CHAPTER 4 DELEGATED LEGISLATION The following topics are discussed in this Chapter: A. What is delegated legislation . Need for delegated legislation : Reasons for ils growth . Advantages and disadvantages of delegated legislation . Classification of delegated te legislation . Which functions can be delegated and which cannot be delegated Conditional legislation, sub-delegation and administrative instructions .. Constitutional validity of delegated legislation |. Control over delegated legislation A. WHAT IS DELEGATED LEGISLATION According to the strict theory of Separation of Powers, it is the function What is delegated of the legislature to legislate and of the executive to administer and execute legislation? the law made by the legislature. However, with the multifarious functions Explain delegated and responsibilities shouldered by the State today, it is virtually impossible 'egislation with for the executive to restrict itself to the traditional executive functions. Apart clea to from pure administrative functions, the executive organ of the government a fsa today performs several functions which are ‘legislative’ or ‘judicial’ in nature. : Adhering strictly to the theory of Separation of Powers has become almost impossible in the modern world. So, what is delegated legislation? Although Justice Mukherjea once Write a short note observed that the words delegated legislation cover “a multitude of on:Delegated problems", the term can indeed be explained in simple language thus: If Legislation. the function of legislation is delegated or entrusted to any organ of the — M-U. Nov. 2015 Government other than the legislature, such delegation being by the legislature itself, the resulting legislation made by the non-legislative organ 's called delegated legislation. While the framework of a law is constructed by the legislature, in Define delegated Practice, there are several aspects that the legislature may be unable to legislation. ‘oresee. Further, it is impossible for any law to be all-encompassing. It is, (2 marks) therefore necessary and logical to delegate certain functions of legislating _M.U. Nov. 20 :on gislation : Forms or types of delegated Zomnm 2011 | othe body that would be executing it, namely, the executive. The term ie 2014 | Sélegated legislation thus refers to this functional form of legislation. New. 2014 Thus, the Civil Procedure Code (CPC) empowers the various High Dec, 2019 Courts to annul, alter of add to any of the Rules contained in the Code. 39 — Scanned with CamScannerWhat is Sub- ordinate Legisla- tion? (2 marks) M.U. Nov. 2016 Delegated legislation is a necessary evil. Discuss. MU. Nov. 2007 Nov. 2011 ADMINISTRATIVE LAW 40 F High Courts to fram Likewise, S. 129 of the CPG authorises the Hig! © TUles riginal side of such * working of the 0 Couns procedure regulating the ‘odities Act empowers the Central Govern Similarly, the Eso marlaclUey storage, Wranspor, distribute to regulate the tion tise or consumption of essential commodities "| disposal, acquis rmits. Likewise, the Foreigners Act authorises ys Gant Government to pass orders in connection with the entry, Preseny, and departure of foreigners who are in India. / According to Salmond, legislation is of two types: supreme or Suborcinay When the legislation proceeds from a supreme or sove} ign legis! ature ~ yg lled supreme legislation. However, if it floy, the Parliament of India — it is cal ; sla itor, from any authority other than a sovereign power, it is termed subordinate ¢, legislation, which is dependent for its existence and continuanc, aoe pect or sovereign authority. According to Salmond, delegates legislation is thus legislation made by a person or body of persons other thay the sovereign legislature by virtue of powers conferred by the legislature, In case of delegated legislation, the Act of the legislature that confer: such powers is known as the ‘parent Act’ or the ‘primary law’ and the rules, regulations, orders, etc. made by the executive authority pursuant to such delegation are collectively known as subordinate legislation or delegate: legislation or subordinate laws or subsidiary laws or ‘child legislation As Salmond explains, the parent Act proceeds from the supreme pows of the State and has “no rival in the field". It does not derive its authority from any other organ of the government. Subordinate or delegated legislation, on the other hand, owes its existence, continuance and validty to the superior authority, that is, the legislature. Delegated legislation : Whether a ‘necessary evil’ Wade and Forsyth (in their well-known treatise entitled “Administrati® Law’) have remarked that administrative legislation has traditionally beet looked upon as a necessary evil, an unfortunate but inevitable infringeme™ of the doctrine of separation of powers. In their words, “In reality, it 8 more difficult to justify it in theory than it is possible to do without it Practice.” It is increasingly being realised th i me 5 Bro there is only a hazy bordel between legislation and administration — a if stration — “ two fundamentally different fort mathe a ico sare itfere Ms of slate power is, at best, mislead" reel Purely legislative functions, are the prime. responsibility of th fail, o say that no legislative power whatsoever can be delegt! le in a me i visio? between the legisla na ¢modern State. The idea of a clear dvs the ex ive is “ f of polical theory” and cannot be accepted (2 legacy from an older lay. Again, a Memby , gislati 5 is. er on the Committee on Ministers’ Powers ceted 5 Scanned with CamScannerDELEGATED LEGISLATION a Given the tremendous increase in the volume of delegated legislation in modern times, it would be neither feasible nor advisable to revive the old theory of a strict separation between these two organs of the government. Whether one likes it or not, delegated legislation has become a fact of our political life. \t is better that we accept it as a “necessary evil" rather than pretend that it does not exist. The ground reality of its existence and continuity cannot be ignored in today's political set-up. As observed by the Commission on Subordinate Legislation, - “Today, the question is not whether delegated legislation is desirable or not, but what safeguards and controls can be introduced, so that the power conferred is not misused or misapplied.” B. NEED FOR DELEGATED LEGISLATION : REASONS FOR ITS GROWTH Several factors have contributed to the growth of delegated legislation in the modern State. As seen earlier, today, the State is not a Police State, but a Welfare State which, in addition to its traditional functions, has taken upon itself multifarious welfare activities for the good of its citizens, so as to take care of them “from the cradle to the grave”. It is because of this radical change in the role played by the State that delegated legislation has become not only necessary, but a/so inevitable. As observed by the Supreme Court, the practice of empowering the executive to make subordinate legislation “has evolved out of practical necessity and the pragmatic needs of a modern State”. (Ajoy Kumar Banerjee v. Union of India, AIR 1984 SC 1130) As explained by the Supreme Court in another case, the legislature cannot possibly foresee every administrative difficulty that may arise in operating a particular statute. Delegated /egislation can fill up the gaps and provide the details. When delegated legislation is validly made pursuant to the power delegated by the parent Act, it has the force and effect of the parent Act itself. (St. John Teachers Training Institute v. Regional Director, NCTE, AIR 2003 SC 1533) The following seven factors can be regarded as the principal factors that have contributed to the growth of delegated legislation: (a) Technical issues Members of Parliament, not being experts in technical matters, cannot be expected to legislate on technical issues where the assistance of experts is required. MPs may be the best politicians — but certainly not the best experts in fields as diverse as labour, tax, gas, drugs, electricity and so on. Rules and regulations pertaining to such matters are best left to experts in the respective fields. (b) Complexity of the modern State ‘As observed by the Supreme Court, however much one may like to deplore the ‘new despotism’ of the modern executive, the complexity of Define delegated legislation and explain the factors leading to the growth of delegated legis- lation in India. MU. Apr. 2008 May 2019 MCQ No. 23 Scanned with CamScannerADMINISTRATIVE LAW ‘es on the government have solutely necessary for the he executive. (Sitaram 42 the modem society and the demands it mal set in motion forces which have made it ab: legislatures to entrust more and more powers to ll v. State of UP, AIR 4972 SC 1168) (c) Pressure on parliamentary time The bulk of modern legistation is so heavy that it difficult, if not impossible, to devote sufficient time for detailed discussions ‘on all matters. One cannot even imagine more than 500 Hon'ble Members of the Lok Sabha trying to focus on every miniscule legislative detail before the House passes an Act. As observed by Garner, or the skeleton, leaving the giving “flesh and blood to the I today's legislatures find ulates the general