Delegated Legislation.pptx

Delegated Legislation  Apart from the “Pure” administrative function, the executive performs many legislative and judicial function also. In modern democracies, the bulk of legislation is promulgated by the executive as a delegate of the legislature, and it is known as the “Delegated...

Delegated Legislation  Apart from the “Pure” administrative function, the executive performs many legislative and judicial function also. In modern democracies, the bulk of legislation is promulgated by the executive as a delegate of the legislature, and it is known as the “Delegated legislation”.  According to Salmond, “The expression delegated legislation as that 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.”  According to the M P Jain and S N Jain, the term “Delegated legislation” is used in two sense: (1) exercise by subordinate agency of the legislative power delegated to it by the legislature, or (2) the subordinate rules which themselves which are made by the subordinate authority in the pursuance of the power conferred on it by the legislature.  In simple words, the meaning of the expression “Delegated legislation” may be given as: ‘when the function of legislation is entrusted to organs other than the Legislature itself the legislation made by such organs is called delegated legislation.’ e.g. under the Essential Commodities Act, 1955, certain commodities are listed as ‘essential commodities’ but the list given is not exhaustive and the Central Government is empowered to declare any other commodity as ‘essential commodity’ under the Act.  Reasons for the Growth of Delegated Legislation i) Lack of Parliamentary Time ii) Technicality iii) Flexibility iv) Emergency v) Experiment vi) Expertise vii)Complexity CLASSIFICATION OF ADMISTRATIVE RULE MAKING Broadly delegated legislation may be classified into different forms: i) Title-based classification: Delegated legislation may be in the form of rule, regulations, bye laws, notifications, schemes, order, ordinances, directions etc. These terminologies are confusing because different words are used for the same thing and same words are used for different things. ii) Discretion based Classification (Delegated and Conditional Legislation): Discretion may be conferred on the executive to bring the act into operation on fulfilment of certain conditions such legislation is called conditional or contingent legislation. Its different from the subordinate legislation as in the latter delegation of legislative power is there.  Conditional Legislation may be defined as a statute that provides control but specifies that they are to go into effect only when the administrative authority finds the existence of conditions given in the statute itself. The power to put a date of implementation/ a date to be notified by the Government is a Conditional Legislation, and such a power does not enable a Government to decide whether to bring or not to bring that provision into force. However, no mandamus can be issued against the government to consider/ direct it enforce the legislation. Broadly two categories of Conditional Legislation: a) Future applicability based b) An Act enforced but power to withdraw from operation from a specific area given to government. iii) Authority based classification (Sub-delegation): When the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules, such exercise of rule-making power is known as sub-delegated legislation. Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not allowable, though the legislature can always provide for it. iv) Purpose based classification: Enabling Act Extension and Application of Act Dispensing and Suspending Acts Supplementary Acts Etc. v) Nature-based Classification: a) Normal delegation:- i) Positive- where the limits of delegation are clearly defined in the enabling Act. ii) Negative- where power delegated does not include power to do certain things, i.e., legislate on matters of policy. b) Exceptional delegation:- i) power to legislate on matters of principle ii) power to amend Acts of Parliament  Such exception is known as the Henry VIII clause to indicate executive autocracy. The King of England in the 16th century imposed his autocracy will through the instrumentality of the parliament. Under this clause, very wide range of the powers is given to the administrative agencies to make rules, including the power to amend and repeal the laws.  Henry VIII clauses are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny. The original Henry VIII clause was contained in the Statute of Sewers in 1531, which gave the Commissioner of Sewers powers to make rules which had the force of legislation (legislative power), powers to impose taxation rates and powers to impose penalties for non-compliance. A later Statute of Proclamations (1539) allowed the King to issue proclamations which had the force of an Act of Parliament. Both these were passed during the time of Henry VIII.  In U.K., the Donoughmore Committee (the Committee on Ministers’ Powers), 1932 in its report observed: “the system of delegated legislation is both legitimate by permissible and constitutionally desirable for certain purposes, within certain limits, under certain safeguards.”  Article 372(2) of the Indian Constitution: The classical illustration of Henry VIII clause where the president has been given the power to adopt, amend and repeal any law in force to bring it in line with the provision of the constitution, and exercise of such power has been made immune from the scrutiny of the courts.  