Parliamentary and Judicial Control over delegated legislature

Introduction


In previous post, we have discussed about delegated legislation, it's types, what all things can be delegated, what cannot be delegate etc.

We have also seen that these delegated legislation are necessary evil. There are chances that administrative authorities could abuse the power (They will definitely do) and hence safeguards are needed to control over delegated legislation.

We will cover 3 types of control over delegated legislation
  • Procedural
  • Parliamentary
  • Judicial

Procedural Control over delegated legislation

When the power is delegated to executives, legislature can prescribe the procedure in which executives should use his delegated power. Procedure prescribed can help control the abuse of power by executives or administrative authorities.

Procedure for consulting with affected parties


For example, procedure can state that administrative authority should consult with all stakeholders before making rules, ordinance or other delegated legislation. For example if delegated power is related to land acquisition, then authority should have meeting with the parties who are going to be impacted by delegated legislation, address their concert instead of passing delegated legislation  unilaterally. If procedure mandates consulting then it ensures the participation of affected interest.

Procedure for prior publication of rules and notification

Procedure prescribed can be state that instead of directly enacting rules and notification, administrative authority should publish such rules and notification, get public comment on it and then go ahead with it's delegated power.

Adequate publication of delegated legislation

Delegated legislation should be published so that it's not a surprise for affected parties.


All in all, procedures can be prescribed to control the delegated legislation and prevent the abuse of power by administrative authority or executives.

Parliamentary Control over Delegated Legislation

Currently we have Committee in Rajya Sabha to scrutinize the subordinate legislation. Such committee was first constituted in 1964.

The principal function of the Committee is to scrutinize the various rules, regulations, bye-laws, schemes and other statutory instruments (briefly referred to as 'orders') framed in exercise of the powers conferred by the Constitution or delegated under the various Acts of Parliament to see whether the ‘order’ is in accord with the provisions of the Constitution or the Act, pursuant to which the same is made and to report to Rajya Sabha in regard thereto.

The Committee has to satisfy itself whether the 'order' is intra vires of the Constitution or the respective Act of Parliament.   In case any order is found not to be in accord with the provisions of the Constitution or of the Act whereunder it is made, the Committee recommends that the respective rules and regulations be suitably amended.

Main function of this committee is to validate and considers
  • whether the order is in accord with the provisions of the Constitution or the Act pursuant to which it is made;
  • whether the order contains matter which in the opinion of the Committee should more properly be dealt within an Act of Parliament;
  •  whether the order contains imposition of taxation;
  • whether the order directly or indirectly bars the jurisdiction of the court;
  •  whether the order gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power;
  • whether the order involves expenditure from the Consolidated Fund of India or the public revenues;
  • whether the order appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made;
  • whether  there  appears  to  have  been unjustifiable delay in its publication or laying the order before Parliament; and
  • whether for any reason the form or purport of the order calls for any elucidation.
Not only order, but other subordinate legislation such as rules, by laws, notification has to be considered by this committee.

Even in Lok Sabha We have similar committee to take care that delegated legislations are not abused by executive.

Current chairman of this committee is Kanumuru, Shri Raghu  Ramakrishna Raju

With these committees, parliament in general keeps in check the executives excesses in delegated legislation.

Judicial control over delegated legislation

There are two ways judiciary can exercise control over delegated legislation
  1. Doctrine of Ultra vires
  2. Struck down the law when authority improperly exercise statutory power

Doctrine of Ultra Vires

 This is chief instrument in the hands of judiciary to control the delegated legislation.

First, let us discuss the struck down the law on ground of procedural defect. When legislature delegate to executive, they may prescribe the procedure to be followed before exercising delegated power. If executives or administrative authority don't follow the procedure then such delegated legislation can be struck down by court.

For example, if Law says before passing rule, consulting with local bodies are necessary and if administrative authority without consulting makes a rules, such rules can be struck down by court as they didn't follow the prescribed procedure.

Second, the rules, by-laws or notification violates some constitution provisions or provisions in the main Act, then also judiciary can struck down such subordinate legislation.

For example, Central Government can make rules regarding Insolvency under Insolvency and Bankruptcy code, 2016. If government makes a rules that are inconsistent with main Act or Constitution.

To summarize, doctrine of ultra vires can be invoked
  1. In procedural defect
  2. Substantive defect

Improper exercise by Authority

If authority don't have expressed power for delegated legislation and still they go ahead with delegated legislation, then such delegated legislation can be struck down by the Court.

Conclusion

Though delegated legislations are necessary evil, we have enough safeguards in place in the form of parliament, judiciary and procedural controls.

This controls are extremely necessary so that we don't end up with despotic, dictatorial rule.





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