came up with certain restrictions to limit this power. This power to remove
weas only to be used in case of difficulty in implementation, no substantive
part can be changed. That means it is only related to procedural aspect and not
substantive aspect.
iv.
Excessive Delegation – It is also known as non-permissible delegation or power
of by-passing. It means excess use of power by the executive authority from
what they have been delegated. The Supreme Court has also discussed its
constitutionality in Harishankar Bagla v. State of Madhya Pradesh[11]
and held that it is not unconstitutional. There are some powers which cannot be
delegated like Amendment of an Act cannot be delegated, creating of new policy
or statue, repealing of clauses, taxing power, criminalization of an act,
Fixing the minimum and maximum punishment etc.
2.4 Objective and Significance of Delegated Legislation
Delegated legislation is the
only practical tool today to govern a huge and diverse population. It should
not only be permissible but should be wisely and efficiently utilized to
deliver the best results suited to ground realities. Reasons for delegation:
i.
Overburden – As many legal areas are emerging because of technical
development, scientific development, globalization, modernization,
liberalization, industrialization, and development in International Law further
developing the rights of individual. Also, the country is developing from State
to welfare State. That is why nowadays, a structure is being prepared where
delegated power is given to the executives for making the laws.
ii.
Time constraint – Law making requires adequate time and efforts but the
legislators or parliamentarians are often involved in various political debates
and discussions during the working sessions of the parliament which leaves no
scope for them to devote adequate time in the law –making process.
iii.
Technicalities – It may arise in certain areas at the time of
implementation. To meet the technicalities, this delegation is required. There
are certain areas where law in such part can be made by the person having
expertise in that area. For example, mining has different types like coal and
aluminum. So, different kinds of technicalities may arise in both areas.
Whenever the laws are applied to a particular subject-matter, there must be
some changes required but every time legislature cannot sit and make laws
specifically. Then Central government will delegate the power to certain
executives to make separate laws for meeting the technicalities.
iv.
Flexible – Law always follows the change in society. Whenever change
happens, every time we cannot knock the door of legislature to change the laws.
So, there is a need of some flexibility in laws. For example, in case of
Reverse Repo Rate, for flexibility, delegated power must be given to
executives. We cannot follow the same rate throughout the entire financial
year.
v.
Emergencies – Certain areas of law requires experiments. If delegated
power is in hand of executives, they can make the law and carry out necessary
experiments to understand the working of the law and its impact on the people.
In case of failure, they can take the law back and if it succeeds then it can
be implemented as law effectively.
Chapter 3: Constitutional Analysis of Delegated
Legislation in India and USA
3.1 Constitutionality of Delegated Legislation in India
Delegated legislation in India refers to the process by
which the legislative power is delegated by the Parliament or State
Legislatures to various executive authorities, such as government departments
and administrative agencies, to make rules and regulations for the
implementation of laws. The constitutionality of delegated legislation in India
is a matter that has been subject to judicial scrutiny and interpretation over
the years. The Supreme Court of India, on various occasions, has
upheld the constitutionality of delegated legislation, recognizing its
necessity in the modern administrative framework. The Court has held that if
the legislative policy and guidelines are provided in the enabling Act, the
delegation of subsidiary or ancillary powers is valid[12]. Here are some key points to consider
regarding the constitutionality of delegated legislation in India:
i.
Legislative
Authority: The Indian Constitution grants legislative authority to the
Parliament and State Legislatures under Article 245. Delegated legislation
should not encroach upon the primary legislative powers of these bodies. As per Article 246 of the Indian
Constitution, the Apex Court has interpreted that power to delegate is limited
as essential legislative functions cannot be delegated. Any law made by
an executive authority should be in line with the framework provided by the
Constitution and should not go beyond the scope of the parent legislation.
ii.
Source of Power: The
Constitution allows for delegation of legislative power to other bodies under
Article 248, List III (Concurrent List), and List II (State List) of the
Seventh Schedule. The enabling provision in the parent legislation must be
clear and unambiguous regarding the delegation of authority.
iii.
Procedural
Safeguards: Delegated legislation must adhere to procedural safeguards. It
should be made through a transparent and accountable process, ensuring that
affected parties have an opportunity to participate in the rule-making process.
In many cases, delegated legislation is subject to parliamentary or legislative
oversight.
iv.
Subject Matter:
Delegated legislation must be confined to the subject matter and purpose of the
parent legislation. It should not introduce new or unrelated provisions that
are beyond the scope of the enabling law.
v.
