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
scrutinised by the Court and Legislature
The
control of delegated legislation may be one or more of the following types: -
1) Procedural;
2) Parliamentary; and
3) Judicial
1) Procedural
Control of delegated legislation by
procedure – From the citizen’s point of view the most
beneficial safeguard against the dangers of the misuse of delegated legislation
is the development of a procedure to be followed by the delegates while
formulating rules and regulations. The Acts of Parliament delegating
legislative powers to other bodies or authorities often provide certain
procedural requirements to be complied with by such authorities while making
rules and regulations etc. These formalities may consist of consultation with
interested bodies, publication of draft rules and regulations, hearing of
objections, considerations of representations etc.
If
the formal requirements are mandatory in nature and are disregarded by the said
authorities then the rules etc. so made by these authorities would be
invalidated by the Judiciary. In short, subordinate legislation in
contravention of mandatory procedural requirements would be invalidated by the
court as being ultra vires the parent statute. The question of the
effectiveness of the application of the doctrine of ultra vires, so far as
procedure is concerned, would largely depend upon the words used in the
particular statue. If the words are specific and clearly indicate the bodies to
be consulted, then it would be possible to show noncompliance. On the other
hand, if the procedural requirements were merely of directory nature, then a
disregard thereof would not affect the validity of subordinate legislation.
The
question whether particular procedural requirements are mandatory or directory
must be examined with care. In case the statute provided for the effect of
noncompliance of such requirements, then it is to be followed by the courts
without difficulty. But uncertainty creeps in where the statute is silent on
the point and decision is to be made by the judiciary. The courts in
determining whether the provisions to this effect in a particular Statute are
mandatory or directory are guided by various factors. They take into
consideration the whole scheme of legislation and particularly evaluate the
position of such provisions in their relation with the object of legislation.
The nature of the subject matter to be regulated, the object of legislation,
and the provisions as placed in the body of the Act must all be considered
carefully, so as to find out as to what was the intention of the legislature.
2) Parliamentary
Parliamentary
control in India over delegation: Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be
delegated to the executive. Discretion to make notifications and alterations in
an Act while extending it and to effect amendments or repeals in the existing
laws is subject to the condition precedent that essential legislative functions
cannot be delegated. In order to avoid the dangers, the scope of delegation is
strictly circumscribed by the Legislature by providing for adequate safeguards,
controls and appeals against the executive orders and decisions.
In
India, the question of control on rule-making power has always engaged the
attention of the Parliament. Parliamentary control of delegated legislation is
exercised:
A) Through Parliamentary debate on the provisions
of a Bill providing for delegation. During such debates the issue of necessity
of delegation and the contents of the provisions providing for delegation can
be taken up.
The
Bills tabled in the Parliament are generally accompanied with Memoranda of
Delegated Legislation in which; -.
i) full purpose and effect of the delegation of
power to the subordinate authorities,
ii) the points which may be covered by the rules,
iii) the particulars of the subordinate authorities
or the persons who are to exercise the delegated power, and
B) By getting them scrutinized by Parliamentary
Committee of the Rules, Regulations, Bye-laws and Orders. Under the Rule of
Procedure and Conduct of Business of the Lok Sabha, provision has been made for
a Committee which is called ‘Committee on Subordinate Legislation’. It is
usually presided over by a Member of the Opposition. The Committee examines
whether:-
i) the
statutory rules, orders, bye-laws, etc. made by any-making authority, and
reports to the House whether the delegated power is being properly exercised
within the limits of the delegated authority, whether under the Constitution or
an Act of Parliament.
ii) the
Subordinate legislation is in accord with the general objects of the
Constitution or the Act pursuant to which it is made;
iii) it
contains matter which should more properly be dealt within an Act of
Parliament;
iv) it
contains imposition of any tax;
v) it,
directly or indirectly, ousts the jurisdiction of the courts of law;
vi) it
gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly confer any such power;
vii) it
is constitutional and valid;
viii) it
involves expenditure from the Consolidated Fund of India or the Public
Revenues;
ix) its
form or purpose requires any elucidation for any reason;
x) it
appears to make some unusual or unexpected use of the powers conferred by the
Constitution or the Act pursuant to which it is made; and
there
appears to have been unjustifiable delay in its publication on its laying
before the Parliament.
C) By the Laying requirement (discussed above).
The members are informed of such laying in the daily agenda of the House. The
advantage of this procedure is that Members of both the Houses have such
chances as to –
i) modify or repeal the enactment under which
obnoxious rules and orders are made, or
ii) revoke rules and orders themselves.
3) Judicial
Judicial
control over delegated legislature can be exercised at the following two levels
:-
1) Delegation may be challenged as
unconstitutional; that is the delegation can be challenged in the courts of law
as being unconstitutional, excessive or arbitrary or
2) That the Statutory power has been improperly
exercised.
1. The scope of permissible delegation is fairly
wide. Within the wide limits delegation is sustained if it does not, otherwise,
infringe the provisions of the Constitution. Article 13(3)(a) of the
Constitution of India lays down that law, which includes any ordinances, order,
by-law, rule, regulation, notification, etc. if found in violation of
fundamental rights would be void. 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. 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.
2. The court can inquire into whether delegated
legislation is within the limits laid down by the statute. The validity of the
rules may be assailed as the stage in two ways:-
i) That they run counter to the provisions
of the Act; and
ii) That they have been made in excess of the
authority delegated by the Legislature.
If
a piece of delegated legislation were found to be beyond such limits, court
would declare it to be ultra vires and hence invalid. The administrative
authorities exercising legislative power under the authority of an Act of the
Parliament must do so in accordance with the terms and objects of such statute.
To find out whether administrative authorities have properly exercised the
powers, the court have to construe the parent statute so as to find out the
intention of the legislature. The existence and extent of the powers of
administrative authorities is to be affixed in the light of the provisions of
the parent Act. 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.
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