|VOLUME 2|SPECIAL ISSUE|SEPTEMBER 2018|ISSN: 2581-3595|
COMPARATIVE ANALYSIS: CONSTITUTIONALITY OF DELEGATED LEGISLATION AND JUDICIAL CONTROL
AUTHORED BY: MR. AMIT KUMAR VERMA, B.A.LL.B (HONS), STUDENT AT NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL.
COMPARATIVE ANALYSIS: CONSTITUTIONALITY OF DELEGATED LEGISLATION AND JUDICIAL CONTROL
Constitutional law is the mother of administrative law; most of the concepts of administrative law are derived from the constitutional law. The recent development in administrative law has been seen through the rise of delegated legislation throughout the world. The reason for this developing concept is the need of several laws for a proper administration and welfare of society. The legislature by enacting the parent statute transfers the law making power to an administrative authority and such authority exercises the power as provided to it. At the time when the concept of delegated legislation was adopted by several countries, its Constitutional status was a major issue. The Judiciary throughout the world adjudicating upon this issue came up with the conclusion that delegated legislation is held to be constitutionally valid when it is intra vires and in accordance with the provisions of the constitution or equivalent document. Judiciary while determining whether the delegated legislation is ultra vires or intra vires considers three conditions: constitutionality of the parent act; constitutionality of delegated legislation and; exercise of the delegated power provided by the parent act. The three principle of Dicey, i.e. law made by legislature, not in mala fide manner, and independent judiciary to look into the matter; is well being incorporated in the provisions of delegated legislation as mentioned above. In this way, the concept of Rule of Law and Judicial Review is applicable to delegated legislation. Delegated legislation is an organic concept which evolves time to time. Even though there have been a number of interpretations on constitutionality of delegated legislation, there exist several loopholes and it is very essential to fill up those loopholes either by the way of legislative enactment or judicial control.
“Constitution is a document or the set of laws which defines the state, provide relation between state and government authority, provide the power to the organs of government to do their functions, gives power to frame the laws.” It is not only a document but it is the soul of any country through which system is governed. “Whereas the constitutional law is the collection of statutory interpretation of laws which is violating the provision of constitution and case law that is based on, concerns, or interprets a constitution.” The basic concept of the constitutional law is limited government and proper administration. To regulate administration in the State a set of law is created by the court known as Administrative law.
“Administrative law is that branch of public law which deals with the various organ of sovereign power considered as in motion; prescribe in detail the manner of their activities and working.”Administrative law specially looks into the matter of allocation of power and limitation of the arbitrary and unlawful use of that power. Administrative law drives its validity from the constitution and it puts the limitation on it. According to Wade, “Administrative law is the law relating to the control of the administrative power.” According to him the primary object of the administrative law is to keep powers of the government in their legal bound to protect the citizens from their abuse.
A French scholar, Montesquieu, gave the principles of separation of power. He found that if the power is vested in a single organization then it will create tyranny of that organ. He therefore felt that the governmental power should be separated among three organs of the government, the legislature, the executive and the judiciary. He gave the following principles:
- The organ of the government should be independent of each other;
- No organ should perform the function of the other organ.
“The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.”
“Delegated legislation (called as secondary legislation or subordinate legislation or subsidiary legislation) is the way through which the administrative organization makes law or gain the legislative power to make laws on the particular matter provided in the statute or act through which power is delegated to them. Such laws are 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. Parliament thereby, through primary legislation, enables others to make laws and rules through a process of delegated legislation.”
Administrative legislation is traditionally considered to be an evil system, is required though, which is against the policy of the separation of power. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is very slight difference between constitutional law and administrative law and it is wrong to say that these two are different from each other. There are some obvious general differences but the idea that a clean division can be made is a legacy for an older era of political theories. It can be easily stated that the legislative power is to legislate the laws for people, whereas administrative power is the power to lay the laws for them, in some particular situation.