policy details to be filled in by the executive, thus keleton”, SO that it can stay alive. In other words, 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”. (Sir Cecil Car) (a) Flexibility When the legislature passes a statute, it is all the contingencies which may arise in the future in the practical application of such a law. OF course, it is possible to amend the statute as and when the need arises. Howeve), this is a slow and cumbersome process. In such situations, delegated legislation allows the executive to Syercome practical difficulties by sxercising the power conferred on it by the parent Act. Thus, several statutes have a “removal of difficulties” clause which empowers the executive {0 “remove” the difficulties that arise in the implementation of a statute as Qnd when such difficulties arise. (This is discussed at greater length later in this Chapter.) (e) Experimentation ‘As seen in Chapter 1, there is a lot of scope for experimentation in the administrative process. Take for example, road traffic matters. The administrative authorities (the road transport authorities in this case) C= frame a new rule, ty it out for some time, and if found unsuitable unsatisfactory oF unworkable, may modify or even repeal it without muel formality. (f) Emergency situations Quick action is needed in times of emergencies like wa disturbances, floods, epidemics, strikes, lock-outs, bandhs, ete. The lend! legislative process is just no! suited for such situations and if the exeoul ig armed with special powers, the situation can be kept under control. wonder there was a phenomenal growth of delegated legislation uring the World Wars. the legistature form almost impossible to foresee +, internal Scanned with CamScannerDELEGATED LEGISLATION 43 (g) Better understanding of ground realities The persons who administer the law are in closer contact with local problems, and therefore, in a better position to work out specific regulations which would best attain the legislative goals. C. ADVANTAGES AND DISADVANTAGES OF DELEGATED LEGISLATION Like all things in this world, delegated legislation has its plus and its minus points. The chief advantages and disadvantages of delegated legislation may be summarised as under: Advantages 1. Technical issues. - See “Technical issues", above. 2. Pressure on parliamentary time. - See “Pressure on parliamentary time", above. Flexibility.- See “Flexibility’, above, Experimentation. - See Experimentation", above. Emergency situations. - See “Emergency situations", above. Better understanding of ground realities. - See “Better understanding of ground realities", above. 7. Control over administrative authorities. — In the absence of rules and regulations, administrative authorities may enjoy wide and uncontrolled discretion. It is thus better to control this discretion through appropriate rules and regulations. 8. Conditional legislation. - An Act may provide that it shall come into effect when certain conditions are fulfilled. Practically speaking, administrative authorities are better suited to verify the fulfillment of such conditions and bring the Act into effect. Disadvantages 1. No parliamentary deliberation. - Parliament does not get a chance to debates rules, regulations, efc. made by the executive. These are made in the ante-chamber of the bureaucrat and the benefits of parliamentary deliberations are lost. 2. No prior publicity. - Whereas drafts of Bills are often published for public comment and criticism, prior publicity is not always possible in the case of rules and regulations and the benefits of public discussion and criticism are lost. 3. Not enough publicity. - Everyone is supposed to know the law because statutes are, generally speaking, easily accessible, This is not so in the case of delegated legislation, where the mass of rules, regulations, bye-laws, orders, etc. often lie buried in the files of the bureaucrats. Antecedent publicity, that is, publicity before enactment, is often missing in delegated legislation. Paae Scanned with CamScannerWrite a short note on: Forms of delegated legislation. What is delegated legislation? Discuss the different forms of delegated legis- lation. State its importance in a wellare state. M.U. Nov. 2014 ‘Apr. 2016 ‘Apr. 2017 What is sub- delegation? (2 marks) MU. Apr. 2017 Jan. 2019 44 ADMINISTRATIVE LAW tes are normally given greater publicity 4, Lesser reach. ~ Since statu! than rules and regulations, the former can reach out to a greater number of citizens. 5. Possibility of overreach and or overlapping. — As delegated legislation ig not always drafted by experts in law, there is always a possibilty of overreaching and overlapping. 6. Possibiliy of contusion. ~ Experience shows thal delegated legislation can often be contusing, complex and difficult to understand. Moreover, ‘ican be different (and at times, contradictory) in different states, thus leading to contusion and lack of uniformity. 7. Possibility of poor drafting. ~ Delegated logistation may nat be well considered of drafted by legislative experts and may thus sufler from infirmities due to poor drafting. 8. Voluminous. - The sheer volume of delegated legislation causes complexity and confusion. It is virtually impossible for anyone to keep abreast of all pieces of delegation legislation 9. Broad and sweeping powers. - A removal of difficulties clause in delegated legislation (also referred to as “Henry VIII clause) can give broad and sweeping powers to the executive. The courts have often been called upon lo interfere when such a clause gives power to an official functionary to amend or repeal a particular statute. (See Patna University v. Amita Tiwari, referred to later.) D. CLASSIFICATION OF DELEGATED LEGISLATION : FORMS OR TYPES OF DELEGATED LEGISLATION Broadly speaking, delegated legislation can be classified in the following four ways: a. Title-based classification: Thus, delegated legislation may be in the form of Rules, Regulations, Circulars, Notifications, Orders, Directions, Bye-laws, Schemes, etc. b. Purpose-based classification: Delegated legislation can also be classified on the basis of the purpose for which powers have been delegated to administrative authorities. Thus, the executive may be empowered to decide the day on which a particular Act is to come into force (as for instance, in the case of the Consumer Protection Act 1986) or to extend the applicability of an Act to more territories that those specified therein (as for instance, in the case of the Transfer o! Property Act, 1882) or to include or exclude the operation of an Act to certain territories, persons, industries or to suspend or modity the operation of the Act in given circumstances, and so on c. Discretion-based classification: Under some statutes, the execuiv® sa tinted. Such legate eee coe fovea. when certain conditions fulfilled. Such legislation is also called “condi “contingen” , legislation (discussed later in this Chapter condone, of, eam |. Authority-based classifi : jn to further delegate the Dowel cotenet Hid gules oe This is som: 4 it to a subordinate aut is sometimes referred to as “sub-delegation”. Scanned with CamScannerDELEGATED LEGISLATION 45 E. WHICH FUNCTIONS CAN BE DELEGATED AND WHICH CANNOT BE DELEGATED |. FUNCTIONS WHICH CAN BE DELEGATED Obviously, the legislature cannot delegate all its powers and functions to administrative authorities. A review of judicial authorities and decisions on the subject would indicate that the following functions can be delegated by the legislature to the executive, namely, - (a) Commencement of a statute: An Act may validly provide that it would come into force on the “appointed day’, that is, on a day appointed (i. decided) by the government. Thus, the Consumer Protection Act, 1986, lays down that the Act “shall come into force on such dale as the Central Government may by notification appoint”. (b) Inclusion: Sometimes an Act provides that it shall apply only to some parts of the country, conferring a discretion on the executive to extend it to further territories, as in the case of the Transfer of Property Act, 1882. (c) Exclusion: Sometimes, an Act empowers the government to exempt certain persons or establishments from the operation of its provisions, as for instance, the Payment of Bonus Act, 1965, which empowers the government to exempt any establishment or class of establishments from the operation of that Act (a) Modification: An Act sometimes contains a provision empowering the executive, in certain circumstances, to modify some provisions thereof before applying them to particular territories (e) Supplying the details: In some statutes, the legislative policy is formulated in the Act, but the function of supplying the details for giving effect to this policy (for instance, by way of making Rules, Regulations, etc.) is left to the executive. Thus, for instance, the All India Services Act, 1951, empowers the government to make Rules to regulate the conditions of service of the All India Services. (f) Suspension: Some Acts (as for instance, the Tea Act, 1953) give the government power to suspend or relax the provisions of the Act in certain circumstances. (g) Application of existing laws: An Act may authorise the government to adopt and apply Acts prevailing