Montesquieu, a French scholar, propounded the theory of separation of powers. According to this theory, three organs (i.e.) the legislature, the executive and the judiciary should perform their functions independently and no organ should interfere in the work of the other organ. However, the Indian Constitution does not strictly follow this theory. According to the Indian Constitution, legislature has the power to make laws, executive is responsible for execution of law and judiciary has the power to solve disputes and to deliver justice. Due to increased legislative activities, it is becoming difficult for the legislature to legislate on every matter. Therefore, the concept of Delegated legislation has come up. Delegated legislation is a process where the executive authority is given the power by the legislature to make laws in order to implement and administer the requirements of the primary legislation.
Reasons for the growth of Delegated Legislation:
(i) Pressure on the Parliament
The newly evolved concept of welfare state has increased the pressure on parliament. The parliament does not have sufficient time to deal with a wide range of legislation effectively. Therefore, it only defines essential legislative principles and the rest of the work is done by the executive.
(ii) Technicality of the Matter
The Parliament finds it difficult to lay down details especially in certain fields of technical nature and therefore entrusts this task to the department and minister concerned.
(iii) Unforeseen Contingencies
Delegated legislation also helps to deal with unforeseen contingencies. It provides for a power of constant adoption to unknown future conditions without the necessity of amending the legislation.
(iv) Local Matters
Delegated legislation helps to deal with local matters. For eg. District Magistrate is given the power to make laws to maintain law and order in the district.
Delegated Legislation under Indian Constitution
The concept of delegated legislation is not mentioned under Indian Constitution but it can be understood by interpreting Article 321 of the Constitution. According to this article, Rajya Sabha can open a new branch of All India Service after getting 2/3 votes. According to this, some powers of legislature will be delegated to the recruiters of All India Service. One of the most important case law related to delegated legislation is:
D.S. Grewal vs The State of Punjab[1]
In this case, the constitutionality of All India Service Act, 1951[2] was challenged. D.S. Grewal was appointed to the All-India Service and posted to Punjab. He was Superintendent of Police of various districts. In 1957, he was appointed as Assistant Superintendent of Police. In 1958, he was posted to Dharamsala. After a few months, an action was taken against him under Rule 5 of All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee was set up which was led by Shri K.L. Bhudiraja. He filed a petition under Article 226 of the Indian Constitution before the Punjab High Court in which he challenged the constitutionality of the Act and legality of the enquiry against him.
The Supreme Court held that Article 312 of the Indian Constitution deals with power of delegated legislation. As the case was very serious therefore the petitioner can be removed or compulsory removed from his post by the government. Justice K.N. Wanchoo observed that “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.” The England Law allows the Parliament to delegate any amount of power without any restriction. Whereas, the position in America and India is different where the governments do not have unlimited power. They can delegate power only in a controlled manner with certain restrictions.
Controls of Delegated Legislation
Controls of Delegated legislation can be divided into 3 categories:
- Parliamentary Control
- Executive Control
- Judicial Control
Parliamentary Control of Delegated Legislation
In a democracy, it is the function of the legislature to legislate, but if it wants to delegate the power to the executive under certain circumstances, it is not only the right but the duty of the legislature to see how its agent (i.e.) Executive is working.
There are 2 stages in Parliamentary Control:
(a) Initial Stage
In the first stage, the legislature decides how much power is to be delegated to complete a task, and it is also checked that delegation of power is valid or not.
(b) Direct and Indirect Control
In the second stage, there are two things: (i) Direct Control & (ii) Indirect Control.
(i) Direct Control
Under this laying is a very important aspect. It basically means to place the rules made before the parliament. Laying is further divided into 3 categories:
- Simple Laying
In this type of laying, the rules come into effect as soon as they are placed before the parliament.
- Negative Laying
In this type of laying, the rules come into effect as soon as they are placed before the parliament but cease to have effect if they are rejected by the parliament within 40 days.
- Affirmative Laying
In this type of laying, the rules have no effect until they are approved by a resolution of both the houses of parliament.
(ii) Indirect Control
The parliament exercises this control through its committees. They are known as Lok Sabha committee and Rajya Sabha committee. The Lok Sabha committee consists of 15 members who are appointed by the Speaker of Lok Sabha for one year. The Rajya Sabha committee consists of 15 members who are appointed by the chairman of Rajya Sabha & the committee remains in force till the new committee is formed.
The main function of the committee is to see:
- Whether the rules are made in accordance with the general object of act.
- Whether it is retrospective in nature.
- Whether it involves expenditure from the consolidated fund of India etc.
Procedural or Executive Control of Delegated Legislation
Executive legislating under delegated legislation is not required to follow rigid procedure until the legislature makes it compulsory for the executive to follow the certain procedure. This is because following a rigid procedure will be time consuming and it defeats the purpose of delegated legislation. If the executive does not follow the procedure laid down by the legislature, then the rules made by the executive will become invalid. The following are the components of procedural control:
(i) Pre publication and consultation with expert authority
According to Section 23 of General Clause Act, 1897 it is mandatory that the rules made should be published in draft form in the Gazette of India. Objections and suggestions should be invited from the public and the objections and suggestions received should be considered by rule making authority.
(ii) Publication of delegated legislation
There is a well-known principle of law (i.e.) “ignorantia juris non excusat” (ignorance of law is not an excuse) but there is another equally important principle of law that the public should have access to the law of the land. It is very important that necessary steps are taken to publish the rules so that people know the rules.
(iii) Laying of rules
It basically means to place the rules made before the parliament. Laying is further divided into 3 categories:
- Simple Laying
In this type of laying, the rules come into effect as soon as they are placed before the parliament.
- Negative Laying
In this type of laying, the rules come into effect as soon as they are placed before the parliament but cease to have effect if they are rejected by the parliament within 40 days.
- Affirmative Laying
In this type of laying, the rules have no effect until they are approved by a resolution of both the houses of parliament.
Judicial Control of Delegated Legislation
Judicial review is one of the tools which is used by the judiciary to exercise control over delegated legislation. The courts have the power to see whether the power delegated is within the scope of the constitution. It can strike down the legislation if it finds it as arbitrary, unreasonable or unconstitutional. It has 2 components:
(i) Delegated legislation is ultra vires to the Constitution of India
There can be situations where parent act is in accordance with the Constitution of India but delegated legislation makes it ultra vires to the Constitution of India and violates its provisions.
(ii) Delegated legislation is ultra vires to the enabling act
There can be situations when the delegated legislation framed under the parent act is in excess power and the extent is not authorized by the parent act or the rules so framed are opposing the parent act.
Conclusion
The concept of delegated legislation is gaining a lot of importance these days as it helps to save the time of parliament. But at the same it is very important to keep a check on delegated legislation to ensure that there is no abuse of power. Judicial control will play an important role to ensure there is no misuse of power. Hence, if delegated legislation is utilized correctly, it can be an asset to the country.
[1] 1959 AIR 512
[2] https://legislative.gov.in/sites/default/files/A1951-61_0.pdf (Last Visited on 12th August, 2021 at 10:35 AM)
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