Administrative Law..docx

AMITY UNIVERSITY AMITY LAW SCHOOL

Assignment of ADMINISTRATIVE LAW On Delegation Legislation

Submitted to: Mr. ASHUTOSH SHUKLA Submitted by: Vipin Jaiswal Enrollment No.: A8111114078 B.A. LL.B, Sec-B SEMESTER - IV

ACKNOWLEDGEMENT

It is indeed a proud privilege to express my deep sense of gratitude to my respected teacher and guide Mrs.Pooja Kaushik for his valuable guidance, scholarly inspiration, which he have extended me for the successfully completion of this endeavor. His effort can be only better expressed by coming up to his expectations. I have thoroughly study on the topic of BHOPAL GAS TRAGEDY

CONTENT

 Introduction  Why delegated legislation becomes inevitable  Nature and Scope of delegated legislation  Types of delegation of legislative power in India  Modes of control over delegated legislation  Procedural;  Parliamentary; and  Judicial control  Conclusion  Bibliography

Introduction One of the most significant developments of the present century is the growth in the legislative powers of the executives. The development of the legislative powers of the administrative authorities in the form of the delegated legislation occupies very important place in the study of the administrative law. We know that there is no such general power granted to the executive to make law it only supplements the law under the authority of legislature. This type of activity namely, the power to supplement legislation been described as delegated legislation or subordinate legislation.

Why delegated legislation becomes inevitable The reasons as to why the Parliament alone cannot perform the jobs of legislation in this changed context are not far to seek. Apart from other considerations the inability of the Parliament to supply the necessary quantity and quality legislation to the society may be attributed to the following reasons:  Certain emergency situations may arise which necessitate special measures. In such cases speedy and appropriate action is required. The Parliament cannot act quickly because of its political nature and because of the time required by the Parliament to enact the law.  The bulk of the business of the Parliament has increased and it has no time for the consideration of complicated and technical matters. The Parliament cannot provide the society with the requisite quality and quantity of legislation because of lack of time. Most of the time of the Parliament is devoted to political matters, matters of policy and particularly foreign affairs.  Certain matters covered by delegated legislation are of a technical nature which require handling by experts. In such cases it is inevitable that powers to deal with such matters is given to the appropriate administrative agencies to be exercised according to the requirements of the subject matter. “Parliaments” cannot obviously provide for such matters as the members are at best politicians and not experts in various spheres of life.

1. Parliament while deciding upon a certain course of action cannot foresee the difficulties, which may be encountered in its execution. Accordingly various statutes contain a ‘removal of difficulty clause’ empowering the administration to remove such difficulties by exercising the powers of making rules and regulations. These clauses are always so worded that very wide powers are given to the administration. 1. The practice of delegated legislation introduces flexibility in the law. The rules and regulations, if found to be defective, can be modified quickly. Experiments can be made and experience can be profitability utilized. However the attitude of the jurists towards delegated legislation has not been unanimous. The practice of delegated legislation was considered a factor, which promoted centralization. Delegated Legislation was considered a danger to the liberties of the people and a devise to place despotic powers in few hands. It was said that delegated legislation preserved the outward show of representative institutions while placing arbitrary and irresponsible power in new hands. But the tide of delegated legislation was high and these protests remained futile.

Nature and Scope of delegated legislation Delegated legislation means legislation by authorities other than the Legislature, the former acting on express delegated authority and power from the later. Delegation is considered to be a sound basis for administrative efficiency and it does not by itself amount to abdication of power if restored to within proper limits. The delegation should not, in any case, be unguided and uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects which is to be exercised by them. It is only a nonessential legislative function that can be delegated and the moot point always lies in the line of demarcation between the essential and nonessential legislative functions. The essential legislative functions consist in making a law. It is to the legislature to formulate the legislative policy and delegate the formulation of details in implementing that policy. 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 authority cannot be precisely defined and each case has to be considered in its setting. 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. While commenting on indispensability of delegated legislation JusticeKrishnaIyer has rightly observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to a start if they must directly and comprehensively handle legislative business in their plentitude, proliferation and particularization Delegation of some part of legislative power becomes a compulsive necessity for viability.