in one part of the country 10 other parts of the country, with or without necessary modifications and changes. " (h) Prescribing the penalty: Sometimes, an Act empowers the executive to prescribe punishments for its violations, subject to certain ceilings laid down in the Act itself. Thus, under the Electricity Act, 1910, the Electricity Board can prescribe the punishments for violations of the Act, subject to the maximum punishment laid down in the Act. Scanned with CamScannerMCQ No. 24 Write a short note on: Henry Vill clause. MU. Apr. 2007 Nov. 2007 What is Henry VII clause? (2 marks) M.U, Apr. 2015 Nov. 2015, Nov. 2016 Dec. 2017 Jan. 2019 46 ADMINISTRATIVE LAW (i) Framing Rules, Regulations, etc.: Several Acts contain a Provision (often to be found in the last few sections of the Act), empowering the government to frame Rules, Regulations, Bye-laws, etc, which are to be placed before the legislature, which may amend, modify, or even tepeal the same. (i) “Removal of difficulties” clause (Henry VIII clause): As seen earlier, when the legislature Passes an Acl, it cannot foresee all the practical difficulties which may arise in its implementation. Therefore, statutes olten empower the government to make necessary changes to facilitate its implementation, Such a Provision is also inserted when an existing Statute is extended to other territories where the socio-economic conditions are different. Most often, such a clause is of a “narrow” type, the typical wording whereof is reflected in the Competition Act, 2002, S. 65 whereot runs as follows : At any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Otficial Gazette, make such provisions not inconsistent with the provisions of this Act aS may appear to it to be necessary for removing the diticully. PROVIDED THAT no such order may be made under this section after the expiry of a period of two years from the commencement of this Act. Every order made under this section shall be laid, as soon be after it is made, before each House of Parliament.” A provision like the one above is valid and cannot be seriously objected 12, 8S the sole purpose of Parliament is to enable minor adjustments in the Act to overcome practical difficulties arising within a limited period of time. In the words of Sir Cecil Carr, “this device is partly a draftsman’s insurance policy in case he has overlooked something’. Such a clause is nicknamed “Henry Vili clause" to indicate the element of executive autocracy. Henry VII was the King of England in the 16 century and during his rule, he could get all his difficulies "removed" by using the instrumentality of a weak and servile Parliament. Such a provision in a statute has been criticised by several authors, including Lord Hewart in his book, The New Despotism, as may 19 of the majority can government was made the sole judge Scanned with CamScannerDELEGATED LEGISLATION of whether any difficulty had arisen Secondly, it was also the sole judge hal A nd ne OF expedient to remove such a difficully irdly, it was a Sole authority to decide wi s consistent with tho Act ly ide whether its order was astly, such an order of th the a @Q 1e Jovi nt. was declared to be "final", government a The minority, however, took a tiberal view, obsi appear that legislative functions wer j Parliament had not sought to set clause was valid. 47 erving that it did not © delegated to the executive and that Up another legislature; therefore, the The view of the minority appears to have been appreciated — and followed — by subsequent decisions of the Supreme Court. For instance, in Gammon India Ltd. v. Union of india (AIR 1974 SC 960), the Supreme Court purported to merely distinguish Jalan Trading Co.'s case, but in effect, virtually overruled the majority view in that case. Thus, whereas a genuine “removal of difficulties” is acceptable, if the executive or a official functionary is given broad and sweeping powers under a purported exercise of such a clause, the provision would be struck down. Thus, in one case, the Chancellor of a University was given the power to regularise the services of any ineligible professor “on compassionate grounds”. When the exercise of such power by the Chancellor was challenged before the court, the government took the stand that this was only “to remove difficulties". Rejecting this argument, the Supreme Court quashed the Chancellor's order, remarking that a removal of difficulties clause can never assume such a wide and unfettered form. (Patna University v. Amita Tiwari, AIR 1997 SC 3456) The courts do allow the executive to “slightly tinker with the Act to found off angularities and smoothen the joints or to remove minor obscurities to make it workable. But, it cannot change or disfigure the basic Structure of the Act. In no case can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act’. (Madeva Upendra Sinai v. Union of India, AIR 1975 SC 809) Commenting on the Henry Vill clause, the Committee of Ministers’ Powers (in England) strongly criticized a wide and sweeping “removal of difficulties” clause, observing that it would be a dangerous practice to allow the executive to change an Act of Parliament. In its recommendations, the Said Committee was pleased to observe as follows: “The use of the so-called ‘Henry VIII clause’ conferring power on a Minister to modify the provisions of Acts of Parliament should be abandoned in all but most exceptional cases and should not be Permitted by Parliament except upon special grounds stated in a ministerial memorandum to the Bill. Henry Vill clause should never be Used except for the sole purpose of bringing the Act into operation but Subject to the limit of one year.” Scanned with CamScannerMCQ No. 25 What is the doctrine of exce- ssive delegation? (2 marks) M.U. Nov, 2012 Apr. 2014 48 ADMINISTRATIVE LAW ll. FUNCTIONS WHICH CANNOT BE DELEGATED Although delegation of its functions and powers by the legislature is valid in the above cases, there are other functions and powers which cannot be delegated, namely the following: (a) Essential legislative functions It is the duty of the legislature to legislate — and this essential function of the legislature cannot be passed on to the executive. Although the Constitution of India contains no express bar in this regard, the courts have taken the view that the legislative policy must be laid down by Parliament itself and this power cannot be delegated to the executive. In other words, Parliament cannot create a parallel legislature. Whenever a question arises as to whether there is excessive delegation or not, the following three principles are to be kept in mind: 1. Essential legislative functions cannot be delegated. In other words, determination of legislative policy cannot be delegated. Keeping in mind the complexities of modern administration, it should be accepted that it is not possible for the legislature to provide for every detail and minute possibility. Certain functions, therefore, need to be delegated, and such delegation cannot be called excessive delegation - provided the legislature lays down the legislative policy. 3. If some power is conferred on the executive in a manner that is lawful and permissible, such legislation cannot amount to excessive delegation, merely on the ground that the legislature itself could have made more detailed provisions. (b) Repeal of a law The power to repeal a law is an essential legislative function which cannot be delegated to the executive. Thus, if an Act were to contain a provision under which the government had the power to repeal the Act, such a provision would be ultra vires and void. (c) Unlimited power to modify a statute As seen earlier, an Act may allow the executive to modify the Act before applying it to certain other territories. The legislature cannot, however, empower the executive to modify any Act as it pleases, that is, an unlimited power to modify a statute (which is an essential legislative function) cannot be delegated. (¢) Exemption What is stated with regard to modification (above) applies with equal force to exemption. The legislature cannot delegate an unlimited power on the executive to exempt any person whatsoever from the operation of a statute. (e) Removal of difficulties Whereas a narrow form of “removal of difficulties" clause is valid, if the same assumes the proportions of a “Henry VIII clause”, it is liable to be struck down. (This has already been discussed above at length.) Scanned with CamScannerDELEGATED LEGISLATION ao) O} Retrospective operation Whether or not to give a retrospective eff i i fect to a statute is a privilege of the legislature ~ and this essential function cannot be dolegated. Thus, the executive cannot be vested with a power to treat a statute as retrospective if it deems it fit or expedient to do so. (a) Adoption of future laws As seen earlier, in India, the legislature of a State m: | ' ‘ay be empowered to adopt and apply in its State, a law in force in another State. However, this principle cannot be extended to laws which may be passed in the future, as this is essentially a legislative function which cannot be delegated. (h) Imposition of a tax The power of imposing a tax is necessarily a legislative function. Hence, this power cannot be delegated to the