Delegated Legislation – Judicial Control and Procedural Control4 min read

By-Bipasha Dey

The Indian Constitution has set up a Welfare State which directs that the state shall legislate a number of activities which will positively affect human lives and promote ‘maximum happiness for maximum people’.

A delegated legislation or subordinate legislation in administrative law, is the law made by an individual person or authority under the power vested by the parliament. It permits the bodies under the primary power/authority or legislature to bring up laws according to necessity.

Control of Delegated Legislation

There are three types of Control conferred under the Delegated Legislation:

  1. Parliamentary/Legislative Control.
  2. Judicial Control.
  3. Procedural and Executive Control.

Judicial Control:

Judicial Control over delegated legislation plays an important role in the field of Control mechanism. It means assessment by the Court of the legal validity of a piece of delegated legislation. This can be done by the Court, through –

  1. Referring the Constitution, by applying the Doctrine of Ultra-vires.
  2. Referring the other recognized principles of law.

It is the most effective method to keep the administration within legal boundaries.

Delegated legislation might be therefore deemed invalid on the following grounds –

  1. The enabling Act if ultra-vires (beyond) the Constitution – In this case, the framed rules and regulations would also be void.
  2. The administrative legislation is ultra-vires the Constitution – It may happen that the enabling Act may not be ultra-vires the Constitution, yet, the rules and regulations framed thereunder may violate any provision of the Act.

Administrative rule-making can be challenged on the ground that it is discriminatory in nature.

  • The administrative legislation is ultra-vires the enabling Act – This happens when,
  • It is in excess of the power conferred by the enabling Act.
  • It is in conflict with enabling Act.
  • It is in conflict with the prescribed procedure of the enabling Act.
  • It is unreasonable, arbitrary and discriminatory.
  • It is malafide.
  • It is in conflict with the terms of some other statute.
  • It encroaches upon the rights of the private citizen, in the absence of an express authority in the enabling Act.

Procedural and Executive Control:

Procedural Control of delegated legislation means that under parent Act certain guidelines are given which need to be followed by the authorities while making the rules and laws.

The prescribed procedure of making laws, could be either made mandatory to be complied with or directive in nature. To know this, certain (four) specified parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council

1. Scheme of the Act.

2. Intention of Legislature.

3. Language used for drafting purpose.

4. Inconvenience caused to the public at large scale.

If the procedure is mandatory to be followed, the made rules become invalid on the ground of non-compliance with prescribed procedure.

However, if the procedure is just directive in nature, then non-compliance would not render the rules invalid, since, there’s no definite procedure to be followed for it, until the legislature mandates the executive to follow certain rules or procedure.

So, while making the rules, one has to keep in mind whether the procedure is mandatory or directory.

The procedural control mechanism operates in four components –

  1. Drafting – Drafting of the delegated legislation is to be done by an expert draftsman. Such draftsman must be in a position to advise that whether the proposed rules & regulations are intra-vires or ultra-vires.
  2. Pre-publication – It is done through draft form and objections and suggestions are welcomed before finalizing it.

According to the Section 23 of General Clause Act, 1897, the effect of the term before publication are-

  1. The rules should be published in draft form in Gazette.
  2. The objection and suggestion should be invited by a definite date.
  3. Those objections and suggestions should be considered by the rule-making authority.
  4. Consultation with affected persons – Consultation with affected person make administrative rule making a democratic process and therefore increases its acceptability and affect.

In India, the provision for prior consultation made in enabling the Act can be grouped into five categories –

  1. Official consultation with named body.
  2. Consultation with administrative boards.
  3. Consultation with interested people.
  4. Consultation with statutory board in charge of a particular subject.
  5. Draft rules and affected interest.
  6. Post-publication (Post-natal Publication) – It is based on the dictum “Ignorance of law is no excuse”, and law should be made accessible to everyone. Any specific law doesn’t exist in India, which prescribes the mode of publication.

Unless the rule making authority lays down a particular date on which the rules shall come into force, they generally come into force on the date of publication.

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