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Constitutionality of Delegated Indian Legislation

The issue of delegated legislation has been one of the most debated issues in the domain of legal theory because of its various implications. Scholars and Researchers have consistently presented differing and even contradicting views about delegation of power to legislate and have thus taken different stands on the issue. 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 present, there is a requirement of delegation of powers, function and authority in order to ensure effectiveness in the administration procedure. The task of augmenting the competency of the government to validate it to handle the social and economic issues and reconstruct the same has been accomplished through the methodology of delegation of legislative power to it. The very same delegation of power stands interrogative when it comes to its constitutionality. This question is indeed natural and original in form.

Globally, delegated legislation is welcomed in several countries. In case the Constitution of a specific country is silent regarding the definite limit of the delegated legislation, the responsibility of the same lies on the courts to decide. There is a presence of clear silence on the part of the constitution of countries like the USA, Canada, India, Australia, and South Africa in this context. While in the UK large volumes of administrative rule-making is not subject to parliamentary scrutiny but there are statutes to check the permissible limits of the same.

In the case of India, the constitutionality of administrative rule-making should be subject to discussion under the umbrella of three different periods ranging from the Privy Council to that of the present apex court, the Supreme Court of India. The article further deals with the weapon of constitutionality with light to India in depth.

Introduction
In the realm of legal theory, delegated legislation is one of the most debatable issues because of its various implications. Indian democracy is said to rest on the acclaimed four pillars and these are the legislature, the executive, the judiciary, and the press. These pillars are empowered by the constitution not to interfere in the matters of others. As per the Constitution, the legislative has legislative powers and the Executive has the power to execute the laws.

Similarly, the Judiciary has the power to resolve dispute and to met out justice. But we have to keep in mind that there are multifarious functions that have to be performed by the Legislature in welfare states and it is not an easy task for the legislature to look after every matter.

In contrast to this increasing legislative activity, the legislatures are not able to find adequate time to legislate on every minute detail. They have limited themselves to policy matters and have left a large volume of area to the Executive to make rules to carry out the purposes of the Legislature. In such types of situation, the system of delegated legislation comes to our mind.

Therefore, the need for delegation is necessary and is sought to be justified on the ground of flexibility, adaptability and speed. This delegation is also known as ‘secondary legislation’ or ‘subordinate legislation’. The Act that gives the executive the power to legislate is called the ‘Enabling Statute’ or ‘Parent Act’. The standard of rule of the majority has made authoritative controls inadequate. The term delegated legislation is hard to characterize.

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with the power or empowering him to act on behalf of that person who has given him that power or to act as his agent or representative. ‘Delegated legislation’ means exercising of legislative power by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature.

Delegated legislation, additionally alluded to as an auxiliary legislation, and is an enactment made by an individual or body other than Parliament. Parliament, through an Act of Parliament, can allow someone else or somebody to make enactment. An Act of Parliament makes the system of a specific or particular law and tends to contain an outline of the purpose for the Act.

By delegating the legislation by Parliament to the Executive or any subordinate, it empowers different people or bodies to integrate more details to an Act of Parliament. Parliament along these lines, through essential enactment (for example an Act of Parliament), licenses others to make laws and guidelines through delegated legislation. The enactment made by authorize person must be made as per the reason set down in the Act of Parliament.

The Dictionary further defines ‘Doctrine of Delegation’ as:
“The Principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch.”

‘Subordinate Legislation’ has been defined as:
“Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority.”

The Principle of Delegated Legislation has been defined as:
“This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”
Delegated Legislation: Meaning
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. The simple meaning of the expression “delegated expression” may be:
When the function of the legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses:
  1. Exercise by a subordinate agency of the legislative power delegated to it by the legislature
  2. The subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and Quasi-Legislation. The concept can be further substantiated with the help of an example. The Parliament of UK itself made the Road Traffic Act, 1930, and so the legislation is original (rather than delegated). Section 30 of that Act provides that, “the Minister [of Transport and Civil Aviation] may make regulations as to the use of motor vehicles, their construction and equipment.”