executive. Art. 265 of the Constitution of India clearly provides that no tax can be levied or collected save by authority of law — and ‘law’ can be enacted only by the legislature, and not by the executive. () Ousting the jurisdiction of the courts The enactment of a provision laying down that courts shall not have jurisdiction in a particular matter is a purely legislative function — and cannot, therefore, be delegated to the executive. () Penalties and offences Providing that a particular act or omission shall amount to an offence is essentially a legislative function, and therefore, cannot be delegated However, as seen earlier, the executive can be empowered to prescribe the punishment for a particular violation of the provisions of an Act, subject to certain ceilings laid down by the Act itself, as for instance, in the case of the Electricity Act, 1910. F. CONDITIONAL LEGISLATION, SUB-DELEGATION AND ADMINISTRATIVE INSTRUCTIONS Conditional legislation The terms ‘conditional legislation’ and ‘contingent legislation’ cover cases where the legislature passes a law which is full and complete, but such law is to be brought into force by administrative authorities on the fulfilment of certain conditions or contingencies. In such cases, it is Parliament that enacts the law; only its coming into force is made to depend on subsequent events. Conditional legislation assumes three forms : (a) In the first type of conditional legislation, (seen above), an Act is passed by the legislature, but it does not come into force immediately. It is brought into force by the executive when certain conditions are satisfied. AL4 MQ No. 26 Write a short note on: Conditio- nal legislation. M.U. Apr. 2007 What is condi- tional legislation? (2 marks) MU. Apr. 2011 Nov. 2016 Dec. 2017 Apr. 2018 Scanned with CamScanner50 ADMINISTRATIVE LAW (b) In the second type, the Act is enforced immediately, but the administrative authorities are given the power to withdraw the operation of the Act in certain areas or in certain situations. A third type of conditional legislation is where the Act comes into force immediately, but administrative authorities are given the power to apply the Act to certain classes of persons, leaving other classes of persons outside the ambit of the Act. What is contingent Conditional legislation has been held to be a valid form of legislation, legislation? as is clear from several cases decided by the Supreme Court, two of which (marks) are briefly set out below. M.U.May 2019 In one case, an additional civil court was established by a State Act, with Pecuniary jurisdiction upto Rs. 10,000. However, the Act also authorised the State Government to raise this jurisdiction to Rs. 25,000. The Supreme Court upheld the validity of this conditional legislation, observing that it was the legislature that had decided on the higher monetary limit and the role of the executive was only to determine when such higher limit would take effect. (State of Bombay v. Narottamdas, AIR 1951 SC 69) In the other case, an Ordinance was promulgated for two years, but the Rajpramukh was empowered to issue a notification, extending its life beyond this period. When such a notification was issued, the same was challenged as being invalid. The Supreme Court held that this was a valid act of conditional legislation. (Sardar Inder Singh v. State of Rajasthan, AIR 1987 SC 510) Sub-delegation What is sub- ___ Sub-delegation takes place when an Act confers some legislative power delegation? (2 on the executive and the executive, in turn, delegates the same power to marks) a subordinate person, authority or agency. Thus, the Essential Commodities MU. Apr. 2012 Act, 1955, empowers the Central Government to make rules for the Apr. 2015 enfor cement of the Act. This may be called first-degree delegation. The Jan.2019 Act also empowers the Central Government to di n lelegate this power to state governments (second degree delegation). Now, if this Power is delegated by a state government to an agency of the state government, this can be said to be third-degree delegation, Two arguments have generally been advanced in favour of sub- delegation. Firstly, it is contended that a Power of delegation necessarily carries with it the power of further delegation, Secondly, it is argued that Sub-delegation is ancillary to delegation, and if it were hot to be cylowed it would subvert the authorily of the legislature which mace the delegation. yn one case, an Act provided that eviction suits against tenants could be filed only with the permission of a District Magistrate cron canner authorised by him, The Distict Magistrate passed an order archers an Additional District Magistrate to exercise this power, and this de Ci ration Was held by the Supreme Court to be valid. (Central Talkie ee ot ag Prasad, AIR 1961 SC 606) es Lidl vss Dwal © Scanned with CamScannerDELEGATED LEGISLATION 5 another. (Barium Chemicals Ltd. v. Co. Law Board, AIR 1967 SC 295) As observed in an English case, ordinary legislation is twice blessed, as it passes through both the Houses of Parliament. However, sub- delegation is four times cursed, as firstly, it has not been considered by either House of Parliament; secondly, it is generally unpublished; thirdly, it is a jumble of legislative and adminis e trative provisions; and lastly, it may be expressed by a relatively minor officer in the language of administrative correspondence rather than in the clear and precise language of a statute. (Patchett v. Leathem, (1949) 65 LTR 69) Administrative instructions Administrative authorities sometimes issue administrative instructions and directions for clarifying a doubtful point in an Act or in rules or regulations made under an Act or for announcing an exemption or concession in favour of certain persons or classes of persons. The Supreme Court has observed that such orders do not have the force of law and no right arises from such orders. (Raman & Raman v. State of Madras, AIR 1959 SC 694) In one case, the question before the court was whether the PWD Code (which contained guidelines issued by a higher authority to a lower authority in the Public Works Department) conferred any right on an individual who had submitted a tender to the PWD. Answering the question in the negative, it was held that the Code was merely a set of administrative instructions which defined the scope of the executive power; it did not confer any right on a third party. (G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753) However, this is not a universal rule, and in a given case and in the background of its facts and circumstances, it is possible that these types of administrative orders do confer rights and impose duties. In such cases, if the non-observance of such a rule or a nolification results in discrimination Or arbitrariness, the affected party can seek redress from an appropriate Court. (Union of India v. Anglo-Afghan Agencies, AIR 1968 SC 718) Again, even though administrative instructions do not have the force of law, nevertheless, the courts can take them into consideration in certain circumstances. In one case, a Grant-in-Code contained rules laying down Certain conditions on the fulfillment whereof schools in Gujarat would be entitled to get grants from the state government. Although these rules were held to be executive instructions, the court held that they did create an equitable tight in favour of a school that satisfied all the prescribed Conditions. (Amratial v. State, AIR 1972 Guj 260) Scanned with CamScannerWhat is delegated legislation ? Explain delegated ‘egislation with ‘efernece to ‘eading cases. M.U. Nov. 2008 52 ADMINISTRATIVE LAW G. CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION As to what powers and functions of the legislature can and cannot be delegated to the executive has been discussed above. The question of 'egality or constitutional validity of delegated legislation has come up betore the Supreme Court in several cases, the most important of which are summarised below. The first case decided by the Supreme Court on this point is Re. Delhi Laws Act, 1912 (AIR 1951 SC 332). The President of India made a reference to the Supreme Court, which was heard by a Bench of seven Judges, each of whom (unfortunately) wrote a separate opinion. The basis Guestion raised before the court was the validity of the Part C States (Laws) Act, 1950. This Act authorised the Central Government to extend any Act in force in a Part A State to any Part C State with such modifications and restrictions as it thought fit. While doing so, the Central Government could also repeal or amend any corresponding State law which was in loroe in that Part C State. Although there was a “cleavage of judicial opinion’ in this case, the majority of the Judges held thal the provision was valid to a limited extent was observed that the Act could not authorise the executive to repeal a law already in force in a Part C State. Secondly, by exercising the power ment could not change the legislative Policy. Thus, in this landmark decision, the Supreme Court put its stamp of approval over delegated legislation and at the same time. it laid dom, its permissible limits. The fact that all the seven learned Judges decided to write their individual opinions has made it diffi of other cases”. (Kathi Raning SC 123) the face of the Act, namely, to fix minimum i wages to avoid exploitation of labour. (Edward Mills Lid. v. State of Aime r, AIR 1955 SC 25) Scanned with CamScannerDELEGATED LEGISLATION 53 In 1360. the Supreme Court struck down a provision in the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954, as ultra vires. $. 