Modes of control over delegated legislation: Administrative Law Notes

Modes of control over delegated legislation: Administrative Law Notes- Prolawctor


Modes of control over delegated legislation: Administrative law extensively involves delegated legislation—a critical aspect where legislative powers are transferred from the legislature to executive authorities. Delegated legislation enables administrative bodies to create regulations, rules, and laws within the parameters set by the enabling statute, shaping the legal framework. Exploring control mechanisms over delegated legislation is vital for judicial, legislative, and procedural oversight, ensuring balanced governance and legality in regulations. .The practice of conferring legislative powers upon administrative authorities though beneficial and necessary is also dangerous because of the possibility of abuse of powers and other attendant evils. There is consensus of opinion that proper precautions must be taken for ensuring proper exercise of such powers. Wider discretion is most likely to result in arbitrariness. The exercise of delegated legislative powers must be properly circumscribed and vigilantly scrutinized by the Court and Legislature is not by itself enough to ensure the advantage of the practice or to avoid the danger of its misuse. For the reason, there are certain other methods of control emerging in this field.

The control of delegated legislation may be one or more of the following types: –

  • Procedural;
  • Parliamentary; and
  • Judicial

Judicial control can be divided into the following two classes: –

  • i) Doctrine of ultra vires and
  • ii) Use of prerogative writs.

Control of Delegate legislation by means of Procedure

The following requirements are made necessary for the exercise of the delegated authority under different statutes so that procedural safeguards are ensured.

  • The Doctrine of ultra vires— The chief instrument in the hands of the judiciary to control delegated legislation is the “Doctrine of ultra vires.” The doctrine of ultra vires may apply with regard to
  • ii)procedural provision; and
  • iii) substantive provisions.
    The procedural control mechanism operates in following three components:-
    • (i) Prior consultation of interests likely to e affected by delegated legislation.
    • (ii) Prior publicity of proposed rules and regulations
    • (iii) Post-natal publicity of delegated legislation

Parliamentary Control over Delegated Legislation

  • (i) By laying the rules on the table of Parliament; and
  • (ii) By a Committee of Parliament acrutinishing the rules so laid.

In U.S.A. the control of Congress over delegated is very limited because neither the technique of ‘lying’ is extensively used nor there is any Congressional Committee to scrutiny it. In England, due to concept of supremacy of Parliament, the control exercised by the Parliament over and administrative rule making is very broad and effective. This Parliamentary control operates though ‘laying’ techniques. Under the provisions of statutory Instruments Act, 1946, all administrative rule making is subject to the control of the Parliament through the Select Committee on statutory Instruments.

In India, the Parliamentary control of delegated legislation follows the same patterns as in England. Like Standing Committee in House of Commons in Britain he further said that such committee would examine delegated legislation and would bring to the notice of Parliament whether delegated legislation has exceeded the original intention of Parliament or has departed from it or has affected any fundamental principle.

  1. (i) By laying rule on the table of Parliament
    1. (a) Laying with no further direction
    2. (b) Laying subject to annulment
    3. (c) Laying, Subject to affirmative resolution
    4. (d) Laying with deferred operation
    5. (e) Laying with immediate effect but requiring affirmative resolution as a condition for continuance
  2. By a committee of Parliament scrutinizing the rules so made
    The main function of these committees is to examine the merits of the executive legislation against which petitions are presented. Main functions of Committees – According to Rule 223, the main functions of the Committee shall be to examine:
    • Whether the rules are in accordance with the general objects of the Act;
    • Whether the rules contain any matter which could more properly be dealt the Act;
    • Whether it contains imposition of tax;
    • Whether is directly or bars the jurisdiction of the Court;
    • Whether it is retrospective;
    • Whether it involves expenditure from the Consolidated Fund;
    • Whether there has been unjustified delay in its publication or laying;
    • Whether, for any reason, it requires further elucidation.

Parliament, being supreme, can certainly make a law abrogating or repealing by implication provisions of any preexisting law and no exception can be taken on the ground of excessive delegation to the Act of the Parliament itself.

Limits of permissible delegation

When a legislature is given plenary power to legislate on a
particular subject, there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority.

The primary duty of law making has to be discharged by the legislature itself but delegation may be reported to as a subsidiary or ancillary measure. (Edward Mills Co. Ltd. v. State of Ajmer, (1955) 1. S.C.R. 735) Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, A.I.R. 1954 S.C. 555 : (1955) 1.S.C.R. 380 at p. 388 observed : “The Legislature cannot delegate its functions of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The legislature must declare the policy of the law and the legal principles which are to control and given cases and must provide a standard to guide the officials of the body in power to execute the law”.