Whatever prejudices existed against delegated legislation have come to stay today. In present day legislative powers can validly be delegated to the executive within permissible limits. At the same time, there exists a constant fear of misuse of power by the administrative authority. The basic problem, therefore, is that of controlling the delegate in exercising his legislative powers. This control over the delegation of power may be divided into three categories:
Legislative control; and
According to the theory of Rule of law propounded by A. V. Dicey it has three principle i.e. Supremacy of Law; Equality before the law; and Predominance of Legal Spirit. In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic and fundamental assumptions. They are:-
The power of making the laws must be given in the hands of a democratically elected legislature;
Even if the power of making the laws is in the hands of the legislature this powers should not be misused; and
If the executive and legislature misuse their power the separate organ, i.e. Judiciary must be created independent of these two organs.
This principle states that the constitution is the supreme authority and if any organ goes beyond their power conferred by constitution the judiciary is there to put limit on those powers. The concept of delegated legislation also comes under the purview of judicial review. It is accepted that courts can decide the validity or otherwise of the delegated legislation, mainly by applying the test of Substantive ultra vires and procedural ultra vires.
Ultra Vires means beyond one’s power. If any administrative body by way of delegation of powers acts beyond their power provided to them in that case Judiciary can take decision to limit the authoritative decision making power of administration.
The issue is whether delegated legislation is necessary or not, but what control measures should be embodied to prevent misuse of the legislative power conferred on the Administration by the Legislature. Court comes into play in controlling the mechanism of delegated legislation. The courts review delegated legislation of the basis of three parameters, these are:
Whether the parent act delegating the legislative power is in conformity with the constitution, i.e. Constitutionality of the Parent Act,
Whether the delegated legislation is in conformity with constitution or not, i.e. Constitutionality of delegated legislation,
Whether the executive exercise the legislative power delegated to them within the purview of the Parent act.
These parameters have been discussed as follows:
The constitutionality or unconstitutionality of parent Act comes into picture. If it is invalid, the delegated legislation emanating there under is invalid. It can be on the grounds of excessive delegation, breach of a Fundamental Right or distribution of powers between the Centre and the States. Since Indian Constitution being a written one there is supremacy of Constitution and Article 6(2) provides the supremacy of federal laws in USA whereas in U.K. parliamentary supremacy prevails. Thus the Courts will declare an Act unconstitutional which contravenes provisions of Constitution. There are express and implied limits of the Constitution.
The central and state legislatures exercise law making power according to the provisions of the constitution. Laws for a country and laws for the state are respectively made by central and State Legislatures. The law made by the central legislature shall not be deemed to be invalid on the ground of extra territorial operation. However the law made by state legislature having operation outside the state, can be challenged in a court of law and hence will be declared invalid.
The parent Act is said to be invalid in these circumstances. Delegated legislation is the legislative power transferred through the statute, if this parent statute, itself, is invalid then the legislative power delegated becomes invalid.
The implied limitation on the delegated legislation put on the administrative body by the constitution is that the essential legislative power cannot be delegated by the legislature. While delegating the power legislative body should lay down the guideline and the manner in which the administrative or executive authority may use the delegated power. The delegation of essential legislative function is taken as abdication of essential legislative function by the Legislature and this is not permitted by the Constitution.
The Judiciary has made it clear that the excessive delegation is not permissible. Evolution of this doctrine turns out to be one of the best protections from the delegated legislation. Excessive delegation is taken as abdication of essential legislative function by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the delegated legislation made under such Enabling or Parent Act will also be unconstitutional and void.
It might be so that the parent statute may be constitutional, but the emanating delegated legislation maybe in conflict with some provisions of the constitution. The principles of law applicable to judge the constitutional validity of the Statute are also applicable equally to test the constitutional validity of the Rules/delegated legislation framed under the said Statute. If the rules go beyond the rule making power conferred by the Statute, the same has to be declared ultra vires. If the rule supplants any provision for which power has not been conferred, it becomes ultra vires. Therefore, in order to determine the validity/legality of the rules, the basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in consonance with the parent statute as it cannot travel beyond it and for this, reference can be made to the judgment of the Supreme Court in the matter of General Officer Commanding-in-Chief v. Subhash Chandra Yadav wherein it has been held as under:
“Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.”