3 of this Act lays down a list of diseases for which advertisements are prohibited and the Act gave power to the Central Government to expand this list by adding any other disease in the list. This delegation was held by the court to be invalid, as no principles, standards or criteria were laid down in the Act for such additions, Such a power was held to be uncontrolled and unguided, and therefore, not valid. (Hamdard Dawakhana v. Union of India, AIR 1960 SC 554) In Harishankar Bagla v. The State of M.P. (AIR 1954 SC 465), Mr. Bagla was detained for carrying cloth without a permit. The relevant provisions of the Act had conferred the power on the Central Government to regulate the production, storage, transport, disposal, etc. inter alia of cotton textiles by issue of a licence or permit (which Mr. Bagla did not possess). Ruling against the petitioner, the Supreme Court held that since the legislative principle was clearly laid down in the parent Act, the delegation was valid. In one case, a central Act provided that if a declaration was made under the provisions of the Act, the Central Government would have the power to detain persons suspected of having committed an offence, without taking recourse to judicial proceedings. This provision was challenged before the Supreme Court as being violative of Art. 14 of the Constitution, as the discretion conferred on the Central Government was absolute and arbitrary. Rejecting this argument, the Supreme Court held that certain basic principles had to be satisfied before a person could be detained and the law could not be tested on the presumption that the discretion conferred on the Central Government might or could be exercised in a discriminatory manner. (Amrith Singh v. Union of India, AIR 1980 SC 1882) In an interesting case, a rule made by the Bar Council of Maharashtra Under a power conferred upon it by the parent Act was challenged before the Supreme Court. This rule laid down that if a person was engaged in any other occupation, he would be disqualified from being enrolled as an advocate. The petitioner, who was a doctor, challenged this rule on the Ground of excessive delegation of legislative function. Rejecting this Contention, the Supreme Court held that the rule effectuated the object, Purpose and scheme of the Act, and was therefore valid. (Nansraj v. Bar Council of Maharashtra, AIR 1996 SC 1708) In another case, a rule made by the Bar Council of India was Challenged before the Bombay High Court. The rule provided that no Student of law could simultaneously pursue another professional course like that of a chartered accountant. It was held that the rule was discriminatory, Scanned with CamScannera. | 54 ADMINISTRATIVE LAW and therefore, violative of Art. 14 of the Constitution. If the rules allowed law students to take up employment, the court saw no reason why they were debarred from pursuing other professional courses. (Percy Pardivalla v. The Bar Council of India, AIR 1987 Bom 283) In L. M. Sundaram v. Director of Legal Studies (AIR 1981 Mad 198), the court upheld the validity of a rule made by the Bar Council of India Providing that a person enrolling for the 3-year course should have attended at least 60% of the classes conducted in each subject. In one case, under a rule made by an educational Board, a candidate Was allowed to apply for verification of his or her marks but could not ask for inspection or revaluation of the answer book. The High Court struck this down as being unreasonable. However, the Supreme Court, in appeal, upheld it, observing that it was for the Board to lay down the rules regarding verification, inspection and revaluation of answer books of a candidate. In another case, the U. P. Secondary Services Commission was authorised by an Act to lay down the guidelines for recruitment of teachers. When this provision was challenged on the ground of excessive delegation of an essential legislative function, the Supreme Court rejected this argument and held the provision to be valid. The Supreme Court observed that the Commission was a body of experts and could be entrusted with the duty of selecting teachers. (Kiran Gupta v. State of U. P., AIR 2000 SC 3299) In yet another case, the State Government was authorised to refuse to register documents which were “opposed to public policy”. Acting under this power, the State Government issued a Notification declaring the registration of several classes of documents as being opposed to public policy. The Supreme Court quashed the Notification, observing that deciding on public policy is a function which is essentially legislative and such a function cannot be delegated to the executive. (State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77) Under well-established principles of interpretation of statutes, there is @ presumption (though rebuttable) in favour of the constitutional validity of an Act passed by Parliament or a State Legislature. The Supreme Court has held that this Presumption also extends to delegated legislation. (Bombay Dyeing & Mig. Co. Lid. v. Bombay Environmental Action Group. AIR 2006 SC 1489) The position in England 'n England, the question of constitutional validity of delegated legislation does not assume much 'mportance, as Parliament is supreme and can delegate any power to administrative authorities. Scanned with CamScannerDELEGATED. LEGISLATION 55 Ton basic postulates (oF principles) of delegated legislation On analysing several decisions handed down by the Supreme Court, it can be seen that the following ten Principles have been well-established in India with regard to delegated legistation. These principles apply to all forms of delegated legislation, be it subordinate legislation, sub-delegated tegistation, supplementary legislation, conditional legislation, eta These ten basic postulates may be summarised as under: 1, The function of making laws has been conferred by the Constitution of India on the central and state legislatures. Therefore, the essential legislative function cannot be delegated to the executive or even to another legislature. (“Essential legislative function” means laying down the legislative policy.) 2. This being so, the legislature cannot also create a parallel legislature and delegate essential legislative functions to it. 3. The legislature cannot likewise abdicate or destroy its own legislative power. 4. Once the legislature lays down the essential legislative policy, it can delegate ancillary and subordinate powers necessary for carrying out such legislative policy to the executive. 5. Whether or not a legislature has performed its essential legislative function depends on the facts and circumstances of each case. It is neither possible nor advisable to lay down a set of rules to be applied to find out if it has done so in a given case. 6. The legislative policy may be express or implied. It may be laid down at length in the statute or it may be expressed in a few words. It may also be reflected in a statute in its Preamble or title or scheme — or even in the Statement of Objects and Reasons. 7. The court can examine as to who is the authority to which such delegation has been made. However, delegated legislation cannot be upheld only on the basis of the dignity or status of the delegate. 8. If delegation by the legislature is excessive or unwarranted, it does not become valid only because it has provided safeguards against the abuse or misuse of the delegated power. 8. Delegated legislation will be declared ultra vires if it goes beyond the legislative policy and standards of the parent Act. . The courts must interpret every statute in a fair, general and liberal manner. However, if the court comes across arbitrary power conferred by a statute on the executive, it becomes the paramount duty of the court to strike it down. Ss Scanned with CamScannerMCQ No. 28 “Delegated logi- slation is a necessary evil." Discuss. M.U. Nov. 2011 Write a short note on: Legislative control of dele- gated legislation. M.U. Apr. 2011 Nov. 2012 “em 56 ADMINISTRATIVE LAW H. CONTROL OVER DELEGATED LEGISLATION However strong the crusade against delegated legislation might have been in the past, delegated legislation is today an accepted fact of political life. In countries like England and India, it has established itself as a phenomenon which can be discussed but cannot be denied. Even the USA, Which professes to follow the theory of Separation of Powers in a strict form, delegated legislation has come to stay. If delegated legislation has become a necessary evil, strict control over the delegate is equally necessary. One cannot deny the inherent dangers that lurk when the executive takes over some legislative functions. The possibility of abuse of such powers by the executive is always present, and therefore, the basic thrust of administrative law today is how the executive needs to be Monitored and how abuse and misuse of delegated power needs to be Prevented and controlled As observed by the Committee on Ministers’ Powers, since risks of abuse are incidental (-and sometimes inherent-), in delegated legislation, strong safeguards are necessary if a system of government is to benefit from its multifarious advantages without suffering from its inherent dangers. Control over delegated legislation takes two forms: 1. Parliamentary (ot legislative) control over delegated legislation 2. Judicial control over delegated legislation. 