Administrative law unit 2 notes

Q.) what is delegated legislation and explain the various control of delgated legislation?
Control machenism(procedural,judicial and legislative control)
 Delegated legislation is a process by which the executive authority is given
powers by primary legislation to make laws in order to implement and administer
the requirements of that primary legislation.
 Such law is the law made by a person or body other than the legislature but with
the legislature’s authority.
 Legislation by any statutory authority or local or other body other than the
Legislature but under the authority of the competent legislature is called
Delegated legislation.

 It can be said that it is the law made by any person or authority under the power of parliament.
It is also known as subordinate legislation in administrative law.
 It allows the bodies beneath the primary authority or legislature to make laws according to the
requirement.
 Through an act of Parliament, Parliament has full authority to permit any person or authority to
make legislation. An act of parliament creates a framework of a particular law which tends to be
an outline of the purpose for which it is created.
 The important object of this is that any legislation by such delegation should be according to the
purposes as laid down in the act.
 Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules
framed which violates the Parent Act are illegal. Rules framed which violates any other statute
should also be considered as void. Delegated legislation made with mala fide intention is also
considered illegal.

Classification of Delegated Legislation

Power to bring Act into Action As it is already given that in a specified date this Act will come into
force prescribed by Central or State Government by giving a notice in the Official Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the Act
into force and it should not be excessive in delegated power of legislation. So, here the court rejected
the contention that the power was excessive in nature as per prescribed. It was practically difficult for
enforcement. Therefore, power is given to the executive authority to decide the date of enforcing the
act.

Conditional Legislation the rules are framed or designed by the legislature but to implement or
enforce it, is done by the executive organ, so executive has to look that what all conditions need to be
fulfilled to bring it in operation. If all conditions are satisfied then it is well and good otherwise notice
will be issued to bring the law into operation and it is known as Conditional Legislation.

Condition legislation is of following types

 Power to bring the act into action.

 Power to extend the time period or life of the act.
 Power to extend the application of the act to any territory and to make restriction or make
an alteration in the act itself.
 Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the legislature and pass on
to the executive to fill up with all the necessary blanks or elements needed by the subordinate
legislation.
Power face in removing difficulties – Power to modify the statute maybe given to the government by
removal of difficulties clause.

Factors responsible for the rapid growth of Delegated Legislation

 Pressure on Parliament – The number of activities in states is expanding which requires law
and it is not possible for the Parliament to devote sufficient time to every matter.
Therefore for this, the Parliament has made certain policies which allows the executives
to make laws accordingly.
 Technicality – Sometimes there are certain subject matters which requires technicality for
which there is a requirement of the experts who are professional in such fields and
members of Parliament are not experts for such matters. Therefore, here such powers are
given to experts to deal with such technical problems like gas, atomic, energy, drugs, etc.
 Flexibility – It is not possible for the Parliament to look after each contingency while passing
an enactment and for this certain provisions are required to be added. But the process of
amendment is very slow as well as the cumbersome process. Thus, the process of
delegated legislation helps the executive authority to make laws according to the
situation. In the case of bank rate, policy regulation, etc., they help a lot in forming the
law.
 Emergency – At the time of emergency, it is not possible for the legislative to provide an
urgent solution to meet the situation. In such case delegated legislation is the only
remedy available. Therefore, in the times of war or other national emergencies, the
executives are vested with more powers to deal with the situation.
 The complexity of modern administration – With the increasing complexity in modern
administration and the functions of the state being expanded and rendered to economic
and social spheres too, there is a need to shift to new reforms and providing more powers
to different authorities on some specific and suitable occasions. In a country like
Bangladesh, where control over private trade, business or property may be needed to be
imposed, and for implementation of such a policy so that immediate actions can be taken,
it is needed to provide the administration with enough power.
And so, therefore for immediate and suitable actions to be taken there has been an immense growth
of delegated legislation in every country and being that important and useful it becomes a non-
separable part in the modern administrative era.

Advantages of Delegated Legislation

 Save time for the legislature.

 Allow for flexibility.
 Expert opinion is required in legislation.
 Parliament is not always present in the session.
 Used as an experimental basis.
 It is restored to use it in a situation of emergency.
 Can be easily Settle down with consulting the required party of the case.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control
3. Executive or Administrative Control
Parliamentary 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.
 It is a fact that due to a delegation of power and general standards of control, the judicial control
has diminished and shrunk its area.
 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
2. Direct and Indirect 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.

Now, the second stage consists of two different parts.

1. Direct control
2. Indirect control

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.

1.Simple laying

In this, the rules and regulations come into effect as soon as they are laid before the Parliament. It is
done just to provide information to the Parliament, the consent of the Parliament with respect to its
approval for the rules and regulations is not required.

2.Negative laying

The rules come into force as soon as they are placed before the Parliament but do not

have effect if not approved by the Parliament.

3.Affirmative laying

The rules made shall be of no effect unless approved by both the Houses of the Parliament.

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

1. Whether rule are according to general object of the act.

 2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. 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:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.

Judicial Control

Judicial review upgraded the rule of law. 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:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.