It is one of the basic doctrines in Administrative Law. The doctrine says that an Administration can perform only so much power as the law gives it. An action is intra vires if it is within the confines of the power given by the statute, but, if it goes beyond these limits it is ultra vires. The courts have a duty to scrutinize if a delegated legislation has been made in accordance with the powers and procedure under an Act.
When a delegated legislation fails to follow procedural requirements prescribed by the parent Act, it is known as procedural ultra vires. While making rules, bye-laws, regulations, etc., the parent Act or enabling statute may require the delegate to observe a prescribed procedure, such as holding of consultations with particular bodies or interests, publication of draft rules or bye-laws, laying them before Parliament, etc. It should also be noted that failure to follow the procedural requirements does not necessarily invalidate the rules. There is a distinction between mandatory requirements and directory requirements. Non-compliance with a directory provision does not invalidate delegated legislation, but failure to observe a mandatory requirement does.
In England, certain provisions were made for the giving of notice and inviting representations. Provisions were made also with a view to ensure that the public would be aware of the delegated legislation. After the decision in the American Panama case, the Federal Register Act was passed in 1935, requiring the publication of all regulations when the court found that there was no adequate publication of delegated legislation. The provisions for publicity of delegated legislation were further strengthened by enacting the Administrative Procedure Act, 1946. The Circular Court in the case of Hotch v. U.S. held that if a regulation was not published in accordance with the Act of 1935, it was invalid, irrespective of whether the person charged with its contravention had actual knowledge of its content or not.
The above principles apply in India also. Unlike England and America, there is no statutory provision requiring publication of delegated legislation. Yet the courts have treated some sort of publication of delegated legislation as an essential requirement for its validity. In the case of Raza Buland Sugar Co. v. Rampur Municipality and State of Mysore v. V.K. Kangan, the court held that as to whether a provision is mandatory are directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or other.
Substantive ultra vires is the most common ground to challenge delegated legislation before the courts. It means delegated legislation becomes void when it is in conflict with the parent Act. The principle is that the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate legislative authority keeps within the scope and bounds of the power delegated, the delegated legislation is valid; but if it falls outside the scope of the power, the courts will declare it invalid.
An important illustration from England of substantive ultra vires is furnished by The king V. Minister of Health, in which the Court of Appeal in affirmation with Divisional Court’s decision held that a rule nisi for a writ of prohibition prohibiting the Minister from proceeding the improvement scheme made under the provisions of the Housing Act, 1925, on the grounds that the Act did not authorize an improvement scheme containing an unrestricted power and that the Minister had no jurisdiction to consider the scheme. It was not mentioned in the Parent Act under which section the scheme would have been purported.
In another case of Commissioners of Custom and Excise v. Cure & Deeley ltd. Where Finance Act 1940 gave Customs and Excise power to make any law they wanted. It gave a government department more power than Parliament which was held to be wrong.
The application of doctrine to American delegated legislation is wider than it is in British. Not only must the regulation in question be intra vires the enabling Act, but both the Act and regulation must be intra vires the Constitution. The American courts can invalidate Administrative rules and regulations not only because they are ultra vires the enabling Act in the strict sense, but also because they are unreasonable.
Indian position can be explained with the help of case, Agarwal, Ayenger and Co. v. The State , the question was whether under the doctrine of implied powers the delegate can exercise more powers than those conferred expressly. The court found that whatever was sought to be done by the delegate went beyond this limit.
The different constitutions in the world, whether written or unwritten, have their own special characters. The one which is written has the rigid rules and regulation which is a bit difficult to alter and the one which is unwritten in those countries it is relatively easy to amend the laws. The two best examples of these constitutions are USA and England. They have totally different political system. The one have presidential democratic system whereas the other has the parliamentary monarch. These two countries had the different approach toward the delegated legislation.
