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Delegated Legislation In The Army Act, 1950

Before we proceed with the paper, It is essential to define some basic information

Administrative law is the legal framework that controls administrative activity. Administrative law is a body of law that oversees government administration. it establishes the administrative authorities' organization, powers, and tasks. It encompasses administrative bodies' rule-making authority, administrative agencies' quasi-judicial functions, public authorities' legal duties, and regular courts' ability to oversee administrative bodies. It is in charge of overseeing the executive branch and ensuring that the public is treated fairly.

Delegation refers to the act of entrusting a person with the power or empowering him to act on behalf of the person who has given him that power, or to act as his agent or representative, according to Black's Law Dictionary. 'Delegated legislation' refers to the exercise of legislative power by an agent who is lower in rank or subordinate to the Legislature. Delegated legislation, also known as auxiliary legislation, is law enacted by a person or body other than Parliament.

The Indian Constitution empowers the legislature to delegate its powers to other authorities and to formulate policies to carry out the laws it passes. The Supreme Court held in D. S. Gerewal v. State of Punjab[1] that Article 312 of the Indian Constitution deals with the powers of delegated legislation. Justice K.N. Wanchoo observed:
"There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature."

Article 312's statement "Parliament may by law provide" should not be read as implying that there is no possibility for delegation in laws enacted under that section. The law in England allows Parliament to transfer any number of powers without restriction. In contrast, the Congress in America, like India, can only delegate certain of its powers. As a result, it does not have unrestricted or uncontrollable power. As a result, India allows for delegated legislation, but only in a limited and controlled manner.

The Army Act, 1950 is an Indian legislation that was passed by the Parliament on 22 May 1950 and came into effect on 22 July 1950. It's an Act to consolidate and amend the law relating to the government of the regular Army.

In India, the military has maintained a long-standing separation from public activities and issues. In truth, the military has a number of unique traditions and rituals that are only observed by military personnel. A mainly unique system of rules, regulations, and legal traditions is one of these distinctions. The operations of military officers are governed by a separate system of military law. The Army Act enumerates a large number of these statutes and provisions.

Military law, like many other regulations and statutes, is a relic of the British Raj. Many of its early foundations were laid against the backdrop of the 1857 uprising. The Indian Army Act, 1911 saw a number of changes as a result of the country's independence from British domination. The Army Act, which went into effect on July 22, 1950, brought about these reforms. The Army Rules 1950 came after that (later replaced by Army Rules 1954).

We shall now see some examples of delegated legislation under the aforementioned act.

Sections Delegating Power To Executive Under Army Act 1950 And Their Type

191. Power to make rules:
  1. The Central Government may make rules for the purpose of carrying into effect the provisions of this Act.
  2. Without prejudice to the generality of the power conferred by sub-section (1), the rules made thereunder may provide for:
    1. the removal, retirement, release or discharge from the service of persons subject to this Act;
    2. the amount and incidence of fines to be imposed under section 89;
    3. the assembly and procedure of courts of inquiry, the recording of summaries of evidence and the administration of oaths or affirmations by such courts;
    4. the convening and constituting of courts- martial and the appointment of prosecutors at trials by courts- martial;
    5. the adjournment, dissolution and sitting of courts- martial;
    6. the procedure to be observed in trials by courts- martial and the appearance of legal practitioners thereat;
    7. the confirmation, revision and annulment of, and petitions against, the findings and sentences of courts- martial;
    8. the carrying into effect of sentences of courts- martial;
    9. the forms of orders to be made under the provisions of this Act relating to courts- martial, transportation and imprisonment;
    10. the constitution of authorities to decide for what persons, to what amounts and in what manner, provision should be made for dependents under section 99, and the due carrying out of such decisions;
    11. the relative rank of the officers, junior commissioned officers, warrant officers, petty officers and non- commissioned officers of the regular Army, Navy and Air Force when acting together;
    12. any other matter directed by this Act to be prescribed.

192. Power to make regulations.
The Central Government may make regulations for all or any of the purposes of this Act other than those specified in section 191.

193. Publication of rules and regulations in Gazette.
All rules and regulations made under this Act shall be published in the Official Gazette and on such publication, shall have effect as if enacted in this Act.

I identify that the above provisions fall within the definition of Statutory Instruments. They are a type of legislation that allows the provisions of an Act of Parliament to be brought into force or changed later without the need for a new Act of Parliament. They are sometimes known as secondary or delegated or subordinate legislation

I also identify that the above provisions fall within the delegated legislation forms of:
  • Supplying details:
    This indicates that if the legislature formulates the legislative policy, the executive may be allocated the task supplying details in order to put the policy into effect.
  • Framing of Rules-
    A delegation of power to make rules, bye-laws, regulations, and the like is not illegal if the rules, bye-laws, and regulations must be put before the legislature before taking effect, and the legislature has the authority to change, modify, or repeal them.