Types of delegation of legislative power in India There are various types of delegation of legislative power. 1. Skeleton delegation In this type of delegation of legislative power, the enabling statutes set out broad principles and empowers the executive authority to make rules for carrying out the purposes of the Act. A typical example of this kind is the Mines and Minerals (Regulation and Development) Act, 1948. 2. Machinery type This is the most common type of delegation of legislative power, in which the Act is supplemented by machinery provisions, that is, the power is conferred on the concerned department of the Government to prescribe – 1. The kind of forms 2. The method of publication 3. The manner of making returns, and 4. Such other administrative details In the case of this normal type of delegated legislation, the limits of the delegated power are clearly defined in the enabling statute and they do not include such exceptional powers as the

power to legislate on matters of principle or to impose taxation or to amend an act of legislature. The exceptional type covers cases where – 1. The powers mentioned above are given , or 2. The power given is so vast that its limits are almost impossible of definition, or 3. while limits are imposed, the control of the courts is ousted. Such type of delegation is commonly known as the Henry VIII Clause. An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the Provincial Government was authorized to extend, with restrictions and modifications as it thought fit any enactment in force in any part of India to the Province of Delhi. This is the most extreme type of delegation, which was impugned in the Supreme Court in the Delhi Laws Act case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if the administrative authorities materially interfered with the policy of the Act, by the powers of amendment or restriction but the delegation was valid if it did not effect any essential change in the body or the policy of the Act.

Modes of control over delegated legislation 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 control

Procedural Control Over Delegated Legislation

A. Prior consultation of interests likely to be affected by proposed delegated Legislation From the citizen’s post of view the must 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. In England as in America the Legislature while delegating powers abstains from laying down elaborate procedure to be followed by the delegates. But certain acts do however provide for the consultation of interested bodies. andsometimes of certain Advisory Committees which must be consulted before the formulation and application of rules and regulations. This method has largely been developed by the administration independent of statute or requirements. The object is to ensure the participation of affected interests so as to avoid various possible hardships. The method of consultation has the dual merits of providing as opportunity to the affected interests to present their own case and to enable the administration to have a first-hand idea of the problems and conditions of the field in which delegated legislation is being contemplated. (B) Prior publicity of proposed rules and regulations Another method is antecedent publicity of statutory rules to inform those likely to be affected by the proposed rules and regulations so as to enable them to make representation for consideration of the rule-making authority. The rules ofPublication Act, 1893, S.I. provided for the use of this method. The Act provided that notice of proposed ‘statutory rules’ is given and the representations of suggestions by interested bodies be considered and acted upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in spite of the omission, the Committee on Ministers Powers 1932, emphasized the advantages of such a practice. Publication of Delegated Legislation – Adequate publicity of delegated legislation is absolutely necessary to ensure that law may be ascertained with reasonable certainty by the affected persons. Further the rules and regulations should not come as a surprise and should not consequently bring hardships which would naturally result from such practice. If the law is not known a person cannot regulate his affiars to avoid a conflict with them and to avoid losses. The importance of these laws is realised in all countries and legislative enactments provide for adequate publicity.

Provisions in the parent statute for consulting the interested parties likely to be affected may, in such cases, avoid all these inconveniences, and the Railway authorities may not act such a rule after they consult these interests. A simple provision regarding consultation thus assumes importance.

Judicial control over delegated legislature Judicial control over delegated legislature can be exercised at the following two levels:1. Delegation may be challenged as unconstitutional; or 2. 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. Besides the constitutional attack, the delegated legislation may also be challenged as being ultra vires the powers of the administrative body framing the rules and regulations. 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. 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 marking that may be prescribed in the statute. The latter is looked into under the procedural ultra vires rule.

