Delegated Legislation (Control and Safeguards) | Administrative Law - CLAT PG PDF Download

Introduction

Parliament may not fully grasp the extent of delegation it has embraced, the functions it has relinquished, or the potential for abuse in this practice. The current debate is not about the desirability of delegated legislation, but about the necessary controls and safeguards to prevent misuse of the rule-making power granted to the administration.

• Justice Subbarao points out that it is the court's responsibility to determine, through a fair and liberal interpretation, whether the legislature has overstepped its bounds. However, courts should not stretch this interpretation to justify arbitrary powers given to executive authorities. While delegating legislative powers to the executive is permissible within certain limits, there is a significant risk of abuse. Therefore, the core issue is how to regulate the executive's exercise of these powers.
• A balance must be struck between allowing broad delegation for practical reasons and preventing the transfer of essential legislative functions to administrative bodies. Delegated legislation is now a necessity, but the question of control is pivotal.

Control Mechanisms

1. At the source, by incorporating safeguards when the legislature grants legislative power to the executive.
2. Post-authorization, by establishing safeguards to address potential misuse or abuse of power by the executive.

Controls over delegated legislation can be categorized into three types:

1. Judicial control
2. Legislative control
3. Other forms of control

Judicial Control

• In India, judicial review of administrative rule-making follows the same principles as the review of administrative actions. However, the criteria for judging the constitutionality of a statute differ from those for subordinate legislation. Subordinate legislation does not enjoy the same level of immunity as a legislative Act. Judicial review of administrative rule-making cannot be restricted by the enabling Act.
• In the case of State of Kerala v. Unnikrishnan (2007), it was established that judicial review of administrative rule-making is not limited by the enabling Act. Similarly, in the case of State of Kerala v. KMC Abdullah and Co. (AIR 1965 SC), the Supreme Court ruled that the validity of rules can be challenged even with phrases like "shall not be called in question in any court" in the enabling Act. In General Officer Commanding-in-Chief v. Subhash Chandra Yadav (1988), the Supreme Court also affirmed that an Act stating that rules made under it would be "as if enacted" in the Act does not eliminate judicial review.

Constitutionality of the Parent Act

• There is a presumption in favor of the constitutionality of laws, and a law will not be declared unconstitutional unless the case is clear and free from doubt. When the validity of a statute is questioned, if there are two interpretations—one making the law valid and the other void—the former should be preferred. The court's role in determining the constitutional validity of a statute is not to assess its wisdom or justice but to ensure that it falls within the legislative power and does not violate any restrictions on that power.
• In the context of judicial control over delegated legislation, the first question that may arise is the constitutionality of the parent statute under which legislative powers have been delegated to the administration. If the delegating statute is unconstitutional, the delegated legislation derived from it will also be invalid.

The parent Act may be deemed unconstitutional on various grounds, such as:

1. Excessive delegation
2. Breach of Fundamental Rights
3. Any other reason, like the distribution of powers between the Centre and States

Constitutionality of Delegated Legislation

There is a presumption in favor of the constitutionality of both statutes and delegated legislation. It is only in cases of clear violations of constitutional provisions or the parent statute that the court should declare delegated legislation unconstitutional. Courts may need to assess the constitutionality of delegated legislation, as it is possible for the parent statute to be constitutional while the delegated legislation conflicts with constitutional provisions.
Instances illustrating this point include:

1. In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh AIR, 1954, certain provisions of the UP Coal Control Order, 1953, made under Section 3(2) of the Essential Supplies Act, 1946, were declared ultra vires for infringing Art. 19(1)(g), a fundamental right.
2. In Rashid Ahmed v. Municipal Board, 1950, certain municipal bye-laws were deemed invalid under Article 19(1)(g).
3. In Narendra Kumar v. Union of India, 1960, the Supreme Court discussed the constitutionality of delegated legislation made under a valid Act. The Non-Ferrous Metal Order, 1958, was issued under the Essential Commodities Act, 1955. The validity of the Essential Commodities Act was upheld in Hari Shankar Bagla v. State of Madhya Pradesh AIR, 1954. The court in Narendra Kumar determined whether the order made under the Act could be challenged under Art. 19(1)(g). The court concluded that while the law may not be unconstitutional, an order made under it could still be contested constitutionally because the law could not be presumed to authorize anything unconstitutional.
4. In Air India v. Nargesh Meerza AIR, 1981, the Supreme Court declared certain regulations regarding air hostess service conditions in India and the Central Government's undertaking as discriminatory under Art. 14 of the Constitution.
5. The Bar Council's rule under the Advocates Act, barring the enrolment of a person as an advocate if engaged in any other profession, was upheld as it did not violate Art. 14 of the Constitution.