Accordingly the Minister made the Motor Vehicles (Construction and Use) Regulations, 1955. The regulations were made by someone other than Parliament and are, therefore, delegated (rather than original) legislation.

Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act.

By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purpose laid down in the Act.

History of delegated legislation in India:
The historical backdrop of the delegation of power can be followed from the Charter Act of 1833 when the East India Company was recapturing political impact in India. The Charter Act of 1833 vested the administrative powers only in the hands of the Governor-General-in Council, which was an official body. He was enabled to make laws and guidelines for revoking, correcting or modifying any laws or guidelines, which were for all people regardless of their nationality.

In 1935 the Government of India Ac, 1935 was passed which contained a serious plan of delegation. The report of the Committee of Ministers’ Powers was submitted and affirmed which completely settled the case for assignment of forces and appointment of enactment that was viewed as inescapable in India.

However, our Constitution depended on the separation of power; a total partition of forces was unrealistic henceforth it kept up the holiness of the tenet in the cutting edge sense. The Indian Constitution does not deny the assignment of forces. Then again there are a few arrangements where the official had been conceded with the administrative forces.

For instance, the administrative forces of the President under the Indian Constitution are prominent. The problem of the delegation of legislation in India originated under the British rule when the controversy on the problem in the West was in full swing. In independent India, the conflict of settling the problem of the delegation of legislative power was prima facie to a conflict between the English and American type of solution.

The Constitution of India comprises of more than four hundred Articles and it had not been surprised if the Constitution makers include some solution for it. But why these provisions were incorporated in the Constitution? This is because the politicians in the Constituent Assembly tended to multiply legal formulations. These issues were of minor importance on which legal formulation was made in comparison to other greater constitutional issues that were by-passed by the Assembly that were left to future accord or judicial interpretation.

In the case of Queen v. Burah, nature and extent of Legislature power and the feasibility of its delegation was considered by the Privy Council. The Privy Council, in this case, held that Councils of Governor-General was supreme Legislature and has ample number of powers and who are entitled to transfer certain powers to provincial executors. At the time of passing of New Delhi Act of 1912, the Privy Council accepted the transfer of Legislature power to the Executive.

Types of Delegated Legislation
Delegated legislation means giving power or authority to someone lower than his rank to make laws. So there can be many ways in which this excess of power can be given to subsidiary rank people or an Executive.

These types are as follows:
  • Orders in Councils:
    This type of Delegated legislation can be given by Queens or the Privy Councils. This Delegated legislation allows the Parliament to make laws without going through the Parliamentary proceedings. Today, its main use is that it gives legal effect to European directives. When the order issued under the privilege of the Queen or the Crown such order is subject to review by the courts.

    But order issued by the Parliament may or may not be subject to review by the courts as it is made within the prescribed limits Act of Parliament. In both the case the question can arises that if this legislation is the same as the Executive legislative. The answer to this question is yes, it is equivalent to executive legislative.

    There is no major difference between these orders and Executive legislative almost they both are same. The meeting of Privy council in such case could simply means a meeting of some Privy Councillors which includes three or four ministers, President, Councils and Clerk of Privy Councils. This shows that this order is issued by the Executive who exercises powers of the Council.
     
  • Rules of the Supreme Court and the County Courts:
    The Parliament by statutes bestows some persons or authority with the power to make laws for a specific purpose. But it is different in England where a Court has been given wide power to make laws. This task of making law has been entrusted upon the Rules Committee of the Supreme Court and the County Courts.

    Entrusting Judicial branch to control its Procedural law to a great extent has an advantage as it is given to that authority who knows better about it than any person. Procedure and cost that are drawn by Rules Committee of County Courts deals by the County Courts itself. Such rules are not subject to the control of Parliament. When these rules used to come into force? It comes into force when the Lord Chancellors with the consent of the Rules Committee of the Supreme Court confirms it.
     