When the Court applies the method of substantive ultra vires rule, it examines the contents of the rules and regulations without probing into the policy and wisdom of the subject matter. It merely sees if the rules and regulations in their pith and substance are within the import of the language and policy of the statute. The rules obviously cannot go against the intent of statute and cannot be inconsistent with the provisions of the Act. They are framed for giving effect to the provisions of this Act and not for nullifying their effect and they should not be in excess of the authority delegated to the rulemaking body. Delegated legislation should not be characterised with an excessive exercise of discretion by the authority. The rules cannot be attacked to the general plea of unreasonableness like the bye-laws framed by a local body. Reasonableness of the rules can be examined only when it is necessary to do so for purpose of Articles 14 and 19 of the Constitution. The rule of procedural ultra vires provides with a very limited method of judicial control of delegated legislation Often there are specific saving clauses barring the jurisdiction of the courts to question the validity of rules and orders. For example, Section 16 of the Defence of India Act, 1939 lay down as follows: 16 Saving as to orders(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court. (2) Where an order purports to have been made and signed by any power conferred by or under this Act, a Court shall, within the meaning of Indian Evidence Act, 1872, presume that such order was so made by that authority.” Such provisions can only be justified— (i) On the basis of special circumstances of emergency legislation, and (ii) On the plea of State necessity. Kruse. v. Johnon-

It was laid down that a bye-law would be unreasonable if it is found to be (i) partial or unequal i.e. its operation as between different classes; (ii) manifestly unjust: (iii) disclosing bad faith; and (iv) involving such oppressive or gratuitous interference with the right of the people that it could find no justification in the minds of reasonable men. Chintaman Rao’s Case: Article 13 has a specific impact upon the validity of all the rules and bye-laws. In Chintaman Rao’s case the notification of a Deputy Commissioner prohibiting the manufacture of bee dies during the agriculture season was invalidated on the ground of its violating Article 19 (1) (g). Chadran v. R. (1952) A rule or bye-law must be within the power entrusted to the legislature. For example an Act of the U.P. State was devised to control the transport of goods and passengers by ferries and authorised the Commissioner to make rules for the safety of the passengers and property. But actually the Commissioner forbade the establishment of private ferries within a distance of two miles from another ferry. That rule was struck down.

Parliamentary control over delegated legislation Delegated legislation is often described as that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. This dependence can often take the form of checks and controls, namely, parliamentary or legislative control; procedural control and judicial control. Delegated legislation is often criticized as an excuse for the legislators, a shield for the administrators and a provocation for the Constitutional purists. However, the very mechanism of delegated legislation cannot and should not be reduced to an evil because it is at the end of the day a necessity. In the modern world where social, economic, technological, and administrative speed outstrips the placid traditional legislative processes, delegated legislation is an essential means of survival. Thus, since it is the legislature which delegates power, it is primarily for it to supervise and control the exercise of this power, and ensure against its objectionable, abusive & unwarranted use.

Direct General Control

The first form of parliamentary control is exercised at the time of passing the enabling act. This is the proceedings in the Parliament which are in the nature of general and direct control. In India, various methods and mechanisms are used such as debates on the delegating bill which include aspects such as the necessity, extent, type of delegation and the authority to whom power is delegated. Further, any member may ask questions on any aspect of delegation of legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules. Budget cuts during a vote of grant and discussions on delegation through a private members’ Bill seeking modifications in the parent act or through a debate at the time of discussion on the address by the President to the joint session of Parliament are also useful. However, in India as in the U.K. these methods are rarely used. This is purely because of lack of convention or practice. Scholars however believe that this method should be used extensively and effectively so as to nip the vices of delegation in the bud.

Direct Special Control Concern for popular control of increasingly extensive administrative activities has brought forth various proposals by which congressional supervision can be maintained. Prominent among these remedies is the device of “laying on the table”, which requires that administrative “legislation” made under delegated authority be presented to the legislature for approval. “Laying” may take various forms such as laying with no further direction wherein the purpose is to simply inform the House. Laying subject to negative resolution implies the coming into force of the rules with the exception that it shall cease to have effect if the House annuls it. Another form is laying subject to affirmative resolution where the rules need approval for coming into effect or else they cease to be in operation until such resolution. The process of laying in draft subject to negative resolution means that within 40 days of laying, the rules will come into force unless disapproved and laying in draft subject to an affirmative resolution is coupled with the power of modification and then approval. In America, even though the concept of strict separation of powers makes parliamentary control rather invisible, Reorganization Acts of 1939 to 1945 provided that the Presidential organizational plans were not to have any effect for a specified period during which they