List Of Rules Implemented Using Above Mentioned Sections

  1. Army Rules, 1954
  2. Military Prisons Rules, 1962
  3. Pension Regulations for the Army, 2008, Part - I
  4. Pension Regulations for the Army, 2008, Part - II

Relevant Case Law Regarding Above Mentioned Rules

Union of India v. Capt. S.K. Rao, (1972) 1 SCC 144[2]

  • Under Rule 14 of the Army Rules, 1954, the Central Government ordered Capt. S.K. Rao's expulsion from duty on April 9, 1959.
    The following are the events that led to his removal:
    • Rao served in the Indian Army as a commissioned officer in the Army Ordinance Corps Training Centre in Secunderabad. He was accused of committing acts of gross misconduct on April 4, 1958. The following were the allegations:
    • Knowing Kumari Prakash as the daughter of a fellow officer, Rao aided her in evading her parents' protection and plotting to flee with a sepoy.
    •  By threatening to hurt Kumari Prakash's parents, Rao frightened her into coming to his house, where he drove her in his scooter to the 5/11 Gurkha Rifles' unit lines, where he arranged for her to meet with a sepoy.""He (Rao) agreed to the girl being seen by the sepoy later at a nearby tea shop, where she was given a sari and blouse as a present from the sepoy in his presence.""As a result, Rao actively assisted his brother officer's daughter in her effort to elope with a sepoy.
    • Rao then took Kumari Prakash to the hotel 'Saidya Lodge' in Hyderabad, where they impersonated and gave a fictitious name as Mr and Mrs Prakash and secured a room to themselves.

      The case was investigated by the Court of Inquiry. After reviewing the Court of Inquiry's procedures, the Chief of the Army Staff concluded that Capt. Rao's behaviour was unworthy of an officer. He authorised administrative action under Rule 14 of the Army Rules, 1954, because he believed a General Court Martial trial of the officer would be inconvenient. Rao was summoned by memorandum dated September 4, 1958 to provide an explanation in response to the charges levelled against him. Rao's explanation was presented to the Central Government. It was deemed unacceptable by the Central Government, and on April 9, 1959, an order was issued dismissing the respondent from duty.
    • Capt. Rao then filed a petition under Article 226 of the Constitution to have the order of dismissal from service quashed, claiming, among other things, that Rule 14 of the Army Rules, 1954, was in violation of the Army Act, 1950, and that the conduct done under it was illegal.

Issues In The Present Case:
  • Whether rule 14 is ultra vires the Army Act 1950 i.e. is the delegated legislation legitimate in law?
  • Whether the words "subject to the provisions of this act" in section 19 make it subject to section 45?

What Was Held:
  • The Army Rules of 1954, which include Rule 14, were drafted using the authority granted by Section 191 of the Army Act of 1950.
    The Army Rules of 1954, Rule 14, reads as follows:
    1. If, after considering the reports on an officer's misconduct, the Central Government is satisfied, or the C-in-C is of the opinion, that a court-martial trial of the officer is inexpedient or impracticable, but that further retention of the said officer in the service is undesirable, the C-in-C shall communicate the Central Government's view, or his views, to the officer, together with all reports adverse to him, and he shall be notified.
    2. In the event that the officer's explanation is deemed insufficient by the C-in-C, or when the Central Government so directs, the case should be presented to the Central Government with the officer's defence and the C-in-suggestion C's as to whether the officer should be:
      1. being discharged from the military; or
      2. being asked to leave; or
      3. requested to resign.

Army Act of 1950 Sections 19 and 45 are as follows:
19. Termination of service by Central Government. Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act.

45. Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by courtmartial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned

(3) After due consideration of the reports, the officer's defence, if any, and the C-in-recommendation, C's the Central Government may dismiss or remove the officer with or without pension, or call upon him to retire or resign, and if he refuses, the officer may be retired from or gazetted out of the service on pension or gratuity, if any, admissible to him."

Thus, with regards to the delegated legislation present in the Army Rules 1954, specifically with regards to Rule 14, the SC held the following:
  • Action can be taken for misbehaviour against an officer whose continued service is not deemed desirable under the aforementioned Rule 14, without the officer being prosecuted by a court-martial. According to the rule, he must be requested to provide his explanation and defence before being removed. The Central Government has the authority to fire or remove the officer if the explanation is considered to be unacceptable.
  • Section 19 proposes that there should be regulations, and that the Central Government may dismiss or remove any individual subject to the Army Act from service, subject to the terms of the Act and such rules. The competence to create a regulation providing for the withdrawal from service of people subject to the Act is expressly granted in Section 191(2)(a). As a result, there may be a legal rule under which the Central Government may discharge a person from service, subject to the other provisions of the Act. Rule 14 is one of these rules, and it is not ultra vires.
  • It was contended that the words "subject to the requirements of this Act" in Section 19 render Section 19 subject to Section 45, and so the Central Government has no right to dismiss a person in defiance of Section 45's provisions. However, Section 19 gives you a separate power. Despite the phrase "subject to the terms of this Act," Section 19 refers to a person's dismissal from the service. Section 45 of the Act states that if an officer is found guilty by a court-martial, he or she may be cashiered or subjected to any lesser punishment specified in the Act.
  • A court martial is not required for expulsion from duty under Section 19 of the Army Act and Rule 14 of the Army Rules, 1954. As a result, Sections 19 and 45 of the Act are mutually exclusive.
  • The final result is that Rule 14 of the Army Rules, 1954, is not ultra vires the Army Act.