  • Departmental or Executive instructions or regulations:
    When the power of legislature directly delegated to the administration such as a Board, Ministers or a Committee, then the exercise of that given power results in delegation through Departmental or Executional Instructions or Regulations. Sometimes very wide powers are given to the administration or the delegated person. But this wide delegation of legislation is not accepted by the judiciary as it is difficult for them to control administrative action. There is extensive use of this delegated legislation in today’s world. Nowadays only the broad line of making legislation is in the hands of Parliament and the rest power is given to the Administrator.

Delegated legislation by laws:
It can be given in two ways, firstly, it can be given by laws of autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a local authority.
  • By-laws of autonomous bodies:
    These autonomous bodies have got the power to pass by-laws on matters affecting them and other people in that locality or people residing in a particular area. For example, they can make laws as public utility authorities for light, water, etc. Usually, these authorities are given the power to make rules for regulating their working. Such by-laws are subject to judicial review. It can be reviewed to check that it must not be ultra virus the Parent Statute. These autonomous bodies have the power to frame rules for themselves. One more example of this autonomous body is an association of Employers. The rules of these association are termed as voluntary but this is not so in reality. It is fictitious as in its effect these rules are binding upon members like other rules such as rules of a professional association, industrial organisation, etc.
     
  • By-laws of the local authority:
    Parliament has the power to make new local bodies or it can alter the existing body. It empowers such body with powers to make by-laws for themselves for specific purposes. These authority exercises excess power for public health, safety, and for good rule and governance. These by-laws incur a penalty on its breach.

Reasons for Growth of Delegated Legislation
  1. Pressure upon parliamentary time:
    The horizons of state activities are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.

    In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on Ministers’ powers has rightly observed:
    The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires
     
  2. Technicality:
    Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs, electricity etc.
     
  3. Flexibility:
    Parliament cannot foresee all the contingencies while passing on enactment. To satisfy these demands of unforeseen situation some provisions are required to be made. A legislative amendment is a slow and cumbersome process. But by the device of delegated legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added empowering the administration to overcome such difficulties by exercising delegated power. This Henry VIII clause confers very wide power son the Government.
     
  4. Experiment:
    The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. As for example, in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilize the result of his investigation and experiments in the best possible way. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately.
     
  5. Emergency:
    In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient- indeed the only possible remedy. Therefore, in times of war and other national emergencies, the executive is vested with extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars similarly in cases of epidemics, floods, inflation, economic depression etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.
     
  6. Complexity of modern administration:
    The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where control and regulation over private trade, business or property may be required to be imposed, it is necessary that the administration should be given ample power to implement such policy so that immediate action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries and it becomes indispensable in modern administrative era.

Growth of Administrative Process bulk of Law comes from the Administrators:
  1. Law making or ever widening modern welfare and service state is not possible. For the nature and quality of work required 365 days – may not be sufficient and if overburdened the parliament can’t give quality legislation. Also it is occupied with important policy matters and rarely finds time to discuss matters of details
  2. Filling in Details of legislation- The executive in consultation with the experts or with its own experience of local conditions can better improvise. Also legislation has become highly technical because of the complexities of a modern govt.
  3. Need for flexibility - Ordinary legislative process suffers from the limitation of lack of experiment. A law can be repeated by parliament itself, if it required adjustment administrative rule making is the only answer between two sessions.
  4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis legislation is needed.
  5. When Govt. action required discretion – rule making power of administrative agencies is needed when the government needs to have discretion to carry out the policy objectives.
  6. Direct participation of those who are governed is mere possible in delegated legislation.