1. PARLIAMENTARY (OR LEGISLATIVE) CONTROL OVER DELEGATED LEGISLATION In the constitutional set-up of a country like India, it is the duty of the legislature to legislate. If, for good reasons, the legislature deems it fit to delegate some legislative power to the executive, it becomes its obligation to ensure that the agent (that is, the executive) exercises such power in a fit and proper manner, just as any principal would supervise and control the actual exercise of his duties by an agent. It is thus the paramount duty of the legislature to ensure that the delegated power is not exercised in any arbitrary,” objectionable, abusive or unwarranted manner. Such legislative control over the executive can broadly be classified as under: Legislative Control L £ L |, Pre-enactment control Il, Post-enactment control : 1. Laying on the table 2. Scrutiny Committees Scanned with CamScannerDELEGATED LEGISLATION 57 |, Pre-enactment control In England, with a view to i Bill is passed, th enabling MPs to exercise initial control even petore a the Rule of Procedure A ir f a Bill to be passed in the House of Commons involves itive ct ieislative powers, it should be accompanied by x ro oS clegation of the proposal with special reference 10 the scone of the eae crPlaining whether such delegation is normal or is casera ire tintenabing : in nature. This enables the MPs (in theory, at least) to examine su i i te before the Bilis passed, ich delegation from all possible In India, there is no such statutory requirement, and given the level and quality of debates in Parliament, pre-enactment control of delegated legislation cannot be expected to serve any useful purpose in the Indian context II, Post-enactment control 1. Laying on the table (Placing before Parliament) When the legislature confers on the government the power to make ules, regulations, efc., it generally provides that such rules, regulations, etc. should be placed before the Parliament within a specified time. This has a dual benefit. Firstly, the Parliament comes to know what rules or regulations have been made by the executive, and secondly, it gives an opportunity to Parliament to question or disapprove the rules or regulations which are made or are about to be made. This has been considered to be an effective ‘safety valve’ through which the legislature exercises supervision, check and control over the executive in the matter of delegated legislation. Broadly speaking, there are five ways in which rules, regulations, efc. made by the executive are “laid on the table": (i) The statute may empower the executive to frame rules, which become operational immediately. However, they are required to be laid before the legislature, so that the latter is informed about their content. As is apparent, this is a rather weak form of control over delegated legislation. (i) Often, the statute allows the rules to come into effect as soon as they are framed — with a further proviso that the rules would cease to operate if disapproved by the legislature within a given time, as for instance, a period of thirly days. This is perhaps the most commonly invoked form of legislative control and Is also referred to as the negative resolution procedure. (ii) In yet another form of the negative resolution procedure, ihe statute may provide that the rules are to be placed before the oss brie but that they shall not become effective until a stipulated period of time has expired. Write a short note on: Parliamentary control over dele- gated legislation. M.U. Apr. 2009 ‘Apr. 2017 Apr. 2018 What is delegated logislation? Exp- lain parliamentary control over dele- gated legislation. MU, Apr. 2013, Dec. 2017 Dec. 2019 Scanned with CamScannerState the func- tions of Scrutiny Committee. (2 marks) M.U. Nov. 2016 ed 58 ADMINISTRATIVE LAW (iv) A statute may also provide that a draft of the rules framed by the executive is to be placed before the legislature and that the rules will not become effective until the legislature approves them. This is known as the positive resolution procedure and gives the legislature stringent and effective control over the executive. (v) When prompt implementation of such rules is desired, it may be provided that the rules shall be placed before the legislature as soon as they are made and that they require affirmative approval of the legislature as a condition for their continuance. This form seeks to ensure prompt operation combined with strict parliamentary supervision. In India, there is no statutory provision or constitutional mandate governing laying of rules before Parliament. However, most statutes require that the rules should be published in the Official Gazette and also placed before both Houses of Parliament, which may decide to modify - or even annul — them. The next question to be considered is whether such a provision in a Statute, that is, one providing for laying before the house is mandatory - or merely directory. The answer to this question can be given only after examining the scheme of the statute in question, the language used by it and the consequences of non-observation of the legislative mandate. Thus, the answer would depend on the facts of each case. In fact, the Supreme Court has gone to the length of laying down that the use of the word ‘shall’ is not conclusive in such cases and that the intention of the legislature is more important. (Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149) 2. Scrutiny Committees Laying on the table (discussed above) is not always effective, as members of the legislature often have no time or expertise to study and scrutinise the rules framed by the executive. This led to the establishment of Scrutiny Committees whose function is to scrutinise the delegated legislation and file a report before the legislature. As once observed. such committees “act as watch-dogs which bark and arouse their mastet from slumber when they find that an invasion has taken place on the premises”. In England, the Select Committee on Statutory Instructions Was established by the House of Commons in 1944. In India, there are ‘0 such committees, the Lok Sabha Committee on Subordinate Legislation ar the Rajya Sabha Committee on Subordinate Legislation. Both the Committees consist of 15 members each. Similar committees have als? been set up at the state level. These committees cannot consider th? Scanned with CamScannerDELEGATED LEGISLATION 59 yestion of policy or the merit of the rulos He committees can examine — Tules mado by tho delegate, Howaver, whether the rules are ires . we ee intra vires the Constitution of India and the emiteey aa Contain any matter which, in the opinion of the aH . ee ; '0 have been dealt with by the legislature itself; whether such rules bar the jurisdicti : indicat {he jurisdiction of the courts, directly or whether there appears to have been any unjustified delay either in publication of the rules or in laying them before the legislature; whether, for any reason, the form or purpose of the rules calls for further elucidation or explanation, Recommendations of the Committee on Subordinate Legislation The Committee on Subordinate Legislation set up by the Government of India has made several suggestions and recommendations on control of delegated legislation, some of which are as follows: No tax should be allowed to be imposed by rules, regulations, etc. The language of the rules should be simple and clear. All ambiguities are strictly to be avoided. - Rules should not be given a retrospe power is clearly spelt out in the parent Act. Discriminatory rules should not be made by the executive. Rules made by the executive should not go beyond the rule-making y power conferred on it by the parent Act. Rules should be framed by the executive as soon as possible, and in any case, within six months from the date of commencement of ive effect — unless such a the parent Act. [Despite this recommendation, the rules have not been framed at all or delay, as for instance, in the case of the Central Wakfs Act, 1995, where the rules were framed after more than two and a half years.) ¢ should be laid before the legislature - Rules framed by the executiv nefore as expeditiously as possible, and in cases of inordinate delay, an explanatory note should be furnished by the executive, Whenever possible, the rules must contain short titles, explanatory notes and references to earlier amendments — So that the rules may be properly understood. - ; In all cases, sufficient publicity should be given to the rules, Tegulations, bye-laws, orders, ele. ere are glaring instances where have been framed after a long Scanned with CamScannerMCQ No. 29 Define delegated legislation and discuss the judicial control over dele- gated legislation. M.U, Apr. 2009 Nov. 2010 Apr. 2012 Apr. 2014 Apr. 2015 Apr. 2018 Dec. 2019 Examine the grounds for judicial control Delegated Legisla- tion, M.U. Jan. 2019 What is substan- tive ultra vires? (2 marks) M.U. Apr. 2012 Nov. 2014 Nov. 2016 Dec. 2019 MCQ No. 30 60 ADMINISTRATIVE LAW Conclusion History has shown that parliamentary control over delegated legislation has generally been weak — and often, ineffective. As Lloyd George once observed (with reference to the English Parliament), “Parliament has really no control over the executive; it is a pure fiction." Commenting in the same vein, Prof. Muir has observed as under: “There is no country in north-western Europe in which the control exercised by Parliament over the government over legislation, taxation and administration is more shadowy and unreal than in Britain.” 