Types of delegated legislation
Introduction
The word legislation is combination of two different word legis which means law and latio means to make. It means making the law or law making process. The legislation is termed as Supreme law of land. Salmond classification the delegated legislation in two parts.
- Supreme legislation
- Subordinate legislation
Supreme legislation is passed by Supreme authority and subordinate legislation is passed by subordinate authority and which is under control of supreme authority In USA the delegated legislation is not in practice legislation is entrusted with some of its power to executive.
Definitions of Delegated legislation
- According to Salmond
Salmond defines subordinate legislation is that which proceeds from any authority other than the power and is therefore dependent for its continued existence and validity on some superior or supreme authority
- According to Sir Cecil Carr
He defines delegated legislation is growing child called upon to release the parent of a strain work and capable of attending to minor matter while parent manages the main business. The delegated legislation is so lengthy that the statute would only be in complete but misleading unless it to be read along with the delegated legislation which amplifies and amends it.
Types of delegated legislation
- Substantive control
- Parent act ultra virus: – This is based on the maxim nemo dat quod non habet (no one can pass a better little than what he has). It means where parent act itself is unconstitutional and in valid then delegated legislative also becomes unconstitutional and invalid. The first essential of delegated legislation is that the parent act should be constitutional and valid.
- Inconsistency: – Where the parent act delegates one matter and subordinates authority legislates on another matter. Here arises inconsistency between the parent act and delegated legislation. Therefore, court can quash such delegated legislation.
Case law: – Chander Bali V. R (Stands for rex/regina)
In this case the state enacted the northern India ferries act, the parent act authorize the subordinates authorities to make the rules for safety and maintenance of ferries. The subordinate authority under the delegated legislation made the rule to ban two miles distance from one ferry to another.
Judgment: – The court held that delegated legislation was inconsistent with the parent act and therefore, it rejected that specific delegated legislation.
- Where delegated legislation is unconstitutional:- It is general principle and phenomena that all statutes including parliamentary act must be in accordance with the constitution then such act, rule, by law made by parliament or subordinate authority is liable to be set aside. Sometimes the parent act is constitutional but the delegated legislation over ride the constitution. Such delegated legislation is known as unconstitutional one.
Case law: – Kries V. John son (1898) 2 Queen’s Bench
In this case rule was made by delegated authority by which they have prohibited any person from playing music or singing in a public place or highway within 50 yards of any dwelling house.
Judgment: – The Queen’s Bench quashed this rule giving the opinion that it is unreasonable one.
- Mala fide: – It means bad faith. It is also good ground to quash subordinate legislation. It is based on public place. The mala fide must be present on the face of rule itself. In England and in India this is the valid ground to set aside delegated legislation.
Case Law: – Lavji Bhai V. Ramji Bhai AIR 1962
In this case SC held that a writ petition would lie were subordinate authority act with bad faith (mala fide) and illegal issuing the notification to cause unnecessary harassment to citizen.
- When the delegated legislation is excessive in nature: – Usually delegated legislation are rarely challenged on the ground of excessiveness but whenever court found that the executive had exceeded its authority then they can revoke such delegated legislation.
- If the delegated legislation is unreasonable: – Generally a statute can’t be challenged on the ground that it is unreasonable one but there are few exception to this rule as well.
- Sub delegations (Delegation further cannot be delegated): – Principle of sub delegation is not accepted in usual form unless and until there is a express or implied provision to that effect. Hence sub delegation can be challenged on the ground of further delegation.
- Procedural control
While delegating it legislative power to subordinate authorities the parent act describes contains procedure with to be followed the subordinate authorities have to strictly adhere to the instruction and requirement by the parent act. The subordinate authorities violate such procedures that it becomes procedural ultra wins and will be held as invalid. Usually the parent art made two kinds of prescriptions.
