Constitutionality of Administrative Rule Making and its Control Mechanism

INTRODUCTION TO CONTROL OVER ADMINISTRATIVE RULE MAKING/ DELEGATED LEGISLATION

The practice of conferring legislative powers upon administrative authorities is beneficial and necessary but also dangerous because of the possibility of abuse of powers conferred upon it. There is no doubt that the practice of delegated legislation entails an abandonment of its legislative function by the legislature. The system of delegated legislation adds considerably to the powers of the executive and relatively weakens the position of the legislature. The legislation by the legislature is subjected to various constitutional safeguards, but the legislation by the administration is not subjected to these safeguards. Therefore, the control of delegated legislature is of utmost importance to ensure that the executive does not act arbitrarily.

JUDICIAL CONTROL OVER DELEGATED LEGISLATION

Judicial review of any legislation has always been an essential feature of the Indian Constitutional Law. It was once argued before the Calcutta High Court that the limits on the powers of the Indian Legislature are political, not legal, and that the validity of its legislation is not a justiciable issue. The court rejected this contention stating that “The theory of every government with a written constitution forming the fundamental and paramount law of the nation must be that an Act of the legislature repugnant to the constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory, and make that operative in law which was not law.[i]

The fundamental justification for judicial control is based on the constitutional obligation of the Courts to uphold the principle of rule of law. In a constitutionally governed state, it is the essential function of the judiciary to ensure that the laws made by the Parliament are not Ultra vires under the Constitution and the delegated legislation enacted under the statute are within the ambit of both the parent statute and the Constitution. Judicial control is said to be more effective as the courts have the power to strike down the laws if it goes Ultra vires the parent statute or the Constitution. The constitutional bench of five judges of the Supreme Court, in the case of Ram Krishna Dalmia v. Justice S.R. Tendulkar[ii] has laid down the scope and extent of power of judicial review of legislation in India.

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Constitutional Law

The Doctrine of Ultra Vires is applied by the court to adjudge the legality and validity of the delegated legislation. Firstly, it checks whether the parent act is ultra vires the Constitution. If the parent act is in non-conformity with the Constitution then the different rules and regulations framed under such statute will also be deemed to be unconstitutional. In St. Johns teachers Training Institute v Regional Director, National Council for Teacher Education[iii], the court applied this inherent policy of the statute to uphold the constitutionality of the delegated legislation. Secondly, it checks whether the delegated legislation is ultra vires the Constitution. There may be a case when the parent statute is constitutional, but the delegated legislation under it is in conflict with any constitutional provision. In such cases, the delegated legislation will be invalid. In Dwarka Prasad Laxmi Narain v. State of UP[iv], a few provisions of the act in question were declared ultra vires as infringing Article 19(1)(g) of the Constitution.

LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION

Another way by which the some restrictions could be laid down on delegated legislation is through Legislative Control. It is necessary to see that the inherent power of legislation that is on Parliament is not transgressed by the way of delegated legislation. Since it is the legislature which grants legislative power to the administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure the danger of its objectionable, abusive and unwarranted use by the administration. The three types of control exercised by the legislature are-

  • Direct General Control- This control is usually exercised by three means, i.e., through the debate on the act which contains delegation, through questions and notices in the legislature and through moving resolutions and notices in the house.
  • Direct Special Control- This control mechanism involves the technique of ‘laying’ on the table of the House, the rules and regulations framed by the administrative authority. This provision provides that the delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either house.
  • Indirect Control- Indirect control is exercised by the Parliament through its committees. In India, there are standing committees of the Parliament to scrutinise delegated legislation. Such committees have main functions which include whether the rules are in accordance with the general object of the Act, whether the rules contains any matter which could more properly be dealt with in the Act, whether it is retrospective and whether it directly or indirectly bars the jurisdiction o the court, and the questions alike.

CONCLUSION

As Justice P B Mukherjee has stated “Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists. It is praised as a necessity and felt as inevitable in our world where social, economic, technological, psychological and administrative speed outstrips the spacious and placid traditional legislative ideals and processes. It is criticized as an abdication of power by legislators and an escape from the duty imposed on them by voters of democracy.”[v] Thus, even though delegated legislation helps in lessening the burden of the parliament, at times, it may function in such a manner that may lead to injustice and arbitrariness. And if this is not handled properly, it will lead to undesired results. In many cases, the legislative body only makes the skeleton laws and the other important things are delegated to an executive body which may make the process arbitrary. And by this, it would allow the delegated body to enjoy wide powers and discretions. Such bifurcation of powers is really problematic. Therefore, effective control against the abuse of delegated powers of legislation must come from the legislature itself, primarily at the time of delegation, and secondarily in the supervision of the manner in which they are exercised.

Author: Ipsita Sinha, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] Empress v. Burah and Book Singh, I.L.R. 3 Cal. 63, per Markby J. at 87-88.

[ii] 1959 SCR 279

[iii] AIR 2003 SC 1533

[iv] 1954 AIR 224

[v] JIL 1 July 1959

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