Judicial and Legislative Control over delegated legislation
According to the doctrine of separation of powers the three organs i.e legislative executive and judiciary are carrying three different functions so as to avoid concentration of all the powers in one organ when to prevent exploitation and corruption. The function of executive is to administer the law enacted by legislature and legislative power must be exercised exclusively by legislator. But now administrative authorities are given rule making powers which is known as delegated legislation.
Meaning and definition of delegated legislation
The system of delegated legislation reduces the burden or work load of the legislature and thereby enables the legislature to give sufficient time for the consideration of policy matters.
According to Jain and Jain, the term delegated legislation is used into sense
- a) the exercise by a subordinate agency of the legislative power dedicated to it by the legislature
- b) the pursuance power conferred on it by the legislature
In the second sense, delegated legislation includes the rules, regulations, orders, bye laws etc.
The delegated legislation is also called subordinate legislation. This indicates that the authority which makes legislation in exercise of Legislative powers delegated to it by the legislature is subordinate to the legislature and the power of authority is limited by statute by which delegation has been made.
Need of control of delegated legislation
The delegated legislation has become inevitable. It is considered a necessary evil.
If the delegated legislation is not so properly controlled it may result in development of new despotism. The delegated legislation is now available and consideration of its very existence is of no use. The issue for consideration should be as to how it should be properly controlled so as to prevent its misuse. Excessive delegation is a danger to the individual Liberty.
Legislative control on delegated legislation
Legislature making the delegation exercise its control over delegated legislation. Jain and Jain have stated that it is the function of the legislature to legislate but if it seeks to give this power to the executive because of some circumstances it is not only the right of the legislature but also its duty to see how its agent carries out the agency entrusted to it.
Under Rules of procedure and conduct of business of parliament, the bill involving proposals for delegation of legislative power is required to be accompanied by a memorandum explaining the proposal and drawing the attention of the members to its scope and stating whether it is of exceptional or normal character. This method of control has not been proved much effective.
Border method of control of delegated legislation by parliament is the laying procedure that is laying on the table of the house of the rules and regulations framed by administrative authorities. Usually the enabling Act aur parent act provides for playing rules made by the delegated before legislature.
In India there is no general law that requires all delegated legislation to be laid before legislation whether a rule or regulation is required to be laid before the legislature or not depends on wording of the Act making delegation. Which is the object to bring uniformity in the laying procedure the committee on subordinate legislation suggested that every Act making delegation should lay down that rules made thereunder by the delegated legislation shall be laid before the legislature as soon as possible.
Judicial control over delegated legislation
Delegated legislation is required to be in conformity with the constitution. The legislation which violates the provisions of the constitution will be invalid.it is for the judiciary to decide whether or not the act is in conformity with the provision of the constitution. If the legislature is found in violation of the constitutional provisions the court has to declare it unconstitutional and void because the Court is bound by its oath to uphold the constitution. The doctrine of Ultra virus has been applied by the courts for the purpose of controlling delegated legislation. The expression ultra vires means to act on powers.
The legislative powers can Delegate to executive within permissible limits, but there is a need to control the delegated legislation because there is risk of abuse of powers and its need to control legislative or judiciary or in any other ways.
Author: Pooja Pawar,
LLB from NBT law college Nashik