Therefore the extent to which delegation is permissible is well settled. The legislature cannot delegate its essential legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its delegates its subsidiary powers in that behalf. (Vasant lal Maganbhai Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4)

The guidance may be sufficient if the nature of things to be done and the purpose for which it is to be done are clearly indicated. The case of Hari Shankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465: (1955) 1 S.C.R. 380 is an instance of such legislation.
The policy and purpose may be pointed out in the section conferring the powers and may even be
indicated in the preamble or else where in the Act.

Excessive delegation as a ground for invalidity of statute

In dealing with the challenge the vires of any State on the ground of Excessive delegation it is necessary to enquire whether – The impugned delegation involves the delegation of an essential legislative functions or power, and In Vasant lals case (A.I.R. 1961 S.C. 4). Subba Rao, J. observed as follows; “The constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But, in view of the multifarious activities of a welfare State, it (the legislature) cannot presumably work out all the details to sit the varying aspects of complex situations. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may

  1. not lay down any policy at all;
  2. declare its policy in vague and general terms;
  3. not set down any standard for the guidance of the executive;
  4. confer and arbitrary power to the executive on change or modified the policy laid down by it with out reserving for itself any control over subordinate legislation.
  5. The self-effacement of legislative power in favour of another agency either in whole or in part is
  6. beyond the permissible limits of delegation.
  7. It is for a Court to hold on a fair, generous and liberal construction of on impugned statute whether the
  8. legislature exceeded such limits.

Judicial control over delegated legislature

Judicial control over delegated legislature can be exercised at the following two levels :-

  • Delegation may be challenged as unconstitutional; or
  • That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being unconstitutional, excessive or arbitrary.

The scope of permissible delegation is fairly wide. Within the wide limits. Delegation is sustained it does not otherwise, infringe the provisions of the Constitution. The limitations imposed by the application of the rule of ultra vires are quite clear. If the Act of the Legislature under which power is delegated, is ultra vires, the power of the legislature in the delegation can never be good. No delegated legislation can be inconsistent with the provisions of the Fundamental Rights. If the Act violates any Fundamental Rights the rules, regulations and bye-laws framed there under cannot be better.

Where the Act is good, still the rules and regulations may contravene any Fundamental Right and have to be struck down. The validity of the rules may be assailed as the stage in two ways :-

  • That they run counter to the provisions of the Act; and
  • That they have been made in excess of the authority delegated by the Legislature.

The method under these sub-heads for the application of the rule of ultra vires is described as the method of substantive ultra vires. Here the substance of rules and regulations is gone into and not the procedural requirements of the rule making that may be prescribed in the statute. The latter is looked into under the procedural ultra vires rule.

Power of Parliament to repeal law Under the provision to clause (2) of Article 254, Parliament can enact at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Ordinarily, the Parliament would not have the power to repeal a law passed by the State Legislature even though it is a law with respect to one of the matters enumerated in the Concurrent List. Section 107 of the Government of India Act, 1935 did not contain any such power. Art. 254 (2) of the Constitution of India is in substance a reproduction of section 107 of the 1935 Act, the concluding portion whereof being incorporated in a proviso with further additions.

Now, by the proviso to Art. 254 (2), the Indian Constitution has enlarged the powers of Parliament and, under that proviso, Parliament can do what the Central Legislature could not do under section 107 of the Government of India Act, and can enact a law adding to, amending, varying or repealing a law of the State when it relates to a matter mentioned in the concurrent List. Therefore the Parliament can, acting under the proviso to Art. 254 (2) repeal a State Law.

While the proviso does confer on Parliament a power to repeal a law passed by the State Legislature, this power is subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a law so made by the State Legislature. The law referred to here is the law mentioned in the body of Art. 254 (2), It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent to an earlier law made by Parliament and with the consent of the President. It is only such a law that can be altered, amended, repealed under the proviso.

The power of repeal conferred by the proviso can be exercised by Parliament alone and cannot be delegated to an executive authority. The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book. It is wiped out from the statute book.

In the case of Delhi Laws Act, 1951 S.C.R. 747, it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power.

Parliament, being supreme, can certainly make a law abrogating or repealing by implication provisions of any preexisting law and no exception can be taken on the ground of excessive delegation to the Act of the Parliament itself.

In administrative law, control mechanisms over delegated legislation play a pivotal role in ensuring the legitimacy and adherence of regulations. Judicial control, alongside legislative and procedural oversight, maintains statutory compliance, preventing potential misuse of delegated powers. Parliamentary supervision and judicial review are essential in upholding legality and constitutionality in rules established through delegated legislation. This approach balances efficient rule-making with accountability and adherence to the rule of law.

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