Reasonable
Restrictions: Delegated legislation should not violate the fundamental rights
guaranteed under Part III of the Indian Constitution. Any restrictions imposed
by delegated legislation must be reasonable and in the public interest.
vi.
Ultra Vires Doctrine:
Courts in India have the power of judicial review to ensure that delegated
legislation does not exceed its authority or violate constitutional principles.
If a rule or regulation is found to be ultra vires (beyond the delegated
power), it can be struck down by the courts.
vii.
Sub-delegation:
Delegation of legislative power should not be further sub-delegated to other
authorities unless expressly authorized by the parent legislation.
Sub-delegated authorities must also exercise their powers within the limits defined
by the parent law.
viii.
Accountability: The
executive authorities responsible for making delegated legislation are
accountable to the legislature and, ultimately, the people. They can be called
upon to justify their actions and decisions.
ix.
Judicial Review: The
judiciary plays a crucial role in determining the constitutionality of
delegated legislation. Courts have the power to review and strike down rules
and regulations that are inconsistent with the Constitution or the parent
legislation.
3.2 Constitutionality of Delegated Legislation in US
In the United States, delegated legislation refers to
regulations and rules created by administrative agencies, also known as federal
agencies or executive agencies. These agencies derive their authority to create
such regulations from Congress through statutes or laws. The constitutionality
of delegated legislation in the U.S. is generally accepted, but it is subject
to certain constitutional principles and limitations. The key constitutional
principles related to delegated legislation in the U.S. include:
i.
Separation of Powers:
The U.S. Constitution establishes a system of separation of powers among the
three branches of government: the legislative, executive, and judicial
branches. Delegated legislation is a way for Congress to delegate some of its
lawmaking authority to the executive branch (agencies). However, the
Constitution sets limits on this delegation to prevent the concentration of too
much power in one branch.
ii.
Non-delegation
Doctrine: While the Constitution allows Congress to delegate authority to
agencies to make rules and regulations, the delegation must be specific and
provide clear guidelines or standards for the agency to follow. The
non-delegation doctrine holds that Congress cannot delegate its essential
legislative functions to agencies without providing sufficient guidance. Courts
have been cautious about striking down delegations, but they do examine them to
ensure they meet certain constitutional standards.
iii.
Due Process:
Administrative agencies must follow due process when creating and enforcing
regulations. This means that individuals and entities affected by agency
regulations are entitled to notice and an opportunity to be heard. Due process
is a constitutional requirement to protect the rights of individuals.
iv.
Judicial Review:
Courts have the authority to review the constitutionality and legality of
agency regulations. This ensures that agencies do not exceed their delegated
authority or violate constitutional rights. Courts may invalidate regulations
that they find to be unconstitutional or not authorized by law.
v.
Congress's Oversight:
Congress has the power to oversee and review the actions of administrative
agencies. This includes the ability to pass legislation that might change or
revoke the agency regulations if Congress believes that an agency has
overstepped its authority.
3.3 Separation of Power and Delegated Legislation
Separation of powers and delegated legislation are two
important concepts in the field of constitutional and administrative law, often
associated with the functioning of government and the distribution of powers in
a democratic system. The separation of powers is a fundamental principle of
many democratic systems, including the United States and many parliamentary
democracies like India. It refers to the division of government authority and
functions into three separate branches[13]:
a)
Legislative Branch:
This branch is responsible for making and passing laws. It includes the
parliament or congress, which consists of elected representatives.
b)
Executive Branch:
This branch is responsible for implementing and enforcing the laws. It includes
the government, headed by the executive leader (e.g., the president or prime
minister) and various administrative agencies.
c)
Judicial Branch: This
branch is responsible for interpreting and applying the laws. It includes the
judiciary, which consists of courts and judges.
According to the separation of
power theory, the work of law-making and framing rules, regulations, and
bye-laws rest with the legislature, while the part of executing these
frameworks has been entrusted to the executive. The separation of power theory
aims to prevent despotism. The idea behind the
separation of powers is to prevent the concentration of power in a single
branch as it may result into abuses of power and anarchism. Each branch has
distinct functions and powers, and there are checks and balances in place to
ensure that no one branch becomes too powerful.
