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Introduction

As per Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power.

Montesquieu stated in the mid-eighteenth century,  “There would be an end of everything where the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of extracting law, that of executing the public resolutions and of trying the causes of individuals.” [1]

The separation of powers theory refers to three different structural classifications of political powers:

  • A single person should not be a member of more than one of the government’s three organs. Ministers, for instance, are not allowed to sit in Parliament.
  • One government body should not be allowed to meddle with another government body.
  • A government body should not perform a task that is given to another.

Not only is there functional overlapping in India, but there is also personal overlapping. The Supreme Court has the authority to declare legislation approved by the legislature and executive actions invalid if they contradict any constitutional provision or, in the case of legislative actions, any provision of the Constitution. Even Parliament’s power to modify the Constitution is susceptible to the Court’s scrutiny. The Court has the authority to make any amendment invalid if it affects the Constitution’s basic structure.[2] By means of Articles 103(1) and 217(3), the president, in whom the executive authority is vested, exercises law making power in the form of decrees, as well as judicial power. The legislature also has judicial powers I n situations of violation of the  privileges of the legislature, suspension of the President, and the dismissal of judges. “Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently, it can be very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.”

Facts and History of the Case

In the case of Re: Delhi Law Act[3], the Central Government was given the authority to abolish an existing law that was found to be ultra vires by an act.

To comprehend the situation, the Indian era might be divided into three phases. Pre-independence, post-independence, and post-constitution are the three periods.

The Privy Council in Queen v. Burrah[4] principally decided on the legitimacy of delegated legislation in the first stage, i.e. before independence. The act in question gave the Lt. General considerable powers (Act XXII of 1869). The power was to put the act into effect and to establish which laws applied, as well as to extend the scope of the Act’s applicability. The dispute before the Privy Council was whether the power conferred to Lt. General to extend the application of the Act was delegation of powers. The Privy Council stated that the Indian legislature is not an agent. It was also not meant to be a delegation against the High Court of Calcutta[5], but to have the legislature’s unlimited power and parliament’s power of the same kind. The court determined that the above-mentioned powers were only granted to Lt. General if certain circumstances were met. As a result, it was conditional legislation, as opposed to delegated law.

In addition, the court stated that, It is a general principle of law in India that any substantial delegation of legislative authority by the legislature of the country is void…” 

This case established substantive delegation, which indicates that if some duties are significant and null and void in India, delegation has to be conditional. The uncertainty was always there after several cases involving delegated legislation. Before the moot, it was debated whether the delegation of legislative power should be restricted, as it is in America, or unfettered, as it is in England, where a great deal of power can be delegated. Because the UK and the US had commonalities with India, the court was given the option of choosing either. Furthermore, the Indian Constitution is mute on the matter of delegated legislature, hence the constitution can be used as a foundation for the concerns.

Issues

  • Was section 7 of the Delhi Laws Act, 1912, or any of its provisions, and if so, under what way or to what amount, ultra vires the Legislature that enacted the Act?
  • Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of its provisions ultra vires the Legislature that approved the Act, and if so, in what way or to what extent?
  • Is section 2 of the Part C States (Laws) Act of 1950, or any of its provisions, ultra vires the Parliament, and if so, in what way or to what extent?

Decision

The decisions of the judges in this case influenced how the concept of delegation was seen in India. The Supreme Court held the following conclusion, on which the seven opinions were based:

  • The concept of “separation of powers” is not included in the Indian Constitution. The Indian parliament has never been seen as a proxy for anyone. As a result, the doctrine of “delegates non potest delegare” are does not apply.
  • By establishing a second authority, Parliament cannot totally shirk its responsibilities.
  • Auxiliary functions are the only ones that can be delegated.
  • There is a limit to how much power may be delegated. The legislature is unable to delegate its basic functions. Essential functions include establishing legal policy and turning that policy into legally enforceable rules of conduct.

Judicial Control over Delegated Legislation

In India, the delegated legislation can be questioned in court as unlawful, exorbitant, and unreasonable. It can be regulated by the judiciary on two bases: first, on the basis of substantive ultra vires, and secondly, on the basis of procedural ultra vires. The law of the executive must not be contradictory with the constitution or ultra vires the parent act from which it derives its ability to make law, according to the standards used by the court to declare it void and null. The Supreme Court and the High Court of India has been granted the authority to review delegated legislation, and they take an important role in managing it.

The following two layers of judicial control over delegated legislature are in place:

  • Objecting to the delegation as being unconstitutional
  • Exercising statutory authority improperly. 

Any delegated legislation that conflicts with the provisions providing Fundamental Rights will be revoked. If any Acts infringe basic rights, the rules, regulations, and by-laws enacted as a result will be null and void. The doctrine of ultra vires governs judicial oversight over delegated legislation in both India and the United States.

Cases that Demonstrate Judicial Control over Executives

Case of Chintaman Rao[6]: The Deputy Commissioner’s prohibition on making bidis during the agricultural season is a violation of Article 19(1)(g) of the Indian Constitution.

In Chandran v. R, it was determined that if the power of by-laws is vested in the hands of the Legislature, it has to be within the Legislature’s bounds, and if it surpasses the limit, the by-laws can be thrown away.

Criticism on Delegated Legislation

  • Delegated legislation causes overlap in functions since the delegated authority are given work to alter the legislation, which is the legislators’ responsibility.
  • It has been a point of contention as to whether or not the Legislature’s power has weakened with the emergence of delegated legislation.
  • It would be against the essence of democracy for unelected people to make much delegated legislation.
  • The Executive has infringed into the legislative domain by adopting rules and regulations after gaining too much power from the legislature.
  • Delegated legislation creates laws without a lot of debate. As a result, it may or may not be beneficial to the general population.
  • It goes against the prominent political scholar Montesquieu’s principle of separation of powers.

Conclusion

Rules of law enacted under the skilled professional of an Act of Parliament is referred to as delegated or subordinate legislation. Despite the fact that lawmaking is within the lawmaking body’s ability, it may delegate that capacity to other entities or people by a resolution. The Enabling Act is the resolution that delegated such authority. The Enabling Act establishes broad guidelines, whereas the delegated authority establishes specific guidelines.

The case was effective in accomplishing two goals: It legitimised the legislature’s delegation of legislative power to administrative bodies and put a limit on legislative delegation.

If Parliament’s control over delegated legislation in India is to be maintained, the role of Parliament’s advisory committees must be strengthened, and a new statute, such as the Statutory Instruments Act, must be created to accommodate uniform standards of laying and manufacturing. A specific authority body could supplement the board of trustees in order to make allocated enactment monitoring more effective. Aside from the various procedures stated above, steps should be taken to strengthen Parliament’s control over designated enactment. Despite the fact that there are no explicit provisions in the Indian Constitution allowing for the appointment of authoritative power, the legal pattern observed in regard to assigned enactment is consistent with the goals of the founding fathers of our Constitution, whose primary concern was the Constitution’s flexibility in response to changing needs of the time. If we want to ensure that the government’s delegated law powers aren’t abused, we will need to implement effective control mechanisms similar to those used in the United States, which India has yet to do.


References:

[1] Thakker.C.K., “Administrative Law”, (1992), Eastern Book Co., p. 31

[2] Keshavananda Bharati v. State of Kerala, (1972) 4 SCC 225

[3] In Re The Delhi Laws Act, 1951 AIR 332

[4]  Queen v. Burrah, 1878 3 AC 889.

[5] Empress v. Burah and Book Singh, ILR 3 Cal 64.

[6] Chintaman Rao and Ors. V. State of Madhya Pradesh, 1951 AIR 118


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