Analysis of Nature of Delegated Legislation

    “Change is the law of life, and those who look only to the past or present are certain to miss the future” John F. Kennedy.

    With the change in time, the law must also keep pace with it. In the present scenario, there is no more prevalence of police state in India. The country has transformed itself into a progressive democratic state. The features of a police state that separate the functionalities of a democratic state is that in a police state having dissenting political views is not considered a healthy criticism. A police state displays features of totalitarianism or other oppressive means of social control.  A democratic state endeavours to protect social security and social welfare. In short, the modern state takes care of its citizens from ‘cradle to grave’. The developments have enlarged the span of administrative law. The socialist approach can also be witnessed by Articles in Directive Principles of State Policy like 39A, 39B. In the welfare, state some functions of the legislature, executive, the judiciary are vested with the administrative branch. The power is vested on the administrative body to carry forward the demand of the welfare state. Article 38 entails to pro­mote the welfare of the people and Article 43 also endeavours to secure a living wage and a decent standard of life for all workers. The article is a detailed explanation of analysis of nature of delegated legislation.

    One example of Article 38 and Article 43 can be the public distribution systems (PDS) objectives of providing food security to poor people and checking against the surge in market prices.

    Power can be exercised in two ways. One for the betterment of society by rendering development. On the other hand, if power is abused it will have severe adverse repercussions. Hence, there are some theories to control adversely exercised discretionary power, that is as follows:

    1.   Red Light Theory – Red light theory ensures that the discretionary power vested in administrative authority is checked by judicial control. For instance articles 32, 226, 136.
    2. Green Light Theory – Green light theory ensures that the discretionary power vested in administrative authority is checked by any other consultative process rather than court mechanisms. One example can be the departmental process.

    Amber Light Theory – Amber light theory advocates for bringing a point of consensus between the above two discussed theories. The theory applies both the positive elements of Red as well as Green light theories. In this theory, it is believed that for effective administration internal as well as external mechanisms must be encouraged [1].

     Sources of Administrative Law

    In India, there is no codification of administrative law. The subject is based on judge-made laws.

    Whereas in the UK there are several legislations that govern the administrative law. Few examples can be – the Statutory Instruments Act, 1946, the Crown Proceedings Act, 1947, Tribunals and Enquiries Act, 1958.

    Classification of Administrative Actions

    1.   Quasi-Legislature: They are also known as delegated legislation.
    2.   Administrative: These are residuary powers. In short means functions that are left after taking away by legislature and judiciary.
    3. Quasi-judicial: It is a non-judicial body having the function of interpreting the laws. An example can be tribunals. The procedure of a quasi-judicial body corresponds to a court of law.
    4. Pure Ministerial: These are actions in which the administrative branch is not acting as a discretionary power but as an official requirement. [2]

    Quasi-legislative and Judicial Powers

    Quasi-legislative prescribes a future pattern of conduct and creates new rights and liabilities.

    Judicial action determines rights and liabilities which is based on present or past facts and declares the pre-existing rights and liabilities.

    In quasi-legislative action, determination on general applicability to indicated but unnamed and unspecified persons and individuals and unspecified persons and individuals. For instance, there is no mention of the name of the parties. The government passes the law without indicating or specifying the name.

    In judicial action decisions that are specific in their application are addressed to particular individuals and situations.

    Quasi-legislative and Administrative Action

    Quasi-Legislation – Process of formulating a general rule of conduct without reference to particular cases and usually for future operation.

    Administrative Action – Process of performing particular acts or of making decisions involving the application of general rules to particular cases.

    Effect of Determination of Quasi-legislative Action

    The rules of natural justice do not apply to quasi-legislative actions but reasonableness and fair play apply as per Article 14.

    Quasi-legislative action has to be published. The duty to give reasons is applicable to administrative action but not to quasi-legislative actions.

    Delegated Legislation/Quasi-Legislation

    In delegated legislation, a certain portion of powers from the legislative to another branch is given. Through the transfer of power, the executive makes laws, making laws will be under the authority of the legislature.

    According to Salmond – “Delegated legislation proceeds from any authority other than the sovereign power and it is, therefore, dependent for its continued existence and validity on some superior power”.

    The sovereign must perform essential legislative functions. This means the enactment of the laws and framing the legislative policy but leaving the action of supplying the details to the subordinate authority.

    Need for Delegated Legislation

    There can be several reasons for the growth of delegated legislation. Some of them are:

    A technicality in the matters: With the passage of time, matters unwind in a complex manner. So, it requires meticulous study, and the government is already under pressure under work. So to comprehend the technical topics, the legislature needs the expert.