On the other hand, delegated legislation, also known as
subordinate or secondary legislation, refers to the process by which a
legislative body (such as a parliament or congress) delegates some of its
lawmaking authority to another body or entity. This delegated authority allows
the other body, often an administrative agency or executive body to create
detailed rules, regulations, or bye-laws within the framework of the
overarching law passed by the legislature. Delegated legislation is necessary
for several reasons, including the need to adapt to changing circumstances,
technical complexity, and the efficiency of governance.
The separation of powers and delegated legislation are
connected in a way that they involve a balance of power between different
branches of government. Delegated legislation is a way for the executive branch
to exercise legislative functions, which is why it's subject to checks and
balances to ensure that it doesn't undermine the principle of separation of
powers. In many democracies, the legislative branch grants the authority for
delegated legislation in enabling acts but retains the power to review and, if
necessary, revoke or amend such delegated rules. This ensures that the
executive branch does not overstep its bounds and remains accountable to the
legislature and, by extension, to the people.
In the leading case of Panama Refining Co. v. Ryan[14],
US Supreme Court was required to deal with the constitutionality of the
legislation conferring broad delegation of law-making powers to the executive.
In the said case, constitutionality of section 9(c) of National Industrial
Recoveries Act, 1933 was challenged on the ground that the US President has
passed the provision by exercising unconstitutional delegation of legislative
powers. Thereafter, US Supreme Court analyzed the scope of delegation of
legislative powers under section 9(c) and held that the provision was
unconstitutional because it failed to lay down the rules for the guidance of
state legislatures or state officers. It was further observed that the fact
that delegation was made to the president and that he will act for what he
believes to be public good is not a justification to validate the delegation of
legislative powers in the absence of legislative policy. It is a constitutional
imperative for the legislature to lay down the legislative policy and same
power cannot be conferred to the President for determining the policy in the
way he pleases.
3.4 Comparative Analysis of Delegated Legislation in India
and USA
The assessment to the fact that whether delegated
legislation in the United States is better than India, or vice versa, is a
subjective matter and depends on various factors and perspectives. Both
countries have their own legal systems, political structures, and historical
contexts, which influence the way delegated legislation is handled. Evaluating
the effectiveness and fairness of delegated legislation requires a deep
understanding of each country's legal and political framework. Here are some
key points to consider when comparing delegated legislation in the USA and
India:
i.
Legal Systems: - The
United States follows a common law legal system, where case law plays a
significant role in interpreting and shaping the law. Delegated legislation in
the USA often involves administrative agencies implementing and interpreting
laws. India follows a common law legal system as well, but its approach to
delegated legislation may differ in some respects due to its unique historical
and constitutional context.
ii.
Constitutional
Framework: - The United States has a federal system with separation of powers
between the federal government and individual states. This affects the
delegation of legislative authority and the role of federal agencies. India has
a federal system too but since it follows a quasi-federal model, therefore,
delegated legislation is subject to the provisions of the Indian Constitution.
iii.
Parliamentary vs.
Presidential System: - India follows a parliamentary system of government where
the executive branch is drawn from the legislature (Parliament). This can
affect the accountability of delegated legislation whereas, in the United
States, it works on a presidential system, where the executive branch is
separate from the legislative branch. Therefore, agencies are independent to
make and enforce their own regulations.
iv.
Accountability and
Oversight: - The effectiveness of delegated legislation often depends on
mechanisms for accountability and oversight. Both countries have their own
processes for reviewing and challenging regulations.
v.
Complexity and
Volume: - The volume and complexity of delegated legislation can vary greatly
between the two countries due to differences in the size of government, regulatory
needs, and the legal culture.
vi.
Judicial Review: -
Both countries have systems of judicial review that allow courts to assess the
validity of delegated legislation but the extent and nature of judicial review
can vary depending upon case to case.
vii.
Public Participation:
- The extent to which the public is involved in the process of making delegated
legislation can differ between the two countries as In India, extent and nature
of delegated powers is decided by the legislature itself whereas in USA, Executive
bodies/ agencies are separate from legislative bodies and they can themselves
decide the nature and extent of the delegated legislations.
Chapter 4: Principles to Control Delegated Legislation in
India and USA
Lord Atkin has propounded that,
‘Power tends to corrupt and absolute power corrupts absolutely.’ Going by this
principle there should be some restrictions and limitations to every power
delegated or, otherwise it would be misused[15].
Therefore, we need to study different principles to control delegation of power
given to the executive authorities. There are three different mechanisms to
control the administrative rule making powers. They are[16]:
i.
Parliamentary Control
ii.
