Delegated Legislation Flashcards
What is delegated legislation
According to Salmon, delegated legislation is that which proceeds from any authority other than the sovereign, and therefore, for its continued existence, it requires validity from a superior or sovereign authority. They’re a bundle of rules and regulations which govern laws and without which laws would be inapplicable
What is the need for delegated legislation
- Exigencies of the modern state - Parliament cannot give the quality and quantity of rules and regulations while it is in session that is required in a reform state
- Technicality - Some rules and regulations have to be extremely technical requiring expert input
- Flexibility and experimentation - Since the parliament cannot oversee all contingencies, you need something that is quickly amendable
- Emergency - Where quick action is required like the Covid Crisis
- Confidential matters - If public interest requires non disclosure till coming into effect
Jatindra Nath Gupta v. Province of Bihar
Re: Delhi Laws Act
Edward mills v. State of Ajmer
Hamdard Dawakhana v. Union of Indiaq
M.K. Papaiah v. Excise Commisioner
What are the key takeaways from the judicial decisions in the delegation of power
- The power of delegation is a constituent and anciliary power of the legislation. It CANNOT ‼️ be a substitute for the same
- Essential functions cannot be delegated.
- Legislative policy must be required to guide delegated authority. Also, it has been shown that such policy can be broad. (Edward Mills)
- Delegate cannot have more power than the authority that delegates
- Delegated legislation must not be unreasonable and must not violate safeguards.
Type of Control on Delegation
- Parliamentary Control
- Procedural Control
- Judicial Control
What is Parliamentary Control and Rationale
Every delegate is subject to the control and authority of the principal. The exercise of the power can be directed, confirmed or rejected by the Parliament. These comprise of two types of control -
Direct General Control (Not that important, has to do with debate on the delegating bill in the house etc)
Direct Special Control (types of action the parliament can take with respect to rules notified)
Direct Special Control - Ways in which rules may be laid in front of Parliament
- Laying with no further direction - Simply to inform parliament
- Laying subject to negative resolution - Rules will come into effect as soon as laying on table of the house, till they are annulled
- Laying subject to affirmative resolution - Rules will have no effect till affirmed by the Parliament
What are the steps of Procedural Control
Procedural control has to do with the review of the rules by stakeholders. It is of three types:
- Antenatal Publicity
- Consultation with affected persons
- Post Natal Publicity
What is antenatal publicity and how does it take place
It has to do with publicity of the draft rules before publication, such as to invite comments from stakeholders:
In some cases the parent acts provide the mode (Section 23 of the General Clauses Act for example)
Rules to be published in draft in the Gazette. Objections & suggestions to be invited. Objections & suggestions
to be considered.
How does consultation with affected persons take place
Consultation is a democratic person that makes the administrative rule making acceptable and effective. The logic is that if the administrator cannot examine and scrutinise the rules at least the affected persons can do so. There is no general rule in India regarding Consultation, the enabling act may provide.
What is postnatal publicity and how is it carried out?
Postnatal publicity is necessary. It deals with publicising the enacted rule such that it is available to the public, and so that people aren’t caught on the wrong foot in ignorance to the law. There is again no general rule in india regarding the same, and it differs from statute to statute. It can either be in the gazette or the free choice of the authority.
