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Understanding The Control Mechanism Over Delegated Legislation In India And Critically Analyzing The Judicial Control Of Delegated Legislation With Relevant Case Laws

Delegated legislation that it was an expression which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a shield for Executors and a provocation to the Constitutional Jurist.- Justice P.B Mukherjee

Delegation of powers means the powers passed on by the higher authority to the lower authority to make laws. Delegated legislation means the powers given by the legislature to the executive or administration to enact certain laws. Under Delegated Legislation there are mainly three kinds of control mechanism:
  1. Parliamentary Control;
  2. Judicial Control;
  3. Executive Control

Parliamentary Control Over Delegated Legislation:

This is up to Parliament to give anyone the powers that it possesses, just as parliament transfers legislative powers to some other entity, e.g. executive, they must ensure that such powers are duly exercised by the government and there is no abuse of authority that the executive is provided with.

Judicial Control Over Delegated Legislation:
The legislation that has been delegated does not fall beyond the reach of the Judicial Review and in almost all countries the courts are allowed to decide on the validity of delegated legislation. Despite the presence of parliamentary control, judicial control of delegated legislation is recognized as an integral form of control mechanism. The fundamental justification for judicial review is based on the Courts' constitutional obligation to obey the rule of law principle.

In a constitutionally controlled state, maintaining that the laws made by Parliament are not Ultra vires under the Constitution is the essential function of the judiciary, and that the delegated legislation enacted under the statute falls within the limits of both the parent statute and the constitution. Judicial control is considered to be a more effective form of control, since the courts have the power to strike down a law if it is ultra vires with the parent statute or the Constitution.

The term Ultra virus means that beyond power or authority or lack of power. An act may be said to be Ultra Virus when it has been done by a person or a body of persons which is beyond his, it’s or their power, authority or Jurisdiction.

Procedural and Executive Control:

There is no particular procedure for it until the legislature makes it mandatory for the executive to follow certain rules or procedure. To follow a particular format it may take a long time which will definitely defeat the actual objective of the act. Hence, procedural control means that under Parent act certain guidelines are given which need to be followed while whether it is mandatory or directory to follow it or not.

It includes three components:

  1. Pre-publication and consultation with an expert authority,
  2. Publication of delegated legislation.
  3. Laying of rules.
     

Following are the grounds on which judiciary can control/ review the delegated legislation which is as follows:

  1. When the Parent Act is ultra vires the Constitution:

    This is a situation where it is observed that if the Parent Act violates the provisions of the Constitution, it is void and unconstitutional.

    The delegation made under such Act is also void, in the case of Chintaman Rao vs. State of M.P, AIR 1951 SC 118, the District Collector under delegated authority passes an order for prohibiting Beedi manufacturing, where it was held that the order passed is ultra vires because it violates the fundamental right guaranteed under Article 19(1)(g) of Indian Constitution which talks about freedom of trade and profession which has been guaranteed to all citizens of India.

    In certain cases it can be observed that certain provisions of the Act may be unconstitutional on the ground of being excessively delegated which doesn’t mean that the whole act is unconstitutional.
     
  2. Delegated Legislation not authorised by the enabling act: In most countries where there is excess of authorities it invalidated the subordinate legislation. In the case of R. v. Minister of Health, Ex Parte Davi, (1929) 1 K.B. 618. Lord Hewart, C.J, granted the prohibition to restrain the power of Minister if the scheme made by the Minister is ultra vires of the enabling act which was the Housing Act, 1925. In many cases the court has made an effective application of its mind to seek that there is proper delegation of power and the power does not goes beyond the scope of enabling authority by the delegated Act by defining the limits of the law- making power.

    Delegated Legislation is Ultra Vires the Constitution: In certain situations, the Parent Act holds good and is within the limits of Constitution. However, the delegated legislation made under the Parent Act may be ultra vires the Constitution.

    In Dwaraka Prasad v. State of U.P, Clause 3(2) (b) of the U.P. Coal Control Order (issued by government under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946) was declared ultra vires the Constitution as it was violative of Art. 19(1)(g) though the Parent Act was intra vires the Constitution. As per Clause 3(2) (b) laid down that the State Coal Controller can exempt any person from the license requirement for Coal business if he deems fit, were the Supreme Court held that this clause is invalid as it give arbitrary and unguided powers to the executive without any guidelines in the matter of exempting from license, which violates Art. 19(1)(g).