Judicial control
4.1 Parliamentary
Control
In India the first and foremost controlling authority of
the delegated legislative powers is the parliament. The Constitution of India
provides the laws making power to the legislature or the legislative body. This
law-making power in certain cases is given to the executive authorities by the
legislature with respect of achieving a welfare State. The legislature does not
only have the right to delegate power but also has the duty to oversee the
functions of their agents i.e., executives and ensure that they are working in
accordance with the will of the Parliament. There are two stages where the
control over delegated legislation is exercised. They are:
Pre-enactment control: - We all know that the law-making
power vests with the legislature. When this power is utilized by the
legislative body i.e., when the legislature intends to make a new law which is
also called as a parent statue, it is done by drafting of a Bill of that
concerned statute. This is the time when the pre-enactment control takes place.
The Parliament should always have the direct control over the nature and scope
of the powers delegated as the rule is deemed to be fundamental in the context
of the parliamentary form. The limitation to this control is lack of time and
involvement of the legislative bodies. There is always a conflict amongst the
legislatures. The legislative authorities while dealing with the political
issues often indulge in baseless discussions which results in depriving the
nation from important legislative debates. Therefore, the concerned legislative
body who is indulged in drafting of a new bill should also draft a memorandum
with a separate clause on delegated legislation for the members of the
Parliament to review then and there only.
Post-enactment control: - This means that the control is
done after a law or statute is made or passed by the Parliament. It is done by
two processes, i.e., Direct control and Indirect control. Direct control is
done through the laying down procedure and Indirect control is done by the
scrutiny of parliamentary committees. The rules framed under a new statute
should be scrutinized by the parliament. It is their duty to examine and find
any irregularities or ambiguity in the said law.
4.2 Judicial Control
Judicial
control over delegated legislation is an important aspect of the separation of
powers in democratic systems of government. Delegated legislation refers to
laws or regulations that are made by an authority or body under powers
delegated to them by the primary legislature (usually the parliament or
congress). These regulations are essential for the efficient functioning of
government, but they also need to be subject to judicial oversight to ensure
they are consistent with the constitution and do not exceed the authority
granted to the delegated body.
Judicial review is the tool through which the judiciary can exercise control
over delegated legislation[17].
It can scrape off the legislation which it finds arbitrary, unreasonable, or
unconstitutional. Here are some ways in which the judiciary exercises
control over delegated legislation:
i.
Ultra Vires Review: The most common form of judicial
control is to determine whether the delegated legislation is "ultra
vires," which means beyond the powers granted by the primary legislation.
If a court finds that a regulation exceeds the authority granted by the
enabling statute, it can declare it void.
ii.
Substantive Review: Courts can also review delegated
legislation for its substantive content to ensure it is not arbitrary,
unreasonable, or irrational. This is especially important when delegated
legislation impacts individuals' rights or interests.
iii.
Procedural Review: The judiciary may also review the
procedures followed by the delegated authority when making regulations. If the
procedures prescribed by the enabling statute are not followed, the court may
declare the regulation invalid.
iv.
Constitutional Review: Delegated legislation can be
challenged on constitutional grounds if it violates constitutional principles,
such as fundamental rights or the separation of powers. The judiciary plays a
crucial role in upholding the supremacy of the constitution.
v.
Error of Law Review: Courts can review delegated
legislation to ensure that it has interpreted the primary legislation correctly
and there is no error of law.
vi.
Judicial Review of Reasonableness: Courts can review
the reasonableness of delegated legislation. If a regulation is found to be
unreasonable, the court can declare it invalid.
vii.
Void for Vagueness Doctrine: Courts may declare
delegated legislation void if it is too vague or ambiguous to be enforceable.
Citizens have the right to understand the laws that govern them.
viii.
Human Rights Review: In many countries, courts have
the authority to review delegated legislation for compliance with human rights
standards and principles.
ix.
Remedies: Courts can provide remedies such as
injunctions or declarations of invalidity when delegated legislation is found
to be unlawful.
Chapter 5: Criticism and Conclusion
Delegated
legislation is a process by which government authorities or bodies are granted
the power to make laws or regulations under the authority of an existing Act of
Parliament or Congress. While delegated legislation can be an efficient and
practical way to address the complexities of modern governance, it is not
without its criticisms and drawbacks. Here are some common criticisms of
delegated legislation: -
i.
Lack of Parliamentary Scrutiny: - One of the main
criticisms of delegated legislation is that it often does not receive the same
level of scrutiny as primary legislation (laws passed by the legislature).
