Legislation created by organs other than the legislature which have been given legislative authority is called “delegated legislation.” Salmond argues that the legislature can be either supreme or subordinate. And, that the subordinate power depends on the superior authority to continue and exist. Delegated legislation in India is also referred to as “sub-ordinated legislation”. This is because the statute granting it restricts the legislative authority of the body that creates it; as a result, the legislation is only effective within the parameters that the statute states out.
The court decided in Chief Settlement Commissioner v. Om Prakash, 1969 AIR 33, 1968 SCR (3) 655 that the executive branch’s legislative authority must come from the parent legislation and be used within the parameters set forth in that act.
An example of legislation that has been delegated to the central government is the Essential Commodities Act of 1955. This legislation gives the government the authority to designate any product as essential. On the other hand, “child legislation” refers to laws created by subordinate authorities utilizing the authority that has been granted to them.
The advantage of delegated legislation in India can be briefly enumerated as follows:
Parliament is under pressure since it is already overworked and unable to pass legislation on every issue. As a result, it frequently transfers power to lower-level authorities.
Changing legislation delegated to the parliament is a simpler and faster procedure than amending it at the national level.
Executives have the authority to experiment through delegated legislation. This allows them to enact laws, put them into effect for a while, and then withdraw them if they are not in the public interest or likely to contradict other laws. For instance, certain laws pertaining to road traffic may be put into place and then abolished if they are ineffective.
Delegated legislation in India is far more successful when executives are granted broad authority to deal with.
As civilization has advanced, things have grown more convoluted, technical, and complex; as a result, law requires an expert on every subject.
Delegated legislation is a control mechanism that should be used for a number of reasons, including the following:
It ensures responsibility and openness in the legislative process. Delegated legislation allows the executive branch or lower-level agencies significant power to carry out legislative actions without the legislature’s intervention.
These authorities have the potential to abuse their authority if there are insufficient checks and balances in place.
Control mechanisms act as precautions to guarantee that the delegated legislation does not infringe upon the rights and liberties of any person or deviate from its intended scope. The rule of law is maintained with the aid of this system.
1. Court supervision: This includes two tests, namely:
1) Substantive ultra vires
2) Procedural ultra vires
An “act that is beyond one’s power or authority” is the definition provided to “ultra vires”, as it is done by a person who does not possess the authority or power to do so.
A legislative act is considered to be ultra vires the constitution when it exceeds the authority granted to the legislature by the document. Similar to this, an act is considered ultra vires when it exceeds the power of delegated law; this is referred to as substantive ultra vires. The delegated law may be deemed invalid for substantive ultra vires under the following conditions:
Delegated legislation in India is unlawful or extra vires if the parent act that grants power to the subordinate authority is invalid in and of itself.
In the State of M.P. v. Chintamanrao case, 1951 SCR 759, the parent statute gave the Deputy Commissioner the authority to forbid the production of bidis in specific regions. According to the court, the deputy commissioner’s order issued under the act is extra vires, and the parent act itself violates Article 19 of the constitution by impairing the basic right to engage in any kind of trade, company, or activity.
The delegated legislation will be deemed illegal if the parent act or statute is constitutional but the delegated legislation in India goes beyond what is allowed by the constitution. The same ruling was made in the case of Air India vs. Nargesh Meerza 1981 AIR 1829, 1982 SCR (1) 438, where an Air India regulation stating that an air hostess’s employment would end upon her first pregnancy was found to be in violation of Article 14 of the Constitution.
A program that offered a greater pension to those retiring before a specific date and a reduced pension to those retiring after that date was introduced in the case of D.S. Nakara vs. Union of India, 1983 SCR (2) 165; this was delegated legislation in India.
It’s also crucial to remember that delegated laws will be void if they are in conflict with the parent act, even if both the parent act and the delegated legislation in India are constitutional.
The Indian Supreme Court ruled in Indian Express Newspaper Pvt. Ltd. v. Union of India (1985) that ‘unreasonableness’ is a subject of judicial review that may be used to assess whether delegated legislation is genuine.
A provision guaranteeing that the delegated legislation’s legitimacy won’t be contested in a court of law may be included in order to shield it from judicial examination. The term ‘ouster clause’ refers to this.
Since arbitrariness is covered by Article 14 of the Indian Constitution, any regulation that breaches it is unconstitutional. However, arbitrariness is not a basis for declaring subordinate law ultra vires or illegal.
As previously established, the maxim “Delegatus non potest delegate” states that no authority that has already been assigned may be further transferred unless the parent act specifically authorizes or approves such additional delegation.
Procedural ultra vires refers to when subordinate law disregards the procedure that the parent statute prescribes. The parent act may mandate that the delegated laws follow a certain process for developing regulations, such as consulting with specific entities or publishing draft rules, etc. Compliance with these procedural conditions is mandatory for the delegated law; failure to do so will render the regulation null and void. However, these formalities aren’t always necessary.
(1) CONSULTATION
(2) PUBLICATION
The consultation process is one of the mechanisms used by courts to monitor and oversee the exercise of legislative power by subordinate authorities. It serves as a protection against
the potential misuse of legislative authority. Consultation is vital for keeping the legislative process transparent, accountable, and inclusive. It contributes to the quality of delegated legislation in India by including a wide range of perspectives, areas of expertise, and experiences. By including stakeholders in the consultation process, legislators might identify potential issues, unanticipated consequences, and practical obstacles associated with proposed law.
Publication refers to the action of making something widely known, or making something public. The public must have access to the law and be given the chance to learn about it; thus, they must be made aware of delegated laws through publishing. In Harla vs. State of Rajasthan, 1951 AIR 467, 1952 SCR 110, the council approved legislation that was not made known to the general public. In this instance, the court ruled that the disclosure of legislation is vital.
Publications can be divided into two kinds, namely:
1) Previous Publication
2) Post Publication
1) Previous Publication
In this sort of publishing, rules are made available to the general public before they become final or relevant. The proposed rule’s draft will be published first, followed by the date it will go into effect, and any additional comments or recommendations will be considered.
2) Post Publication
“Ignorantia Juris non excusat” is a legal maxim which means that ignorance of law is not an excuse, after the law is made available for public.
In the case of State of Maharashtra vs. M.H George, 1964, German national Mayer Hans George was found guilty of violating Section 23A of the Foreign Exchange Regulations Act of 1947 by importing gold into India without the Reserve Bank of India’s consent. A notification dated November 8, 1962, was published in the Gazette of India, stating the same. The accused was sentenced to a year in jail. Customs officials determined that Mr. George was attempting to defraud the government by smuggling 34kgs of gold.
Therefore, control over delegated legislation in India is a critical instrument for ensuring the legislative process is legitimate and accountable. Delegated legislation, which delegates legislative authority to executive agencies, addresses many of the complexity and changing needs of modern governance.
However, efficient regulatory structures must be in place to protect against potential misuse or arbitrary use of authority. It is also assumed that delegation of power should be granted to trustworthy authorities, with the expectation that these authorities would not abuse their position. Control over delegated legislation is critical to maintaining the separation of powers, sustaining democratic values, and protecting individual rights. Governments may ensure that delegated legislation is accountable, transparent, and consistent with the foundations of democratic government by establishing robust institutions for parliamentary monitoring, judicial review, public participation, and clear regulations.
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