Limitations on Delegated Legislation:
  1. The Legislature cannot delegate Essential Legislative Functions which consist in the determination or choosing of the Legislative Policy and of formally enacting that policy into a binding rule of conduct. Justice Cardozo famously stated that the Legislature cannot delegate ‘un canalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing
  2. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or a power to fill up the details.
  3. Whether any particular legislation suffers from Excessive Delegation has to be decided by courts having regard to the subject-matter, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted.
  4. Essential Legislative Functions include the power to repeal or modify a law and cannot be delegated.
  5. In the absence of an express or implied power to that effect, Delegated Legislation, be it a rule, bye-law or a notification, cannot have retrospective operation.
  6. A power to Tax or levy any fee cannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very specific and there is no scope of implied authority for imposition of such tax or fee.
  7. One of the important conditions prescribed under Section 23of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, must publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby
  8. Where the delegating statute itself is ultra virus to the Constitution of India, the rules made under such statute are also unconstitutional.
  9. The power to modify the parent statute is limited to bringing about consequential changes and cannot be exercised to subvert the policy laid down by the legislature. No radical change in the enacted law is permitted.
  10. The legislature is the master of policy and if the delegate is free to switch policy it may be usurpation of legislative power it.
  11. Delegated Legislation may also be declared invalid on the following grounds:
    1. Violation of the Constitution of the India.
    2. Violation of the Enabling Act.
    3. Violation of Principles of Natural Justice when the Statute itself provides of such requirement.


Constitutionality of Delegated Legislation:
Position in the USA: Two phenomena operate in the USA namely
  1. Separation of Power and
  2. Delegatus non potest delegare.
Since Congress was itself a delegate, how can it delegate its power? The framers of the American Constitution were imbued with the political theories propagated by John Locke and Montesquieu. John Locke has said:
The legislature cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.

According to Locke:
the legislature neither must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have. Montesquieu had developed this doctrine of separation of powers.

The framers of the American Constitution adopted the doctrine in its full force as seen in the provisions of the US Constitution: Article 1, Section 1. All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 2, Section 1: The executive power shall be vested in a President of the United States of America.

Article 3, Section 1: The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress many, from time to time, ordain and establish.

With regard to the control of the legislature over delegated legislation, M.P. Jain states:
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.

In India parliamentary control of administrative rule-making is implicit as a normal constitutional function because the executive is responsible to the Parliament.

There are three types of control exercised:
Direct General Control

Direct but general control over delegated legislation is exercised:
  1. Through the debate on the act which contains delegation. Members may discuss anything about delegation including necessity, extent, type of delegation and the authority to which power is delegated.
  2. Through questions and notices. Any member can ask questions on any aspect of delegation of legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules.
  3. Through moving resolutions and notices in the house. Any member may move a resolution on motion, if the matter regarding delegation of power is urgent and immediate, and reply of the government is unsatisfactory.

Direct special control
This control mechanism is exercised through the technique of “laying” on the table of the House rules and regulations framed by the administrative authority. The notable use of this technique was made in the Reorganization Acts of 1939 to 1969, which authorised the President to reorganise the executive government by administrative rule-making.

In England the technique of laying is very extensively used because all the administrative rule-making is subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which prescribes timetable. The most common form of provision provides that the delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be laid before Parliament after being made, a copy shall be laid before each House before the legislation comes into operation. However, if it is essential that it should come into operation before the copies are laid, it may so operate but notification shall be sent to the Lord Chancellor and the Speaker of the House of Commons explaining why the copies were not laid beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.

Laying on Table
In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question or challenge the rules made or proposed to be made.

Advantages of delegated legislation:
There are many advantages of delegated legislation as it is essential for a democratic country to flourish or make laws according to its public.

These advantages are as follows:
  • Reduce the workload of Parliament:
    The Parliament has to pass several legislation within a short span of its life. It has to take such type of intensive work that it can hardly enact the law provisions in detail. If the Parliament devotes its time in laying down minor and subsidiary detail of each and every legislation by making all the rules required for that legislation then it will take too much time and in that time it can only deal with a small amount of Act in detail.