2, JUDICIAL CONTROL OVER DELEGATED LEGISLATION Judicial control over delegated legislation is an effective post-enactment contro! and plays an important role in a country like India, where courts have the power to strike down both legislative enactments and executive action on the ground of ultra vires. The expression ‘ultra vires' means beyond the capacity or power of the person or authority who has done a particular act. Thus, an act is said to be ultra vires when it is beyond the authority or jurisdiction of the person who has done it. However, this does not necessarily mean than such an act is illegal. It may or may not be illegal; it is only an act done in excess of the power possessed by the person or authority. The question is about the competency of the person to do that act - and not whether such an act is legal or not. The effect of an ultra vires act is that it has no legal effect whatsoever; it is a nullity in the eyes of law. No plea of estoppel or acquiescence or waiver can be raised to validate an ultra vires act. Likewise, no length of time can give it any validity. As observed by the Supreme Court. “If a rule made by a rule-making authority is outside the scope of its power, it is void, and it is not at all relevant that its validity has not been questioned for a long period of time. If a rule is void, it remains void — whether it has been acquiesced or not.” (Lohia Machines Ltd. v. Union of India, AIR 1985 SC 421) The validity of delegated legislation is examined by the courts from fwo angles, namely,- - the angle of substantive ultra vires; and - the angle of procedural ultra vires. Substantive ultra vires Substantive ultra vires means that the delegated legislation goes beyond the scope of the authority conferred on the delegate by the parent Act or that it violates some provision of the Constitution of India. AS explained by Schwartz in the simplest possible language, “If an agency acts within the statutory limits (intra vires), the action is valid; if it acts outside it (ultra vires), it is invalid.” Scanned with CamScannerDELEGATED LEGISLATION 61 A ei i case-law shows that the Supreme Court has struck down delegated legislation on the ground of substantive ultra vires in the following ten cases : (a) When the parent Act is unconstitutional (b) When the parent Act delegates an essential legislative function {c) When the delegated legislation is inconsistent with the parent Act (d) When the delegated legislation is inconsistent with general law (e) When the delegated legislation is unconstitutional (f) When the delegated legislation is unreasonable (g) When the delegated legislation is mala fide (h) When the delegated legislation amounts to sub-delegation () When judicial review has been excluded () When the delegated legislation is given a retrospective effect. (a) When the parent Act is unconstitutional When the parent Act itself is unconstitutional, any delegated legislation made under that Act is equally unconstitutional and will be struck down by the court. Thus, in one case, the parent Act authorised the Deputy Commissioner to prohibit the manufacture of bidis in some areas during certain periods. When the Deputy Commissioner passed such an order, it was held that the parent Act was unconstitutional as it violated Art. 19(1)(g) of the Constitution which confers a fundamental right to carry on any ‘occupation, trade or business. The court, therefore, struck down the order passed by the Deputy Commissioner under the Act. (Chintamanrao v. State of MP., AIR 1951 SC 118) (b) When the parent Act delegates an essential legislative function As seen above, no legislature in India can create a parallel legislature. So, if any essential legislative function is delegated, the same will be struck down. (c) When the delegated legislation is inconsistent with the parent Act When a rule-making power is conferred by the parent Act, the concerned authority cannot travel beyond the scope of the Act. No rule or regulation can be framed in a manner that is inconsistent with or repugnant to the provisions of the parent Act. Thus, where an authority was empowered to make rules for ensuring the safety of passengers traveling by a ferry, and a rule was made Prohibiting the operation of private ferries, it was held that the rule was Outside the scope of the delegated power, and therefore, ultra vires the Parent Act and void, (Chandra Bali v R., AIR 1952 All 795) Again, where a District Board was authorised to make bye-laws for Maintaining the health, safety and convenience of persons living in a MCQ No. 31 White a short note on: Doctrine of ultra vires. M.U. Nov. 2007 What is the doctrine of ultra vires? (2 marks) MU. Nov. 2010 Nov. 2011 Apr. 2013 Scanned with CamScannera | 62 ADMINISTRATIVE LAW i istric ard framed a bye-law prohibiting the holdin, parc athe same was siruck down as being ultra vires the See at delegation under the parent Act. (Tahir Hussain v. District Boarg, Muzatfarnagar, AIR 1954 SC 630) 5 (d) When the delegated legislation is inconsistent “in raion legislation is inconsistent with the general law or the law of the land hv be struck down, Thus, in England, a regulation framed under a statute provided that a landlord could not approach a court of law without the prior consent of the Minister-in-charge, the regulation was struck down because it deprived the King's subjects of their basic right to seek justice from the King's courts. (Chester v. Bateson, (1920) 1 KB 829) In India, a rule framed by the Bar Council prohibiting a person from enrolling as an advocate if he had completed forty-five years of age was held to be invalid. (Indian Council of Legal Aid & Advice v. Bar Council of India, AIR 1955 SC 691) (e) When the delegated legislation is unconstitutional If delegated legislation contravenes a Constitutional provision, as for instance, Art. 14 or Art. 19, it will be struck down as invalid. This is possible even in cases where the parent Act is Constitutional and the delegated legislation is consistent with the Parent Act. . invalid. (D. S. Nakara v. Union of Inaia, AIR 1983 SC 130) Likewise, a regulation frame the services of an air hostes: as arbitrary, Constitution of sd by Air India Providing for termination of 'S on her becoming pregnant was struck down vrgasonable and violative of Arts. 14 and 18 of the India. (Air india v. Nergesh Meerza, AIR 198) SC 1829) (1) When the delegated legistation is unreasonable Delegated legislation can also be declared ultra vires on the ground of unreasonableness. Thus, in England, a by ibiti ic i » a bye-law prohibiti Street, except under a special licence gr “he Maya ui i ay p fanted by the May k down as being unreasonable. (Munro v. Watson, 1887 ae 1366) = an air hostess on her min pregnant or a rule framed by the Bar Council barring enrolment of 3 peor wl "0 ' as Sompbted forty-five years of age. (See Air india v. Nergesh Meerza nd Indian Council of Legal Aid & Advice v 8ar Council of india, above.) However, requiring compulsory wear , aring of hel i r wheelers has been held not to be arbitrary or umes ey avers otc | ¥ Union of india, AIR 1988 SC 430) sSonable. (Ajay Scanned with CamScannerDELEGATED LEGISLATION 63 (q) When the delegated legistation Is mala tide Delegated legislation will be has acted mala fide or in bad {, AIR 1960 SC 430) (hn) When delegated legislation amounts to sub-delegation The maxim, Delegatus non potest dole i , gare, applies to delegated short note legislation also. Therefore, it the delegate chooses to sub-delegela the on'Dacmie nos power conferred on him by the parent Act to another person, such action potest delegare. will be struck down, unless the parent Act authorises him to’ de so either LU. Now 2011 expressly or by necessary implication, Apr. 2014 Thus, in one case, an Act had authorised the Minister to hear the parties and pass a final order in certain situations. The Minister delegated the function of hearing to his Secretary, who heard the parties and prepared a note for the Minister, who then passed the final order. The Minister's order was struck down by the court, which observed, “If one person hears and another decides, personal hearing becomes an empty formality.” (Gullapalli Nageswara Rao v, APSATC, AIR 1959 SC 308) In one American case, popularly known as the Hot Oil Case, the President of USA was authorised by the Congress to prohibit transfer of oil in inter-State commerce in excess of the quota fixed