Delegated legislation can be enacted more quickly and with less debate, which
can limit the ability of elected representatives to thoroughly review and amend
the regulations.
ii.
Potential for Abuse of Power: Delegated legislation
can grant significant powers to government agencies or officials, which may
lead to the abuse of these powers. Critics argue that unelected bureaucrats
should not have the authority to make important decisions that affect citizens'
rights and freedoms without adequate oversight.
iii.
Democratic Deficit: Delegated legislation can be seen
as undermining the principles of democracy because it allows decisions with
legislative implications to be made by unelected officials or bodies. This can
reduce transparency and accountability in the legislative process.
iv.
Complexity and Inaccessibility: Delegated legislation
can result in a complex web of regulations and rules, making it difficult for
the average citizen to understand their legal rights and obligations. This
complexity can hinder access to justice and create confusion.
v.
Lack of Public input: Unlike the legislative process,
which often includes public consultations and debates, delegated legislation is
typically developed within government agencies or ministries. Critics argue that
this lack of public input can lead to regulations that do not adequately
reflect the needs and concerns of the affected communities.
vi.
Erosion of Parliamentary Sovereignty: Some critics
argue that extensive use of delegated legislation can erode the principle of
parliamentary sovereignty. When many important decisions are made through
delegated legislation, it can diminish the role of elected representatives in
shaping the laws of the land.
vii.
Inadequate Safeguards: Critics argue that there may
not be sufficient safeguards in place to ensure that delegated legislation
aligns with the intent of the enabling Act of Parliament. This can lead to
regulatory overreach or deviations from the original legislative purpose.
viii.
Lack of Accountability: Holding government agencies or
officials accountable for errors or misjudgments in delegated legislation can
be challenging, as they often enjoy a degree of legal immunity or protection.
ix.
Difficulty in Repeal or Amendment: Delegated
legislation can be difficult to repeal or amend, even if it becomes outdated or
problematic. This can result in regulations that are no longer effective or
relevant.
Despite
these criticisms, delegated legislation can also have certain advantages, such
as its flexibility in responding to changing circumstances and its ability to
address technical and detailed matters that may be impractical for primary
legislation. The balance between efficiency and accountability is a central
issue in the debate surrounding delegated legislation, and efforts are often
made to improve the oversight and transparency of this legislative process.
Delegated
Legislation in India is constitutional if it conforms to the framework provided
by the Indian Constitution, the parent legislation, and the principles of
reasonableness, accountability, and adherence to procedural safeguards.
Judicial review is a vital mechanism for ensuring the constitutionality of
delegated legislation and for maintaining the balance of power between the
executive and legislative branches of government. Likewise, the
constitutionality of delegated legislation in the United States is discretion
of the US Supreme court to decide from case-to-case basis. Courts will examine
whether Congress has provided clear guidance to agencies, whether due process
rights have been respected, and whether regulations align with the Constitution
and federal statutes. As long as agencies operate within the bounds of their
delegated authority and adhere to constitutional principles, delegated
legislation is considered constitutional in the U.S. In essence, judicial
control over delegated legislation helps ensure that it remains within the
boundaries set by the primary legislature and respects the rule of law. It
serves as a crucial checks and balances on the executive branch's exercise of
legislative powers through delegated legislation, ensuring that it does not
infringe upon individual rights or exceed the authority granted by the
legislature.
To conclude, whether delegated legislation is considered
better in India or the US depends on one's perspective and the specific
criteria used for evaluation. It is important to note that both countries have
legal and political systems that have evolved to suit their unique needs and
circumstances, and what may be considered "better" in one context may
not necessarily apply to the other.
[1]Black’s
Law Dictionary, 8th Edition.
[2]P.
Ramanatha Aiyar’s, The Law Lexicon, 3rd Edition.
[3]Gwalior
Rayon Silk Manufacturing (wvg.) Co. Ltd. V. The Assistant Commissioner of Sales
Tax.
[5]Agricultural
Market Committee v. Shalimar Chemical Works Ltd., AIR 1997 SC 2502.
[7]AIR
1954 SC 465.
[8]Prag
Ice & Oil Mills v. Union of India, (1978) 3 SCC 459.
[9]AIR
1955 SC 25.
[10]AIR
1967 SC 691.
[11]AIR
1954 SC 465.
[14] 293 U.S. 388.
Article Information
DELEGATED LEGISLATION IN INDIA AND USA: A COMPARATIVE STUDY
Authors: POOJA KUMARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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