In England parliament is sovereign. In principle parliament is the sole authority to make the laws. According to C. K. Allen “Nothing is more striking in the legal and social history of 19th century in England than the development of subordinate legislation.”He also stated that “We are becoming much governed nation, governed by all the manner of the council and boards and officers, central and locals, high and low, exercising the powers which have been committed to them by modern statute.”Traditionally, administrative legislation was considered to be the evil for the system but gradually it started developing and considered being justifiable in principle also. It was realized that the two, administration and legislation, are not fundamentally different form of power. Tests formulated to distinguish legislative and administrative functions proved insufficient and inappropriate. When the hue and cry developed for the delegation of the legislative powers the parliament constituted the committee on Ministers’ power (Donoughmore Committee) in 1929. This committee stated that “the system of delegated legislation is both legitimate by permissible and constitutionally desirable for certain purposes, within certain limit and under certain safeguard.”
In USA theoretically the powers cannot be delegated and it is due to two main reasons:
Separation of powers- In the constitution of USA the powers have been expressly separated under first three Articles which define the legislative power of the congress, the executive power of the president and the preserving laws and interpretation of constitution to the judiciary. “The congress cannot delegate legislative powers to the president is a principle universally recognized as vital to the integrity and maintenance of the system of the government ordered by the constitution.” It is also observed that “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”
Delegatus non potest delegare- The literal meaning of this phrase is- the power cannot be delegated twice. If the power is once delegated it cannot be delegated again. According to the constitution the people of USA delegated the power to the congress to make the law so the same power cannot be delegated again by the congress to executives.
As the condition arise in the system where the condition become unfavorable for the congress to make the laws, congress become overburdened and in this condition Supreme court could not shut the eyes and tried to create a balance between the theoretical and factor of the separation of power and inevitable condition of the delegation of legislative powers. The Supreme Court in the Hot Oil Case stated that the powers given to president were not declared by any legislation and Sick Chicken Case held that the president in approval of codes of fair competition is discretion of the president and it is “virtually unfettered”. But after these cases Supreme Court took the liberal view in regard to the delegation of the powers.
The vast powers were conferred upon the Federal Communication Committee to license broadcasting station. The criteria was of ‘public interest, convenience or necessity’ though it was vague and ambiguous, SC held it to be a valid standard. The Reorganization act, 1942, empowered Administrative officers to determine whether the price is excessive and to recover the price which they determine to be excessive. SC held the delegation valid observing the statutory term ‘excessive profits’ was a sufficient expression of the legislative policy and standard to render it constitutionally.
The Supreme Court in the further judgment gave many tests to determine the constitutionality of the delegated legislation one among them was “discretion to make regulation to guide supervisory action in such matter may be constitutionally permissible while it might not be allowed to authorize creation of new crimes in unchartered field.” SC further following the liberal view held that the constitutional structural protection does not prohibit the congress from delegating to an expert body located within the judicial branch the intricate task of formulating sentence guidelines consistence with such significant statutory decision. In this way SC follow the liberal approach and accept the delegated legislation in the practical approach.
In India, in pre constitutional period the situation arise in front of the Privy Council in the case of R v. Burah where the powers were delegated by the governor general to the officer and to take decision on the matter the High court of Calcutta stated that the act is ultra vires and is not valid. In appeal the Privy Council declining the arguments of the respondents the court gave two important conclusions:
Indian legislation did not delegate the power from the British legislation it has its own legislation to make the power and independent of the British legislation.
In this case the Privy Council decided that the power given to the officer is the conditional legislation not the delegate and did not decide on the matter of delegated legislation.
This question was again raised before the federal court about the delegated legislation and held that the power is extended with the modification is unconstitutional delegation of legislative power because it is very important for legislation to legislate the law in this manner for the first time the court held that the delegation of legislative power is not permissible.