Critical Analysis Of Delegated Legislation Under Army Act

A country's defence system is a unified entity that protects the country from external threats. The more powerful a country's defense, the more powerful it is. The Indian military is our country's most powerful pillar. Military personnel have the most honourable position in our country, as they safeguard and protect the country's sovereignty and integrity not only in times of war but also in times of peace.

Their patriotism and service to the country are inextricably linked. In the service of the state, they are to command and possess qualities of the greatest degree known to humans. And as a result, they are subject to laws of a different degree to that which is subjected to civilians as seen above.

For a long time, the Indian military has kept its distance from the general populace. In the Indian army, certain customs and traditions are explicitly observed. The military in India is governed by its own set of rules and regulations. As a result, the Indian Army Act and Rules were enacted to preserve law and order within the army.

Thus, upon a perusal of the Army act 1950 and the Army rules 1954 which resulted from that, I have critically analyzed the statutes and have found the following ways in which the Army rules 1954 I.e. the delegated legislation, have made the implementation of the main act easier:
  1. It Reduced the Parliament's workload:
    The sorts of activities that presently fall under the purview of government are so complicated and numerous that the Legislature lacks the time and capacity to enact legislation to regulate them. As a result, it delegated part of its powers to the executive branch in order to avoid being mired down in technicalities.

    During the early 1950s, when the Army act was enacted, India was politically a very different entity facing its own unique situations. In the political sphere, In the early 50s, The Parliament enacted sweeping reforms that expanded women's legal rights in Hindu culture while also prohibiting caste discrimination and untouchability.

    Thousands of schools, universities, and advanced learning institutions, such as the Indian Institutes of Technology, were established across India as a result of Nehru's vigorous advocacy for enrolling India's children in elementary education. He advocated for a socialist model for India's economy-the Soviet model was based on centralised and integrated national economic programs.

    No taxes for Indian farmers, a minimum wage and benefits for blue-collar workers, and nationalisation of heavy industries like steel, aviation, shipping, electricity, and mining. Village common areas were taken, and a massive public works and industrialization drive resulted in the building of significant dams, irrigation canals, highways, thermal and hydroelectric power plants, and many other projects.

    As is visible above, the Parliament of the time was very busy trying to improve the lives of the common folk through a variety of socialistic reforms and laws. It simply couldn't afford to take out the time to focus on army rules and regulations. Thus, delegated legislation took the burden off the shoulders of the Parliament, allowing it to focus on improving a newly independent India, and allowed the Central government to instead frame rules with regards to this particular domain.
  2. Technical Expertise:
    The regulations are written by professionals from the relevant departments who are familiar with the current circumstances. They can figure out the intricacies considerably better than layman members of the legislature.

Both the Army act and rules come within the category of the domain of Military law. It is the body of legislation that governs the military's ability to maintain discipline. Every state must have a set of rules and regulations for establishing, maintaining, and administering its armed forces, which may all be classified as military law. The word, on the other hand, is usually limited to disciplinary military law, as described above-that is, the component of the code that promotes and enforces military discipline.

An expert is a person who is an authority on a subject or who has perfected a technique or skill. An expert will be the go-to person for support or guidance in any specialized topic, such as army laws and customs. Because you'll be able to detect possibilities and correct legal flaws, you'll be more imaginative and focused in your position. This may pave the way for better-drafted legislation that will help hundreds of thousands of people.

Thus, it is extremely obvious and necessary that army officers, being well educated, well versed with army customs and rules and having been in the job for decades (rich expertise) would help to create a more efficient and practical law for the army, instead of leaving the task to civilian parliamentarians who don't know any better. Thus, delegated legislation has benefitted the army in this regard also.

This research paper had set out to determine delegated legislation in the Army act, 1950. and its effects, taking into account two case laws that focus on the delegated legislation known as the Army rules 1954. This paper has shown that delegated legislation truly is a handy tool for the Parliament, as it allowed the Parliament to focus on more pertinent matters during a political period when India needed effective legislations and reforms the most I.e., in the 1950s.

Additionally, military law is a highly specialized topic, determining the rules and regulations of the Indian army. Thus drafting military rules and regulations needed expertise of many years, something which parliamentarians sorely lacked. Thus we can say delegated legislation is advantageous for Parliament's decision-making since it is a quick and efficient method that also decreases the Parliament's workload.

Furthermore, rather than relying on Parliament, delegated legislat ion grants power to appointed personnel who have expertise, are familiar with particular problems, and are responsible to society as a whole to develop laws.

This research extends our knowledge of delegated legislation, particularly with regards to the Army Act 1950. This study has demonstrated the need for delegated legislation in the modern era, and why the Indian parliament would be incompetent and incomplete without it.

  1. Wanchoo, D. S. Garewal vs the state of Punjab and another on 11 (last visited Mar 22, 2022).
  2. Sikri, Union of India (UOI) vs capt. S.K. Rao on 22 November, 1971, (last visited Mar 22, 2022).
Written By: Mohammed Arafat Mujib Khan

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