    Flexibility: Parliamentary procedure is quite slow and time-consuming. Moreover, it requires a mechanism to expedite the enacting of laws and through delegated legislation, it can be made expeditiously.

    Emergency: During the time of emergency it is the need of the hour to have a mechanism that has a less procedural requirement in enacting laws. Parliamentary procedures are time taking. Here, Delegated legislation fulfils that requirement.

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    Excessive Delegation

    A law defined on the basis of excessive delegation must be scrutinized to the following two tests:

    1.   Whether  there is a delegation of essential functions
    2.   Whether the legislature has outlined its policy and principles for the guidance of the executive.

    Following things can be referred to by the courts in order to ascertain whether particular legislation suffers from excessive delegation or not:

    1. The subject matter of law
    2. Provisions of the statute including the preamble
    3. Scheme of the law
    4. Factual and circumstantial background in which the law has been created

    Permissible and Impermissible Delegation [3]

    1. Permissible Delegation
    2. Commencement Clause
    3. Supplying Details
    4. Inclusion Clause
    5. Exclusion Clause
    6. Framing of Rules
    7. Modification and Henry VIII Clause
    8.  Impermissible Delegation
    9. Essential Legislative Functions
    10. Repeal of Law
    11. Retrospective Operation
    12. Ouster of Jurisdiction
    13. Offences and Penalty
    14. Modifications and Henry VIII Clause
    15. Commencement clause –  It is generally the second or third section of a statute. The clause signifies the time when the act will come into effect.
    16. Inclusive and exclusive clause – A statute can be enlarged or reduced through the delegated legislation. An example of an inclusive clause is the essential commodities act. The executive has the power to add the lists that are essential commodities. Example of exclusive clause Section 36 of  The Payment of Bonus Act.
    17. Modification and Henry VIII Clause – Subordinate authority have the authority to make changes in parent act. Modification and Henry VIII clause are also included in the impermissible delegation. Whether it is permissible or not it depends on the degree of change. If modification leads to big amendments or changes in the legislative policy then cannot be delegated. Henry VIII clause allows the administrative branch to remove any difficulty in implementation of the parent act. When applied in widest form Henry VIII clause is not allowed and when in a limited manner than allowed executive power of delegation. It actually, i.e application depends on case to case.
    18. Offenses and Penalty –The definition of offences and penalty is decided by the legislative.
    19. The Ouster of the jurisdiction of courts – This function cannot be given to subordinate authority.

    In article 312 of the Constitution of India, the power of delegation can be observed. In the case of D.S Grewal v. State of Punjab [4], it was opined that article 312 gives the authority of delegation and therefore the delegated powers cannot be taken away.

     Criticism Of Delegated Legislation

    Some criticisms are –

    1. The delegated powers are vested on the authorities who are not elected by the people. Hence, against the essence of democracy.  The essence of democracy is at more peril when a large number of laws are made through delegation. As sometimes delegation is needed for the hour. Which can also be observed in the case of Arvinder Singh v. State of Punjab[5], that the complexities of modern administration are so intricate with details, that exigencies of the situation require delegation of some part of legislative power.
    2. The laws made by legislatures are publicized. Delegated legislation generally suffers from a lack of publicity. As the laws are not notified to the public.

    Conclusion  

    In welfare, state delegation has become necessary but it needs to be ensured that the delegated power is not exercised arbitrarily. It has to be exercised based on the permissible limits. If the power that is vested in the executive authority is not exercised properly it might lead to a tyrannical government. Delegation is considered to be a rational basis for administrative efficiency if restored within proper limits. The delegation should not be uncontrolled. Parliament and State Legislatures cannot relinquish the legislative power in its key aspects. It is only a non-essential legislative function that can be delegated.

    REFERENCES

    [1] Carol Harlow and Richard Rawlings, “Red and green light theories”, Cambridge University, 1-10 (2009), available at: http://assets.cambridge.org/97805217/01792/excerpt/9780521701792_excerpt.pdf (Last visited on 28/12/2020).

    [2] Megha Pandey and Harsha Tiwari, “Classification of Administrative Functions”, Lawordo (2019), available at: https://www.lawordo.com/classification-of-administrative-functions-as-purely-legislative-administrative-and-judicial/ (Last visited on 28/12/2020).

    [3] Surabhi Parihar, “Permissible Ambit of Delegated Legislation” Tax Management (2020).

    https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=9446 (Last visited on 28/12/2020).

    [4] 1959 AIR 512.

    [5] [1998] INSC 386. 


    BY KAJAL PRIYA | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI 

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