by the concerned State. The object of the Act containing such authorisation was “to encourage national industrial recovery" and, "to foster fair competition”. Observing that Congress had not laid down any legislative policy or standard, the US Supreme Court held, by a majority, that the delegation was invalid. (Panama Relining Co. v. Ryan, (1934) 293 US 388) (i) When judicial review is excluded What is the Even if an Act contains a provision that no court would have jurisdiction meaning of to question the legality of any action taken under the Act (as for instance, Ste ek — S. 170 of the Representation of People Act, 1951), this cannot affect the ° marks) iursdiction of the Supreme Court under Aris. 32 and 136 or of the High Taye oois Courts under Arts. 226 and 227 of the Constitution. () When delegated legislation is given a retrospective effect Subject to the provisions of the Constitution, a legislature can legislate Prospectively or retrospectively. However, delegated legislation cannot have 4 retrospective effect — unless such a power is conferred on the administrative authority by the parent Act. Thus, in one English case, a licence was issued by an administrative authority and it provided that it would operate retrospectively and cover things done before the licence was issued. The House of Lords held this to be invalid. (Howell v. Falmouth Boat Construction Lid., (1951) AC 837) The same principle has been applied in India, as for instance in State Of M.P. v. Tikamdas (AIR 1975 SC 1429) and Vijayalakshmi Rice Mills v. State of AP., (AIR 1976 SC 1471) Struck down if the rule-making authority faith. (Narendra Kumar v. Union of India, Scanned with CamScannerMCQ No. 32 What is proce- ural ultra vires? (2 marks) MU. Apr. 2014 Nov, 2015, 64 ADMINISTRATIVE LAW Procedural ultra vires Delegated legislation can also be struck down on the ground of procedural ultra vires, namely, that the procedure prescribed by the parent Act or by general law has not been followed. There are two requirements in this regard: (a) Publication, and (b) Consultation. {a) Publication If ignorance of the law is no excuse, it should be ensured that the members of the public have access to the law and an opportunity of knowing what the law is. As Lord Atkins once observed, there is no Presumption that everyone knows the law. Rather, the rule is that ignorance of the law is not an excuse — which is quite a different proposition When an Act is passed by Parliament, there is sufficient publicity by way of newspaper articles and editorials, public discussions, debates and even television coverage. However, delegated legislation does not generally get the same amount of publicity. A person affected by a rule or regulation often comes to know about it for the first time only when it is sought to be enforced against him. In England, the Statutory Instruments Act, 1946, makes provisions for Publication of delegated legislation, whereas in USA, the same result is achieved by the Federal Register Act, 1935. In india, although there is no Statutory provision for publication of delegated legislation, the courts have insisted on its publication as an essential requirement for its validity. However, once rules or regulations are published, they are deemed to have been brought to the notice of the concerned individuals — whether or not Such persons have, in fact, read them. he notification had been published, In India, publication is generally in the form of Publication in the Gazette en (or in the Gazette of a particular State, as the case may be. Once such publication takes place, the Piece of delegated legislati annot be challenged on the ground of ni ‘gi legislation cai ¢ 'on-publication. As observed Supreme Court, it is the established Practice that public: in the Steal Ge . : ation in the Official Gazette is the ordinary method of bringing a rule or s hale lesisla Q ‘ubordinate legislation to the eeu once Individual service of a piece of subordinale lation is neither necessary nor possible. (Un i sh Das Bhojraj, AIR 2000 SC 1102) (Goion of India v. Ganes! Scanned with CamScannerDELEGATED LEGISLATION 65 The Ganga Clause’ or the Omnibus Curative Clause statutes often Provide that no act done or Proceeding taken under the statute shall be called in question ‘merely on the ground of some defect or Fragularity of Such act or proceed ineguiarity © Proceeding, not affecting th 1S fet all, procedure is the hand-maid of justice sag ny 2f the case. Just as the holy water of the River Ganga takes a bath in this river, so also the Gan departures from the prescribed procedure, as long as the merits of the case have not been affected by such a deviation or departure. Thus, in one case, there was a defect in the publication of the regulations under the parent Act which contained a Ganga clause. The Supreme Court upheld the legislative device of a Ganga Clause, observing that the underlying object of such a device is to put beyond challenge, procedural defects which have not resulted in substantial prejudice or miscarriage of justice. (B. K. Srinivasan v. State of Karnataka, AIR 1987 SC 1059) (b) Consultation Yet another form of control over delegated legislation is the process of consultation with affected interests before the final draft of the rules or regulations is prepared. This is an effective form of control which benefits both the sides. On the one hand, the affected persons get an opportunity to make useful suggestions, and on the other, the administrative authorities can gather useful information and data from such persons. In India, there is no statutory requirement for consultation with affected interests - although some Acts do provide for such consultation, which assumes one of the following four forms: (a) Official consultations. - Under some statutes, the rule-making power is to be exercised after consultations with a named agency or authority or body of persons. Thus, the Central Government is empowered to make rules under the Banking Companies Act, 1949, only after consultations with the Reserve Bank of India. () Consultations with statutory bodies. - An Act may provide for exercise Of the rule-making power after consultations with a statutory body. Thus, under the Drugs Act, 1940, the Central Government is empowered to make rules only after consulting the Drugs Technical Advisory Board. © Consultations with advisory bodies. - Sometimes, prior consultations with an advisory body is required, as in the case of the Indian Mines Act, 1901, where Mining Boards have to be consulted before the Sovernment makes rules under the said Act. ) Draft rules to be prepared by affected interests. - Sometimes, as for ‘stance, under the Indian Mines Act, the owner of a mine is permitted L {0 draft the rules (regarding the operation, safety, efc. of the mine) and 5 Cleanses the sins of a person who iga clause cures all deviations and Scanned with CamScanneray 66 ADMINISTRATIVE LAW 6 for comments. Ultimately, such ibmit them to the Inspector of Minos rules are approved and published by the Central Government afte, consultations with all affected parties. _ i Consultations with affected interests infuses a democratic element into delegated legislation. has today become a very useful tec! nique which balances individual interests and administrative exigencies. As observed ty the Delhi High Court (in New India Industrial Corporation v. Union of India, AIR 1980 Delhi 277), — ; payors interests i s B ers with “Consultation of interests infuses the law-making power democratic norms, particularly in what is called ‘bureaucratic legislation’ Apart from this, it is an administrative necessity. Whether judicial review can be excluded : The Herschell Doctrine Sometimes, an Act makes an attempt to exclude judicial review of delegated legislation by providing (in the Act itself) that the rules and regulations made under the Act shall not be called in question in any cour, The fundamental question that needs to be answered is whether such a clause does have the effect of excluding judicial review of delegated legislation under that Act. The position in England This question has been answered by the English courts in the afimative. In a leading case (Patent Agents v. Lockwood, (1894) AC 347), Lord Herschel held that in such a case, the rules and Tegulations are deemed to be a part of the Act itself, and therefore, immune from challenge to the same extent as the Act itself. This Point of view is now also known as the Herschell Doctrine. However, the English courts have also cautioned that if the rule in question is ‘inconsistent with the parent Act, the Herschell Doctrine would not be applicable and the provisions of the Act would prevail, (Minister of Health v. King, (1931) AC 494) The position in India Although there have been conllicting jud he Herschell doctrine is applicable in India, itis to be teks that tere i a vital difference between Indian and English law in this respect. Whereas ih Partament S Subrome in England, the Constitution is paramount in nae Therelore, no law enacted by any legislature in India can take away the jurisdiction conferred by Arts, 30 and 136 of the Constitution on the Supreme Court or by Arts, 226 and 227 on various High Courts in India. e Scanned with CamScanner