2.3.
Control of Delegated Legislation in India-Parliamentary Control,
Procedural Control Judicial Control and Doctrine of Ultra vires, Effect
of an Ultra vires administrative legislation.
Delegated legislation, also known as subordinate or secondary legislation,
refers to laws or regulations enacted by an authority or body under powers
given to them by an Act of Parliament. In India, the control of delegated
legislation is crucial for several reasons:
1. Checks and Balances: To ensure that the executive does not misuse or
exceed the powers conferred by the legislature, thereby maintaining a
balance between different branches of government.
2. Prevention of Abuse of Power: By scrutinizing delegated legislation,
potential abuses of power by administrative authorities can be
prevented.
3. Democratic Accountability: Delegated legislation must be subject to
control to maintain the principle of democratic accountability. The
legislature, which is elected by the people, needs to have oversight
over the laws that affect citizens.
4. Legal Certainty and Clarity: Proper control mechanisms ensure that
delegated legislation is clear, consistent, and within the scope of the
authority granted by the parent Act.
5. Protection of Fundamental Rights: To ensure that delegated legislation
does not violate fundamental rights enshrined in the Constitution.
6. Democratic Oversight: Since delegated legislation is made by non-
elected officials, it is crucial to have mechanisms in place to ensure
that it aligns with the intentions and principles established by the
elected legislature.
7. Ensuring Compliance with Primary Legislation: Control mechanisms
help ensure that delegated legislation is consistent with the primary
legislation (acts of Parliament or statutes) under which it is made.
8. Quality and Consistency: Effective control ensures that delegated
legislation is drafted clearly, consistently, and in a manner that serves
the public interest.
Under Delegated Legislation there are mainly three kinds of control
mechanism:
1. Parliamentary Control
2. Judicial Control
3. Executive Control or procedural control
1. Parliamentary Control or legislative control
Under parliamentary democracy it is a function of the legislature to
legislate, and it’s not only the right but the duty of the legislature to
look upon its agent, how they are working.
In India “Parliamentary control” is an inherent constitutional function
because the executive is responsible to the legislature at two stages of
control.
1. Initial stage
In the Initial stage, it is to decide how much power is required to
be delegated for completing the particular task, and it also
observed that delegation of power is valid or not.
2. Direct and Indirect stage
Now, the second stage consists of two different parts.
Direct control
Laying is an important and essential aspect under direct control and it
is laid down as per the requirement which means that after making the
rule it should be placed before the Parliament. It includes three
important part as per the degree of control needs to be exercised.
Simple Laying-the rules and regulations come into effect as soon as
they are laid down before the Parliament.
Negative Laying-In this type of laying, the rule Come into effect as
soon as they were placed before the parliament but cease to have
effect if they are rejected by the parliament within 40 days.
Affirmative Laying-In this type of laying, the rules have no effect
until by they are approved by a resolution of both the houses of
parliament.
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern
to guide the rule into impact then in such a case laying need is
mandatory.
Where the provision is mentioned that the rules should be drafted in a
particular format then it becomes mandatory to follow the format.
Test of Directory – Where the laying need is next to enforce the rule
into operation then it will be directory in nature.
Indirect control
This is a control exercised by Parliament and its committees. Another
name for such type of committee is Subordinate legislation. The main
work of the committee is to examine:
a. Whether rule are according to general object of the act.
b. It bars the jurisdiction of the court in direct or indirect
ways.
c. Whether it has retrospective effect or not.
d. Whether it safeguard or destroy the Principle of Natural
Justice.
e. Expenditure involved in it is from Consolidated fund.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it
mandatory for the executive to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely
defeat the actual objective of the act. Hence, procedural control means that
under Parent act certain guidelines are given which need to be followed while
whether it is mandatory or directory to follow it or not. It includes three
components:
a) Pre publication and consultation with an expert authority.-it is
mandatory that the rules made should be published in draft. Form in
the Gazette in India. Objections & suggestions should be invited from
the public and the objection& suggestions received should be
considered by rule-making Authority.
b) Publication of delegated legislation.-There is a well known Principle of
Law “Ignorantia Juris Non-Excusat- ignorance of law is not an excuse).
But there is another important principle that the public should have
access to law as well . It is very important to publish the laws made by
the delegated legislation or by the authority so that the public knows
about it.
c) Laying of rules.-laying of rules before the parliament.
It can be either Mandatory or Directory, to know, certain specified
parameters are given:
a. Scheme of the Act.
b. Intention of Legislature.
c. Language used for drafting purpose.
d. Inconvenience caused to the public at large scale.
Judicial control
The court has to see that the power delegated is within the ambit of the
constitution as prescribed. Judicial review is more effective because court do
not recommend but it clearly strikes down the rule which is ultra vires in
nature. As per Section 13(3)(a) “Law” is defined under the Constitution of
India which clearly indicate that State should not make any law which
abridge the right given in Part iii of the Constitution. It is dependent on two
basic grounds:
It Is ultra vires to the Constitution of India, and
It is ultra vires to the enabling Act.
There control mechanism ensuring that delegation having a crucial role in
legislation stays within the legal boundaries, respects constitution, and
upholds legality and fairness.
→ when the parent act itself violates the provision of the constitution, it is
considered void and unconstitutional.
→ In such cases, any delegation of legislative powers made under the parent
act also rendered as void.
→The Counts have the authority to strike both the parent act and the
delegated legislation if they are found to be in violation of constitutional
provisions.
Grounds for judicial control
Delegated legislation not authorized by the enabling act: Delegated
legislation derives its authority from the enabling act, which sets out the
scope and limits of the delegated powers. If the delegated legislation
exceeds the authority granted by the enabling act, it can be invalidated by
the courts.
Delegated legislation is ultra vires the constitution: In certain cases,
the parent act may be constitutional, but the delegated legislation made
under it may violate the constitution. The courts examine the
constitutionality of the delegated legislation separately from the parent act
and ensure that it does not exceed the limits imposed by the constitution.
Delegated legislation is ultra vires the parent act: The validity of
delegated legislation can be questioned if it is found to be beyond the scope
of the powers granted by the parent act. The courts examine whether the
delegated legislation stays within the boundaries set by the parent act. If the
delegated legislation exceeds the authority conferred by the parent act, it
can be deemed ultra vires and invalidated by the courts.
Delegated legislation is ultra vires any general law or rule of law:
Delegated legislation can be challenged if it contradicts or renders an
existing law unlawful.
Unreasonableness: If delegated legislation is considered unreasonable
based on the circumstances of a particular case, it may be invalidated by the
courts.
Mala fide (bad faith): Challenging delegated legislation on the grounds of
bad faith or ulterior motives is challenging to prove. However, in rare cases
where there is strong evidence of bad faith or improper motives, it can be a
basis for invalidating the legislation.
Doctrine of Ultra vires, Effect on administrative legislation.
Doctrine of Ultra Vires means beyond the scope, power or authority of any
company, corporation or statutory body. The term Ultra Vires implies absence
of capacity or power of the person to do any act.
The doctrine of Ultra Vires has two principles bases or aspects and the bases
of doctrine of ultra vires are the method or approaches to control the
delegated legislation by the judiciary. 1. Substantive Ultra Vires
2. Procedural Ultra Vires