    It is lengthy, time consuming process and also it is expensive to operate Parliament process. It cannot cope up with the growing needs of legislation. So there arises the need to overcome that load and it can be possible only through delegating ones legislative authority to the subsidiary ones or the executives. Delegated authorities which an expert resides are more appropriate to make laws and to meet the needs of the community. It saves ample amount of time of the Parliament because it gives the members a chance to create or to make rapid changes in small items.
     
  • Technical Expertise:
    Today’s world has become very technical and complicated by the introduction of modern means and advancement in technology. So it is necessary for the members of parliament to know each and every field but one cannot be the master of all fields. Therefore, it is difficult for the members of Parliament to have all knowledge needed for making laws in various fields like on controlling technology, ensuring environmental safety, dealing with various industrial problems which need basic knowledge.

    Also, Parliament is not a forum which can make laws on administrative and technical details but it is more concerned with social issues and the rule of law. Therefore, it is thought that it is better for the parliament to debate on the broad topic or the main topic and leave the rest detail for the fulfilment by the expert of that particular field. Thus, delegates authorities with extra skills, experience, and knowledge are more suitable for making law.
     
  • Decentralized decision making:
    The local councils are more suited to make laws for their constituencies as they better know the condition of their constituencies than any other. These local bodies can make better laws for their area that a Parliament cannot do so because they knew their locals need, whats they want? And it is very essential to know a person for whom we are making laws. The Parliament makes the laws for broad principle while its delegate handles the local principle. This separation of power helps in the smooth running of the legislature.
     
  • Emergencies:
    Delegated Legislation allows for rapid action in case of an emergency but Parliament take too much time in taking any decision. It has to call for a session then the Parliamentarian discusses the emergency topic. And after that, if they all conclude then only that act would have passed. In some cases, the Parliament have not enough time to accurately make a piece of legislation and a quick and safety legislation is required for the safety of a nation. For example, in the UK, the Prevention of Terrorism Act was created as delegated legislation and now this act has added a new prohibited group to the terrorism. Therefore, it is more appropriate for the delegate authorities to make legislation and deal with it.
     
  • Enables flexibility:
    In delegated legislation, Parliament makes law in broader skeletal form and the executive had to fill the minor details. So these minor details can be changed immediately without making any amendment in the Parliament. Therefore, it is flexible and the legislation made by this can be best for the needs of modern public.
     
  • Seeing the interest of affected person:
    To make legislation effective it is important to know the need and interest of that person who is going to be affected by that law or legislation. Only sitting in big houses and making a decision for the affected person is easy but knowing their interests and their needs by living with them in the same condition in which they are living is tough and then making law for them will surely benefit that affected person. Therefore, it is necessary to delegate the rights of legislation by the Parliament to the Executive. The Executive knows the condition of the affected person better than the Legislature.
     
  • Experimental basis:
    It can be used as an experimental basis. It allows in quick lawmaking. If a law made for some circumstances and it does not fulfil the condition for which it has made then it can be changed and a new law can be made at the place of the older one. And if this law gets fitted according to the situation then this law will prevail in that area. In this way, it is an advantage in the view of modern public.
     
Case Laws for Delegated legislation under the Constitution of India:
Although the concept of delegated legislation was not mentioned specifically in the Indian Constitution it can be understood by interpreting Article 312 of the given Constitution. This Article gives right to the Rajya Sabha to open a new branch of All India Service with a majority of two-thirds majority vote.

This means that some powers of legislation will be delegated to the new recruiter of All India Service. There are many cases through which delegated legislation under the constitution of India can be understood.

These are:
D.S. Grewal v.The State of Punjab
Facts: This case questions the constitutionality of All India Service Act, 1951. The appellant was appointed to All India Service and posted to the State of Punjab. He held the charge of Superintendent of Police in various districts but was reverted or returns to the post of Assistant Superintendent of Police in August 1957 and was posted to Dharamsala in March in the year 1958.