In Panama Refining Co. v. Ryan (1934) 293 US, Sec. 9 (c) of the National Industrial Recovery Act (NIRA), 1933 the President was authorised by the Congress to prohibit transportation of oil in interstate commerce in excess of the quota fixed by the state concerned. The policy of the Act was to ‘encourage national industrial recovery’ and to ‘foster fair competition’. The Supreme Court by majority held that the delegation was invalid. According to the court the Congress had not declared any legislative policy or standard.  Mistretta v. U.S. (1989) 488 US - Sentencing guidelines were promulgated by the US Sentencing Commission under the Sentencing Reforms Act, 1984. - Guidelines provided range to determine sentences for categories of offences and offenders according to various factors specified by the commission. - ‘M’ who was indicted for sale of cocaine challenged the Guidelines contending that the Congress has delegated excessive authority to Commission to structure the Guidelines.  The Supreme Court concluded that the contention of the petitioner that the commission had significant discretion in formulating Guidelines could not be disputed. It has also power to determine which crimes should be punished leniently or severely. But that did not mean that there was a no policy. Congress while conferring power on the commission neither delegated legislative powers to the executive nor upset the constitutionally mandated balance of powers among the co-ordinate branches. Delegated Legislation in India Pre-Constitutional Position: - R v. Burah,1878 is considered to be the leading authority on the subject. - By Act of XXII of 1869, the area of Garro Hills was removed from the jurisdiction of civil and criminal courts, and - By Section 9 the Lieutenant-Governor was empowered to extend all or any of the provisions of the Act applicable to Khashi, Jaintia and Naga Hills in the Garros Hills and to fix the date of such application.  Sec 9 was challenged before the High Court as being ultra vires. High Court of Calcutta accepted the contention and held: ‘the Indian legislature was a delegate of Imperial Parliament and therefore further delegation that is (sub- delegation) was not permissible.’ On the appeal Privy Council, it was held that the Indian legislature was not an agent or delegate of the Imperial Parliament it had plenary powers of legislation as those of the Imperial Parliament itself.  Governor was not authorized to pass a new legislation, but merely to extend the application of the legislation passed by the competent legislature. It was a case of Conditional Legislation. In Jatindra Nath Gupta v. Province of Bihar AIR 1949 FC. - Bihar maintenance of public order Act 1948 was to remain in force for one year. - However the power was conferred on the provincial government to extend the operation of the Act for a further period of one year.  By majority, of the federal court held that the power to extend the operation of the act beyond the period of 1 year was a legislative act and therefore, could not be delegated. However in a dissenting Judgment, Fazl Ali, J upheld the said provision as the extension of the Act, for a further period of 1 year could not amount to its re-enactment. It merely amounted to a continuance of the Act for which the maximum period was an contemplated by the legislature itself. (dissenting opinion was approved in Sardar Inder Singh v. S. of Rajasthan, AIR 1957, SC)  Post-Constitutional Position: - In re Delhi Laws Act, 1912 case (AIR 1951 SC) - A reference was made to the SC by the President of India under Art. 143 of the Constitution of India. - The Reference: - [Is it permissible for the legislature to delegate legislative power to a subordinate authority – limits within which this could be done] - The Supreme Court was called upon to decide the legality of the below mentioned provisions: - Central Government was authorised by Section 2 of the “Part ‘C’ States ‘Laws’ Act, 1950” to extend the laws to any “Part ‘C’ State” with such modifications and restrictions as if thinks fit, any enactment in force in a Part ‘A’ State; and - While doing so it could repeal or amend any corresponding law “other than a Central Act” which might be in force in ‘Part C State’.  Part A states were Bombay, Madras, Assam, Bihar, Madhya Pradesh (earlier Central Provinces and Berar), Punjab (earlier East Punjab), Uttar Pradesh (earlier the United Provinces), Orissa, and West Bengal. (These states were ruled by an elected governor and state legislature.) Part C states were Ajmer, Bhopal, Bilaspur, Coorg, Delhi, Himachal Pradesh, Cutch, Manipur, Tripura, and Vindhya Pradesh. (These states were governed by a chief commissioner.)  The majority held the provision valid subject to two limitations: The executive cannot be authorized to repeal a law in force and thus, the provision which empower the central government to repeal a law already in force in the part C state was bad. By exercising the power of modification, the legislative policy should not be changed and thus, before applying any law to the part C state the central  After the Delhi Laws Act case, in Hamdard Dawakhana v. Union of India, 1960 Supreme Court was probably the first case in which Central Act was held ultra-virus on the ground of excessive delegation to stop the Drugs and Magic Remedies Objectionable Advertisements Act, 1954 was enacted by Parliament to control advertisement of certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited and authorised the central government to include any other disease in the list. The supreme court held Section 3 as invalid as no criteria, standards or principles had been laid down their in, and the power delegated was unguided and uncontrolled.