Read this essay to learn about:- 1. Introduction to Delegated Legislation 2. Parliamentary Control over Delegated Legislation in India 3. Committee on Subordinate Legislation.
Essay # 1. Introduction to Delegated Legislation:
There is considerable use of delegated legislation in India. However, statistics are not available to explain precisely the volume of such legislation. Statutory rules are not published in India unlike that of U.K. where the Statutory Instruments Act 1946 requires publication of such rules and orders.
Moreover, Indian Parliament unlike that of its counterpart in U.K. is a non-sovereign body. Its powers and privileges are defined in the Constitution. The constitutional provisions take precedence over the parliamentary enactments and set limits to the latter.
As such, the Acts passed by the Indian Parliament are challengeable in the courts of law. They must conform to the Constitution otherwise their provisions are liable to be declared null and void.
The Delegated Legislation may therefore be declared void under the following situations:
(a) The Enabling Act is ultra vires,
(b) The subordinate legislation violates the Constitution, and
(c) The subordinate legislation runs counter to the provision of the Enabling Act.
What are the limits of such delegation?—has been answered in Delhi Laws Case and other subsequent decisions of the Supreme Court. According to the majority decision of the Court, “the essential powers of legislation cannot be delegated” and they defined the essential legislative function as the determination or choice of the legislative policy.
Various other decisions of the courts in certain cases, viz., Ram Jawaya v. State of Punjab; Raj Narain Singh v. Chairman, P.A. Committee; Hari Shankar Bagla v. M.P. State; Hamdard Dawakhana v. Union of India, clearly brought out main principles governing delegation of legislative power in India.
The principles so deduced are:
(i) The legislature cannot delegate its essential legislative function to an outside authority in any case;
(ii) The essential legislative function comprises laying down the policy of the law and making it a binding rule of conduct;
(iii) When the essential legislative function of laying down the policy of law and providing guidance for implementing the policy has been performed by the legislature, there can be no constitutional bar against the delegation of subsidiary and ancillary power to an outside authority;
(iv) An act delegating legislative power to an outside authority without laying down the policy or standards of public policy will ipso facto be unconstitutional and hence invalid;
(v) It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper. The law court could take into account not only the text of the sections of the Act but also the statements in the Preamble of the Act;
(vi) Delegated legislation may assume any of the three forms, namely subordinate legislation, supplementary legislation and conditional legislation. Each one of these forms is subject to the same conditions, viz., and essentiality.
Essay # 2. Parliamentary Control over Delegated Legislation in India:
According to Rule 215 the Rules of Business of the Lok Sabha made a provision for the constitution of a committee on Subordinate Legislation “to scrutinize and report to the House whether the powers delegated by Parliament have been properly exercised within the framework of the statute delegating such power.”
It also necessitated the publication of all rules, regulations and bye-laws in the Gazette of India. Rule 71 further states that, “a Bill involving proposals for the delegation of legislative power shall further be accompanied by a memorandum explaining such proposals and drawing attention to their scope and stating also whether they are of normal or exceptional character.”
Rule 233 prescribes the powers of the Committee. It provides after each such order referred to in Rule 222 is laid before Parliament, the Committee shall in particular consider:
(a) Whether it is in accord with the general objects of the Act pursuant to which it is made.
(b) Whether it contains matters which in the opinion of the Committee should properly be dealt with in an Act of Parliament.
(c) Whether it contains imposition of taxation.
(d) Whether it directly or indirectly excludes the jurisdiction of the court.
(e) Whether it gives retrospective effect to any of the provisions in respect of which the Act does not expressly give any such power.
(f) Whether it involves expenditure from the Consolidated Fund or the Public Revenues.
(g) Whether it appears to make some unusual or unexpected use of the powers by the Act pursuant to which it is made.
(h) Whether it appears to have made unjustifiable delay in the publication or laying it before parliament.
(i) Whether for any reason its form or purport calls for any elucidation.