In the same month, he was informed that an action has been taken against him under Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee was set up against him under the leadership of Shri K. L. Bhudiraja. He then immediately made an application under Article 226 of the Indian Constitution before the Punjab High Court challenging the constitutionality of the Act and legality of the enquiry against him. Six contentions were made by the appellant lawyer.

Judgment: K.N. Wanchu, Justice of the Supreme Court at that time, dealing with the power of delegated legislation under Article 312 of the Indian Constitution. As the case has been very serious the appellant can be removed or compulsorily dismissed from the post by the Central Government and therefore Central Government has instituted enquiry against him. There is nothing mentioned in Article 312 of the Indian Constitution that takes away the power of delegation.

· The delegation power of India and America is that the Congress doesn’t have much power of delegation but it is different from the English in which the parliament is supreme has an excess of delegating power.

Panama Refining Co. v. Rayan
Facts:
Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the President of the United States with some powers under which he can make any order and violation of that order may lead to panel provision. The President issued the prohibition made by the above act through the executive and authorized the Security of Interior to exercise all the powers vested in the President under section 9(c) of the Act. The Security of Interior issued a regulation to accomplish the President’s order(s). The Section mentioned above was challenged on the ground that it was an unconstitutional delegation of legislative power by the Congress.

Judgment: It was held by the Supreme Court of the United States that delegation of legislative power given by President is void. The court held that Congress can delegate power to the Executive only on two conditions. Firstly, the Statute laid down these policies. Secondly, one has to establish the standards and give the administration the power of making the subordinate rule within the given limit.

Sikkim v. Surendra Sharma
Facts: After Sikkim became the State of the Union of India, the Directorate of Survey and Settlement of Government of Sikkim created and advertised for certain temporary posts. Like other people, the respondent has also applied for the post. They got selected and were appointed in different capacities. After the survey work got completed some of the employees got terminated from the job. In 1982, some of the employees, who were ‘not locals’, filed a writ petition in the High Court of Sikkim challenging the decision of the Government asking why it has fired the employees from the service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees solely on the ground that he is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held that all rules and legislations created under the power which is granted under sub-clause (k) of the Article 371F constituted subordinate legislation. This article was added to the Constitution through the 36th Constitutional Amendment.

Conclusion:
If in India parliamentary control over delegated legislation is to be made a living continuity, it is necessary that the role of the committees of the Parliament must be strengthened and a separate law like the Statutory Instruments Act, providing for uniform rules of laying and publication, must be passed. The committee may be supplemented by a specialised official body to make the vigilance of delegated legislation more effective. Besides this other measures should be taken to strengthen the control of Parliament over delegated legislation.

The Parliamentary control over delegated legislation in USA and India is not as effective as in UK. In UK the laying off procedure is followed effectively because there all administrative rule-making is subjected to the control of Parliament through the Select Committee on Statutory instruments. In India the control is not very much effective. There are no statutory provisions regarding ‘laying’ of delegated legislation. Though the working of the Scrutiny committees is not very effective, yet they have proved to be an effective body in examining and improving upon the legislative control over delegated legislation.

What can be inferred from the above writings is that the judiciary prefers the mechanism of delegated legislation and therefore to avoid insurrection in the administrative process, the requirement of constitutionality of the rule-making power comes to play. It is true that be it the doctrine of separation of power or the rule of law, both aims at independence of the government organs and therefore delegated legislation becomes unfavourable.

But the fact that both these doctrines cannot be implemented without effective mechanism of the rule-making power. In this modern world where there is a growing necessity of technicality, viability, experiments, delegated legislation requires introduction. A method that becomes essential must be implemented with safeguards that are delivered by determining the constitutionality of the same.

Written By: Bhaswat Prakash, Student of Ajeenkya DY Patil University, Pune, B.A.LL.B.

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The Factories Act,1948

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There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

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Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

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