Constitutionality Of Administrative Rule Making And Its Control Mechanism Part 2

20th February, 2024 - 10:41 am Categories: Constitutional Law 0 Comments

INTRODUCTION

Traditionally, the basic function of the executive was to administer the law which was enacted by the legislature and the legislative power must be exercised exclusively by the legislators directly responsible to the electorate. But in recent times, in all democratic nations, a trend that is currently quite popular is that only a small portion of the total legislative output emanates directly from the legislature. The main reason behind this development is the changing nature of state, which seeks to ensure social security and social welfare for the common man, regulating the industrial relations, control over the production, manufacture and distribution of essential commodities and tries to achieve equality for all and ensures equal pay for equal work.

The concept of delegated legislation is not novel in India. Ever since the statute came to be enacted by Parliament, there was delegation of legislative function. But, with the changing time and significant expansion in the functions of the legislature, the Parliament and the state legislatures have neither time nor expertise to deal with such technical and situational intricacies. Thus, in such cases, delegated legislations become essential and inevitable.

WHAT IS ADMINISTRATIVE RULE MAKING OR DELEGATED LEGISLATION

In simpler terms, delegated legislation refers to all rule-making which takes place outside the legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications, etc. Delegated legislation can be defined as legislative power which proceeds from any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority.^[i] In other words, Delegated or subordinate legislation comes into play when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature on it.^[ii] Delegation is considered to be a sound basis for efficiency in administration and it does not by itself amount to abdication of power if restored to within proper limits. The legislative authority that is to be exercised by Parliament and State Legislatures cannot be relinquished in its fundamental components. The distinction between essential and nonessential legislative tasks is always a moot point, because only non-essential legislative functions may be delegated.

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Delegated legislation is a law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of the primary legislation. Often, a legislature passes statutes that set out broad outlines and principles, and delegate authority to an executive branch official to issue delegated legislation that set out the details about substantive regulation and provide procedures for implementing the substantive provisions of the statute and substantive regulations or procedural regulations. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By giving the authority for legislation to be delegated, the Parliament enables other persons or bodies to provide more details to an act of Parliament. Thereby, the Parliament, through primary legislation, i.e. the act of Parliament, permits others to make laws and rules through delegated legislation.

 CONSTITUTONALITY OF ADMINISTRATIVE RULE MAKING

The phrase “constitutional validity of administrative rule making” refers to the permitted range within which the legislature, which is legally speaking the only body with the power to make laws, may legitimately transfer rule-making authority to other administrative agencies. Due to the shift from laissez faire regime to a welfare state concept, there has been a tremendous expansion of the government’s authority. And due to this shift, the new role of state can only be fulfilled through the use of greater power in the hands of the government which is best suited to carry out the social and economic tasks of the country. However, this increase in power of the government can be successfully dealt by delegating the legislative power to the subordinate authorities. Our constitution does not prohibit the delegation of powers to other authorities; however, it gives rise to a question of the constitutionality of this power of delegation. The constitutionality of delegated legislation is determined by the extent to which this power of rule-making can be conferred on the subordinate authorities.

To describe the question of permissible limits within which the power to make legislation can be delegated, we need to look at two phases, i.e. pre independence and post-independence period.

1. PRE-INDEPENDENCE PHASE

The constitutionality of delegated legislation was first discussed in the case of Queen v. Burah^[iii], where Privy Council was the highest court of appeal. The act in dispute gave certain powers to Lt. Governor namely- the power to bring the act in effect, determine what laws were to be applicable and power to extend the application of the act (Sec. 9). The act was enacted to remove Garo hills from the jurisdiction of civil and criminal courts and extends all or any provisions of the act in Khasi, Jaintia and Naga Hills in Garo Hills. The question was whether giving Lt. General power to extend the application of law is delegation of power? Here, the Privy Council observed that the Indian Legislature is not an agent or delegate as against Calcutta High Court^[iv] but was intended to have plenary powers of the legislation, and of the same nature of the Parliament itself. It was observed that the Indian Legislature had exercised its judgement as to the place, person, law, powers and what the governor was required to do was to make it effective upon fulfilment of certain conditions. This is what is known as Conditional legislation which was upheld by the court. Even after years, when the Federal Court was the court of appeal, it held in the case of Jatindra Nath v. Province of Bihar^[v] that there could be no delegated legislation in India beyond Conditional legislation. Provincial government could by notification was allowed to extend the time for which the Bihar Maintenance of Public Order Act 1948 was to remain. The court held this power as non-delegable.

2. POST INDEPENDENCE PHASE

After independence, there has been a great perplexity in regards to delegated legislation, whether it is conceivable and up to what degree. To clear up this, the President of India alluded this inquiry to the summit court under Article 143 of the Constitution. In the case of In re Delhi Laws Act,^[vi] there were three substantial questions as follows- Was section 7 of the Delhi Laws Act, 1912, ultra vires the legislation which passed this act, Was the Ajmer – Merwara (Extension of Laws) Act, 1947, ultra vires its parent legislation and Is Section 2 of the Part C States (Laws) Act, 1950, ultra vires the Parliament.? In the first two cases, the power to delegate was held to be valid by the court and in the third case, Section 2 of the Act was held valid nut the power to repeal or amendment of any corresponding law which was for the time being applicable to Part C was void and was held to be excessive delegation. The case was of utmost importance on two grounds; on one hand it permitted delegated legislation while on the other it demarcated the extent of such permissible delegation of power. The court gave 7 different views on the case, with unity on two points, i.e., the Parliament and state legislatures have to delegate the power in order to deal with multiple problems prevailing in the country, as it is impossible to come up with complete and comprehensive legislation on all the subjects, and, since the legislature derives its power from the Constitution, excessive freedom cannot be granted and limitations are required. The judges differed on majorly two points, which is what should be the permissible limits within which the Indian Legislature could delegate its powers, and that the Legislature cannot delegate its essential functions.

After In Re Delhi Laws Act, the question arose related to the limits of delegation and the grounds for the same. In Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax^[vii] section 8(2)(b) of Central Sales Tax was in question and excessive delegation was challenged on the grounds that no such policy was laid down in the parent act. The act was thus held to be valid and J Khanna gave the “Standard Test”- when legislature confers powers on an authority to make delegated legislation, it must lay down policy, principle or standard as a guideline for the authority concerned. Also, J Mathew gave the “Abdication Test”- as long as the legislature can repeal the parent act conferring power on the delegate, the legislature does not abdicate its powers. Based on his test, J Mathew held the legislation valid in the case of N K Papiah v. Excise Commissioner^[viii] where the power conferred by the act was in question. Similarly, in Brij Sunder v. First Additional District Judge^[ix] the court even allowed the extension of future laws of another state to which the adopting state legislature never had an opportunity to exercise its mind.  Additionally, in Registrar of Co-operative Societies v. K Kanjambu,^[x] the court upheld the “Policy and Guideline Test”. Hence, all these cases upheld the constitutional validity of the delegated legislation.

Author: Ipsita Sinha, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] Salmond, Jurisprudence (12^th Edn.) 116.

[ii] Halsbury’s, Laws of England, Vol. 44 (4^th Edn.) 981-84.

[iii] 1878 3 AC 889

[iv] Empress v. Burah and Book Singh, I.L.R. 3 Cal. 64

[v] (1949) 2 FCR 595

[vi] 1951 AIR 332

[vii] (1974) 4 SCC 98

[viii] (1975) 1 SCC 492

[ix] (1989) 1 SCC 561

[x] (1980) 1 SCC 492