1 Mandatory provision
2 Director Provisions
The mandatory provision must be complied without any the exception. On the contrary provision may compel or it is optional. Generally non co
Publication of transports
Ignorance of fact may be excursed but ignorance of law shall not be excused .Every govt. actions decisions orders notification must be transparent, and must be available to every citizen that only maximum number of people will get its fruitful results. Every citizen can question the concerned executive and can get relevant information. The publication of rules, notification, orders is the part and parts and parcel of natural justice. If the law is made and is kept in almirah of bureaucrats then how people could know the laws. Therefore all laves including every act, Ordinance, rule, notification shall be published.
State of Bombay V. M.H George
In this cases parliament enacted prevention of smuggling act. Under this said central govt. was empowered to issue notification to time to time whenever necessary. According central government issued dated 8 November 1962 prohibiting import of gold in India. The said notification was published in official gazette on 24 November 1962. MH George was arrested at Bombay airport on 28″ of November1962 with gold. He took defense that notification prohibiting import of gold was not known to him and said notification was not even published.
Judgment
The Supreme Court rejected the contentions of MH. George and held that the notification were validly published.
Consultation
While making the law the subordinate authorities shall not consult with the persons whose interest going to be affected by such subordinate legislation. It is one the measure to check and control subordinate legislation. Consultation is valuable safeguard against misuse of legislative power by the subordinate authorities. The interested person can bring a necessary alteration in the draft of
In America, administrative procedure act 1946 makes the necessary provision making consultation as a necessary requirement and it is mandatory to have the los consultation as well.
In India there is no enactment as far as consultation. However the parent act may provide consultation as compulsory while making the subordinate legislation. If the parent and makes it obligatory to have the consultation then the cons constitution should be strictly adhered.
Banwari Lal v. State of Bihar AIR 1961 SC 849
In this case the mines act 1952 were enacted by parliament. It is a parent act. The section 59 this act provides for compulsory consultation with the mining boards by central government before formulating rules and regulations. The provisions of section 59 were mandatory. In this case while formulating regulation no consultation were conducted. The petition challenged this.
Judgment
The Supreme Court quashed those regulations as there was no consultation and them as ultra virus.
Legislative or parliamentary control over parliament delegation
The legislative control is also known as parliamentary control over delegated legislation It is further divided into: –
1 Laying on table
Laying on table means putting the subordinate legislation before the parliament. The executive is authorized to legislate by supreme legislative authority. The law made by subordinate authority shall have to submit those laws for the verification to the parliament. It is known as a by laying con table
Objective of laying on table
Laying on table is meant to check the subordinate author ties. By this sovereign can know what subordinate authorities did come out and how far it performs its duties. Further it is also mean to see whether it exceeded its limits.
Effects of laying on table
In England there is a statute by name ‘statutory instrument act 1946’. By this statute it was made compulsory every delegated legislation become valid only after it is laid only before the parliament and approved by it. In India the position is not clear as we don’t have any statute like England.
In Jan Mohammad V. State of Gujarat AIR 1966 SC 385
The Supreme Court held that when the parent all permits and make the subordinate rules as valid then there is no requirement of laying on table.
2 Scrutiny committees
Scrutiny means close investigation or strict enquiry. Here the enquiry is made as to validity of delegated legislation there are two scrutiny committees in India.
1 Lok Sabha committee on subordinate legislation
2 Rajya Sabha committee on subordinate legislation
Objective / purpose of scrutiny committees
The purposes of scrutiny committees are to scrutinize and report to the respective house as to whether the power to make regulation, rules. By law conferred by constitution or delegated by parliament and being properly exercised within such delegation
Lok Sabha committee on subordinate legislation
There shall be 15 members. All of them shall be appointed by the speaker of Lok Sabha. They are appointed from all the parties. There duration is only one year. The chairman of the committee shall be appointed from the opposition party. Ministers are also eligible to brome member of scrutiny committee unanimous decisions are generally adopted by the committee.
Rajya Sabha committee on subordinate legislation
It consists of 15 members from all the parties. The chairman and member’s chairman of scrutiny committee and appointed by chairman by Rajya Sabha minister can also become the scrutiny committee.
The functions of both there 2 committees are to scrutinize regulations rules, orders etc.
Author: Dhawani Sharma,
Amity University , Madhya Pradesh