This case create the confusion related to the delegation of the legislation for that the president of India using his power under Article 143 sought an opinion from the SC regarding the delegation of the powers in three acts In Re Delhi Laws Act case, 1912. The two arguments in this case were that the parliament has the power to delegate and hence there is limitation on the same; on the other hand there is separation of power and delegatus non potest delegare applies in India and hence Delegated legislation is unconstitutional and SC in this case took a moderate view and held that:
Doctrine of Separation is not the part of the constitution of India, there are some articles which provide one organ of the government to perform the function of other but have certain limitation.
Indian parliament has never been considered an agent of anybody and therefore doctrine of delegatus non potest delegare does not apply.
Parliament cannot abdicate or efface itself by creating legislative body.
Power of Delegation is ancillary to the power of legislation.
Limitation on the delegation of the power is that the parliament cannot part with the essential legislative power mentioned in the constitution of India. Essential legislative power means laying down the policy of law and enacting them.
In India the delegated legislation is not the absolute one. Indian courts, in several cases decided the validity of the delegated legislation. Delegation of the legislation is permissible in India, if it is expressly provided in the constitution of India. The main issue which the court takes into consideration before deciding the case after the Re Delhi Law Act Case is that whether the legislative power delegated to the administrative authority is the essential legislative function of the parliament or not, after this court deals with the other matter of the case. Supreme Court in several cases held that the delegated legislation is intra vires and declare that for the purpose of the smooth running of the administrative and legislative work the delegation of legislative power is necessary. The other factors which are taken into the consideration is whether the legislative act, which provide power to the administrative body, is mentioned in that act, the nature of the body to whom the power is delegated and the context in which this power has been exercised.
In this way the Supreme Court of India took a moderate approach with respect to the delegation of the legislative power.
Constitutionalism means the concept of adherence to the constitutional provisions. The concept of constitutionalism came from the ancient philosophy and has the ideology that the power is given to the authority by the citizens of that nation through the set of rules framed in constitution. The constitution has all set of rules which are expressed in the constitution but several concepts are implied in the basic framework of the documents. The basic constitutional principle is separation of power, rule of law and judicial review.
Delegation of legislative power is something which is not valid according to the provision of the separation of power implied in the constitutional provision. According to the principle of separation of power there should be three organ of government and should perform the separate function. This concept is important for the proper functioning of the system though this principle is not accepted in the original form because in certain condition an organ of government, say executive, have to perform the function of other organ, say legislature, in promulgating the ordinance. In this way this concept has certain limitation. There were several criticisms on this limitation, several critics state that if the concept of separation of power is not in proper function then the arbitrariness of an organ will affect the citizens but the concept of check and balance keep the working of system properly. In this way the delegated legislation, with the view of the concept of separation of power, is valid as the other organ of the government, judiciary and legislation, have control over delegated legislation.
Rule of law is the constitutional principle according to which the law should rule i.e. the law has the supreme authority over any organ of the government. This concept is given by A. V. Dicey, he gave four principles of rule of law- equality before law, punishment for breaking the law, rights and liability must be embodied in ordinary law and no one should punish except breach of law. In delegated legislation, while delegating the legislative power the extent to which power is delegated, the rights and the action which can be initiated is properly mentioned in the statute and if the authority tries to exceed these provisions will caught by the provision of rule of law and will be punished for the improper, arbitrary and excessive delegation of power exercised by the administration.
The independent judiciary plays an important role in the development of the constitution. Constitution is an organic law which keeps on evolving and this task is given to legislature to amend the constitution whenever it requires. The role of judiciary is to check these provisions whether they are within the constitutional limitation or not. They also have a role to interpret the statute for the proper understanding of law and to protect the rights of citizen. This process of interpreting, checking the laws, check on the constitutional limits on the different authorities come within the purview of Judicial review.