    In the case of Air India v. Nargesh Meerza, The regulation may be Air India providing for termination of service of an air hostess on her first pregnancy, was held violative of Article 14 of Constitution. In another case of Central Inland Water Transport Corporation Ltd. v. Brajonath, AIR 1986 SC 1571 the Supreme Court declared that Rule 9 (1) of Central Inland Water Transport Corporation Lt., Services and Discipline and Applied Rules, 1979 was unconstitutional and being violative of Article 14, 39 and 41. The Court held that such rules affected Article 14 , therefore, the impugned rules were struck down as it violated Article 14.
     
  3. Delegated Legislation is Ultra vires the Parent Act:

    The validity of delegated legislation can be questioned on the ground that it is ultra vires of the Parent Act. It was observed in the case of Ram Prasad v. State of U.P, ,the Uttar Pradesh Panchayat Raj Rule 87 framed under the Parent Act (U.P Panchayat Act, 1947) was held to be ultra vires of the Parent Act.

    In the case of Additional District Magistrate (Rev.) v. Sri Ram, the Supreme Court held that the conferment of rulemaking power by an Act does not enable the rule- making authority to make a rule which travels beyond the scope of enabling Act. In this case Delhi Land Revenue Act and Delhi Reforms Act did not empower rule making authority to classify land or to exclude any area from preparation of record of right and annual register. The Court held that the rules are ultra-virus the parent/ enabling act.
     
  4. Delegated Legislation Ultra Vires any General Law/ Rule of Law: The validity of the Delegated Legislation can be challenged on the ground that it is ultra vires the general law. It takes place, when the delegated makes a law in force unlawful and unlawful act lawful.

    In A.V. Nachane v. Union of India, AIR 1982 SC 1126 in this case the rules framed by the Union Government under delegated authority by L.I.C. with regard to bonus to Class-III and Class- IV employees was held ultra vires since it supersedes the terms of the Bonus Settlement 1974.
     
  5. Unreasonableness:

    Generally, a statute cannot be challenged on the ground of unreasonableness. The leading case on unreasonableness is Kruse v. Johnson, (1898) 2 QB 91, in this case the Parent Act conferred power on the County Council of Kent to make bye- laws. A bye- law was made ‘ prohibiting any person from playing music or singing in any public place or highway within fifty years of any dwelling house.’ As it was reasonable, the same was therefore held ultra vires.
     
  6. Mala fide (Bad Faith):

    In simple words, the meaning of Mala fide is ‘bad faith’ or ulterior motive. In A.K. Ray v. India, AIR 1982 SC 710, the Supreme Court rejected the argument that the government’s failure to bring into force certain provisions of the 44th Amendment of the Constitution was mala fides. It is extremely difficult to prove mala fide before the Court.

    Hence, the malafide for challenging a delegated legislation is resorted to in rate cases where strong proof of bad faith is available. In UK and in the USA, the rule to exclude enquiry into good faith of a legislature is applied to all subordinate legislative bodies as well.
  7. Excessive Delegation:

    In India, only in few cases, delegation of law making power is struck down by the Courts on the ground of excessive delegation.
     
  8. Sub- delegation:

    A general and a basic rule from the law of agency is that a delegate cannot re- delegate its authority, but in certain cases it is not applied to the countries who have written constitution. The principle of sub delegation is subject to criticism and not accepted, unless there is a provision express or implied to that effect. Hence, the validity of an act under sub-delegation can be questioned ultra vires.
     
  9. Non-compliance of Court’s order:

    If it has been observed that the government tries to escape and avid the direction given by the Supreme Court, then the Court has the power to struck down that particular act.
     
  10. Non-application of Mind:

    Delegated legislation can also be struck down by the judiciary if it is observed that the delegatee has not made an application of their mind in delegating the powers to the relevant facts and situations while taking the decisions.
     
Therefore, from the above explanation one would clearly understand the kinds of control mechanism over delegated legislation and with deep analysis of Judicial Control over delegated legislation.

References:
  • Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur
  • Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law Agency, Faridabad, 2011.
  • Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011.
Webliography:
  • http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html
  • https://thewire.in/government/delegated-legislation-parliament-executive
  • https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp
  • https://www.prsindia.org/administrator/uploads/general/1370586704_Parliamentary%20Scrutiny%20of%20Executive%20Rule%20Making.pdf
  • http://14.139.60.114:8080/jspui/bitstream/123456789/714/20/Subordinate%20or%20Delegated%20Lesislation.pdf
  • http://bvpnlcpune.org/Article/Judical%20Control%20over%20Delegated%20Legislation-%20Prof.pdf
  • Judicial control of delegated legislation in India, V. N Shukla, Journal of the Indian
  • Law Institute , Vol. 1, No. 3 (Apr., 1959), pp. 357-374 (18 pages)
  • https://www.lawteacher.net
  • http://ijldai.thelawbrigade.com

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