Control Over Delegated Legislation

Control Over Delegated Legislation

Introduction

Delegated legislation refers to the rules, regulations, and by-laws made by administrative authorities under the powers conferred by a parent or enabling act. While it is necessary for efficient governance, it requires strict control mechanisms to prevent misuse, overreach, or arbitrary exercise of power. Control over delegated legislation is exercised through three primary mechanisms:

1. Parliamentary Control
2. Judicial Control
3. Procedural Control

1. Parliamentary Control Over Delegated Legislation

Parliamentary control is the most significant safeguard since delegated legislation is created under its authority.

A. Laying Procedure

Many statutes require that delegated legislation be laid before Parliament. The laying procedure allows Parliament to scrutinize and object to the legislation if necessary. The main types of laying procedures are:

• Simple Laying: The legislation is laid before Parliament and takes effect unless it is annulled within a specified period.
• Negative Resolution Procedure: The legislation automatically becomes law unless either House objects within a fixed period (usually 30 or 40 days).
• Affirmative Resolution Procedure: The legislation must be explicitly approved by Parliament before it takes effect.
• Super Affirmative Resolution Procedure: Involves additional scrutiny and consultation before approval, often used in cases of significant impact.

B. Committee on Subordinate Legislation

Parliament has a Committee on Subordinate Legislation in both Houses, which examines whether the rules and regulations:

• Exceed the authority granted by the parent act
• Conflict with existing laws
• Violate fundamental rights
• Involve excessive delegation

C. Power to Amend or Repeal

Parliament can amend or repeal a parent act if it finds that the delegated legislation is being misused or leading to excessive delegation of power.

2. Judicial Control Over Delegated Legislation

Courts play a crucial role in ensuring that delegated legislation adheres to constitutional principles and does not exceed the limits of the parent act. Judicial control is exercised through the doctrine of ultra vires.

A. Doctrine of Ultra Vires

Delegated legislation can be challenged in court if it goes beyond the powers conferred by the parent act. There are two types:

1. Substantive Ultra Vires – When the delegated legislation exceeds the powers granted by the parent act.
   • Example: If a municipality, under a parent act empowering it to regulate traffic, imposes taxes, it would be held invalid.
2. Procedural Ultra Vires – When the prescribed procedure for making the delegated legislation is not followed.
   • Example: If a law requires prior consultation before making a rule, and this is not done, the rule can be declared invalid.

B. Violation of Fundamental Rights

If a delegated legislation violates any fundamental right under the Constitution, courts have the power to strike it down.

C. Case Laws on Judicial Control

• A.K. Gopalan v. State of Madras (1950) – The Supreme Court held that delegated legislation cannot violate fundamental rights.
• D.S. Grewal v. State of Punjab (1959) – The Court ruled that essential legislative functions cannot be delegated.
• Ramesh Birch v. Union of India (1989) – The Supreme Court struck down excessive delegation that allowed the executive to amend laws.

3. Procedural Control Over Delegated Legislation

Procedural control ensures transparency and accountability in the rule-making process.

A. Publication and Publicity

Delegated legislation must be published in the Official Gazette to inform the public. Failure to publish a rule may make it invalid.

B. Consultation with Experts and Public Participation

Some laws require prior consultation with stakeholders before rules are made. For example, environmental regulations often involve public participation.

C. Departmental Supervision and Review

Government departments periodically review and modify delegated legislation to ensure it remains effective and necessary.

4. Limitations of Control Over Delegated Legislation

Conclusion

Control over delegated legislation is essential to prevent arbitrary rule-making and ensure compliance with constitutional principles. While parliamentary, judicial, and procedural controls provide necessary safeguards, stronger oversight mechanisms and greater public participation are needed to ensure transparency and accountability in delegated legislation.

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