Rule 224 states, “If the committee is of the opinion that any order should be annulled wholly or in part or should be amended in any respect it shall report that opinion and the grounds thereof to the House within one month of the commencement of a session of Parliament after the promulgation of such orders or within such earlier or later period which a statute of a parliament may have fixed for any specified case.” Further, “if the committee is of the opinion that any other matter relating to any order should be brought to the notice of the House it may report that opinion and matter to the House.”
As per decision of the Supreme Court, the essential functions of the legislature cannot be delegated. For instance, the Indian Legislatures have not been authorized to delegate the following functions:
(i) The power to declare what the laws shall be in relation to any particular territory or locality.
(ii) The power to extend the duration or operation of an Act beyond the period mentioned in the Act.
(iii) The power to repeal or amend a law.
Essay # 3. Committee on Subordinate Legislation:
The Committee on Subordinate Legislation which was appointed in December, 1953 consisted of 15 members including the Chairman who are appointed by the Speaker annually. The Chairman happens to be an important member of the Opposition Party.
The Committee is responsible for evolving a uniform pattern of the terms of delegation incorporated in the Enabling Acts and improving the methods of publicity to the Rules.
The Committee has recommended to Parliament the observance of the following principles:
(a) All the Acts delegating legislative power should uniformly require the rules made under them to be laid before the Houses as soon as possible but not later than a week after publication in the Gazette.
(b) The laying of the rules before the Houses should in all cases be for a period of 30 days.
(c) The Enabling Acts should always provide expressly that the rules made under them shall be subjected to modification by Parliament.
(d) In exceptional cases, provision may be made for laying of the rules and regulations on the floor of the Houses, 30 days before the rules become operative.
There is no denying the fact that the Parliament has not uniformly followed all these principles. However, the committee has in its subsequent meetings acted on the principle that whether any rule is expressly required to be laid before the Houses or not, the committee possesses the right to scrutinize the whole range of subordinate legislation.
Moreover the Parliament possesses the in
herent right to modify any rules whether the Enabling Act made an express provision to that effect or not.
The Committee also recommended giving of sufficient publicity to the rules. It suggested that:
(i) The Government should examine every set of rules to assess whether or not it is of concern or importance to the general public.
(ii) Advance copies of the rules of importance to the general public should be sent to the State Governments, which should publish them in their own Gazettes and also get them translated in the languages of the States. Rules both at the Centre and in the States should be got published simultaneously.
(iii) Government should issue press communiqués to publicize the general purport and effect of the rules and orders.
The Committee suggested to the Government that rules should be written in easily tangible languages. The explanatory notes should be attached to them to explain their general purport. It demanded modification in some specific Rules, viz., the Development Councils Rules 1952, Central Excise Rules 1944, Estate Duty Rules 1953, Tea Rules, 1953, etc.
The Committee showed an unvarying tendency to condemn several features of delegated legislation, viz., curtailment of the jurisdiction of the courts, violation of the provisions of parent Act, indefinite, complex and ambiguous wording, undue delay between publication of an order and its being laid on the floor of the Houses.
In its eleventh report presented in May, 1961, the Committee suggested that assuming fresh powers by the Union Government, to regulate the conditions of service of the personnel of the All-India Service regarding residuary matters, by issuing regulations instead of rule is unjustified.
The Committee’s recommendations have been given due consideration by the Government. Many of them have been accepted. Its work in the initial stages has been fairly impressive.
In the words of Morris Jones, “It has made an able and workman like start to its important task.” Its members are, in the words of G.V. Mavalankar (The Late Speaker of the Lok Sabha) “the only protectors of the people against the new despotism getting aggressive.”
In fact, the committee has so far been functioning dispassionately with a judicial mind and moderation on non-party lines. If it continues functioning on these lines and goes on denouncing certain features of delegated legislation, it is apt to set norms to which delegated legislation would scrupulously adhere.