could be annulled by any Congress through a concurrent resolution of both the Houses. In six states, namely, Connecticut, Kansas, Michigan, Nebraska, Virginia and Wisconsin, provisions exist for laying the rules before the legislative houses. In England, on the other hand, this requirement of laying is used effectively & extensively. The Statutory Instruments Act, 1946 clearly lays down uniform provisions such as deferring the legislation until approval of House; coming into effect of legislation subject to disapproval by House; sending notification to Lord Chancellor and Speaker of House of Commons incase such provisions cannot be maintained. It is also important to assess the legal consequences of non-compliance with laying provisions. In England Section 4(2) of the Statutory Instruments Act, 1946 makes laying provisions mandatory and hence, any violation would lead to nullity of the legislation or rendering the rule void. However, in India, the dichotomy remains as the courts judge if they are mandatory or directory and then proceed to judge the legal consequences. A careful analysis of few cases will show the confusion inherent. In the case of Narendra Kumar v Union of India, Section 3(6) of the Essential Commodities Act, 1955 which reads as, “Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made” was called mandatory primarily because of the words “shall be laid”. Even assuming that the above was not really a deviation as it was due to certain special circumstances, the ruling in Atlas Cycle Industries v State of Haryanawas clearly a very doubtful. In Atlas Cycle Industries case, the same provision of the Essential Commodities Act, 1955 was under consideration as in the Narendra Kumar case. The Court gave a surprisingly different verdict when it left the tool of literary interpretation to lay down different standards in case of delegated legislations. It held that, “Two considerations for regarding a provision directory are (i) Absence of any provision for the contingency of a particular provision not been complied with and (ii) Serious general inconvenience and prejudice to the general public, if rules are declared invalid. On applying these two principles to the facts in hand, it held that Section 3(6) does not stipulate negative or affirmative resolution by either Houses.

It is not subject to the approval or disapproval of Parliament. Further, the section does not stipulate any period of time or a penalty for non-observance. Hence, simple use of the words “must” or “shall” do not determine the nature of the laying provisions. It is therefore seen that lack of a uniform and general law has lead to very ambiguous interpretations which do not give any clear direction as to the position of law.

Indirect Control This form of control is exercised by the Parliament through its Committees. In 1950, the then Law Minister made a suggestion that Indian Parliament should also have a Committee on the lines of those present in England. Pursuant to this, The Committee on Subordinate Legislation of Lok Sabha was appointed on December 1, which comprised 15 members nominated by the Speaker for one year. The Chairman is appointed by the Speaker from amongst its members. A similar Committee was established in the Rajya Sabha in 1964. In England, it is a rather healthy tradition to appoint the Leader of Opposition as Chairman. The main functions are to examine whether rules comply with the general object of the Act and the Constitution; whether the Act is better equipped to deal with matters delegated in the rules; does the delegated authority deal with imposition of tax.

Conclusion A careful analysis of Indian parliamentary control over delegated legislation will show that it is very weak and undeveloped or rather under-utilized. Reasons for this include lack of legal skills with parliamentarians; lackadaisical attitude of ruling parties; too much dependence on courts for any problem. Generally speaking, any ground on which judicial review may be justified can logically be classifiedas a branch of ultra vires doctrine; here we have dealt with straight forward cases where ultra vires was the solitary or principal justification for judicial review. On the whole, judicial review of delegated legislation is more of symbolic value rather than of muchpractical value as a control mechanism over delegated legislation. To make judicial control moreefficacious it is necessary that delegating legislation does not confer power in two broad andgeneralized language. In such a case the Court may find extremely difficult to hold a rule as fallingoutside the scope of power delegated. This is what is envisaged by the doctrine of excessive delegation.In that case, delegated legislation will be ultra vires if it goes beyond basic policy underlying theParent Act passed by the legislature

Bibliography http://www.lawkgteacher.net/free-law-essays/constitutional-law/parliamentary-control-ofadministrative-rule-making-constitutional-law-essay.php#ixzz45G2pziCs https://www.cshvjdh.com/doc/71912750/Delegated-Legislation http://upsc.ourleducation.in/delegated-legislation/