Delegated legislation in today’s condition is inevitable process due to excess of workload of legislature. They try to delegate certain legislative power, which is of less importance. Legislative action should be performed by legislature and not administrative authority. Several critics think that the delegated legislation is unconstitutional as it is in violation of the concept of separation of power but, as stated earlier, this concept is not applicable in the accurate manner as it is propounded. According to these all provisions, delegated legislation can be held constitutional valid as it follows the basic constitutional provisions such as rule of law and judicial review and in case of any violation or arbitrary rule independent judiciary have the right to decide on the matter.
The judiciary decides the constitutionality of the delegated legislation, as discussed in above portion, and develops certain doctrine while giving the judgment, which the administrative body should take in mind before making the rules. They develop the doctrine of reasonableness, doctrine of proportionality and the principle of legislative action with relation to the public accountability.
The Judiciary of different countries come with several concept related to delegated legislation and make the ambit of delegated legislation clear to the extent but after all this effort of judiciary the powers under delegated legislation is misused by the administrative authority. This misconduct or misuse of the delegated power can be controlled by adopting some proper measures for the implication of delegated legislation. The legislative power is delegated to administrative body through a parent act enacted by the legislature. Parliament enacts the law and delegate the power but there is no provision which regulate the process of delegation. The parliament can make a law to regulate the method of law making for the delegated legislation. The purpose of such law shall be improvising the system of delegated legislation. There should be the parliamentary review of the rules of great importance made by administrative or executive authority under delegated legislation and this matter of the great importance shall be mentioned in the law for delegated legislation.
If, due to lack of time parliament cannot review the rules or instructions of the great importance they can make a parliamentary committee to look over the matter of great importance.
Whenever the administrative authority make any rule by the means of delegated legislation there should be proper advertisement of that rule to make the citizen, concern by that law, aware of that particular instruction or rule.
The most important measure should be taken by the legislature while enacting the Parent Act while delegating the legislative power that the language of statute shall not be ambiguous. If the language is ambiguous then the administration can interpret the language in their favor and misuse the power given to them.
The Delegated legislation on the basic constitutional principle, i.e. Judicial Review and Rule of law is constitutionally valid but one concept of constitutionalism which is separation of power creates confusion on constitutionality of the delegated legislation. As discussed above, practically Separation of power is not possible, in practical life the concept of separation of function work and this principle approve the constitutionality of the Delegated legislation. Even though the concept of delegated legislation is constitutionally valid but there were certain loopholes in the practical use which is tested by judiciary in several cases all over the world.
The judiciary decides if the administrative body or the power delegated violates any provision on the grounds provided in the case of Council of Civil Services v. Minister for the Civil Services. In this case House of Lords decided that the order passed by royal prerogative is ultra vires and gave the three grounds for considering any rule made by delegated legislation unconstitutional is: illegality, irrationality and procedural disproportionality.
The story of delegated legislation starts from the story of King Henry. He started taking the power of legislature and started making rules with the promulgation of clause, which popularly come to be known as Henry Clause VIII. This gives the power to primary act by secondary legislation to amend and repeal the provision of the primary act. This clause was removed after the death of the King and in several cases held invalid and is one of the criteria of the court to decide the unconstitutionality of the act.
The Judiciary applies several tests for protecting the rights of the people and observes the working of delegated legislation and has the control over the administrative arbitrary action on the grounds of constitutional validity of parent act, constitutionality of the power delegated, concurrency of the power delegated and the rule made, the doctrine of ultra vires (procedural and substantive) which include that the knowledge of rule made by delegated legislation should be provided to the citizen/public concern to that act.
The judiciary, on the basis of the case come under the jurisdiction, held the delegated legislation constitutional and gave certain ground for deciding when the delegated legislation to be held ultra vires. Even though there are some more measures, as described above or any other considered to be fit for proper functioning, could be implemented to make the working of the process of delegated legislation in proper way.
 AUTHORED BY: MR. AMIT KUMAR VERMA, B.A.LL.B (HONS), STUDENT AT NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL.
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