Q.20 (b). What are the role of Delegated Legislation in India ?
Ans. Delegated Legislation in India In India,
the problem is different from England—India too has a parliamentary form of government and it is a welfare state. Thus planning and social legislation are inevitable and consequently delegated legisla-tion is bound to, take place. The reasons which caused the growth of delegated legislation in England are operating in India also. In India, the Constitution is a written one, and it is the fundamental law of the country. The legislature is to perform the functions assigned to it in the Constitu-tion, and its powers are limited by the Constitution. Any Act in contraven-tion of the provision of the Constitution shall be declared void or ultra vires by the judiciary.
In India, there is no complete separation of powers as it is in America (there is no separation between legislature and executive). However, the classification of delegated legislation, here too is based to some extent on American principle. Here delegated legislation if classified as (1) Condi-tional and (2) Subordinate. Conditional represent nearly the same ideas as `contingent’ in the American Constitution. Therefore, a definition of ‘con-tingent’ would help in understanding the meaning of `conditional. ‘Contingent’ is defined as a statute that provides control but specifies that they are to come into effect only when a given administra-tive authority finds the existence of condition; defined in the statute. In subordinate legislation the power is given for promulgation of rules and regulations.
The main point of distinction between the two is that in ‘conditional’ the delegation is of fact-finding and in subordinate the delegation is of discretion. But in actual practice the dividing line is not so clear as it is in theory and there are possibilities of abuse of the power. The main types of delegation of Legislative power are : Power to bring an Act into operation; Power to apply the Act; Power to exempt from or extend the scope of the Act; Power to issue orders within the ambit of a very: wide statment of policy or purpose; Power to make rules, regula-tions and bye-laws; Power to impose tax etc. Beside; delegation, there is sub-delegation also. In sub-delegation the agency to whom the power is delegated in the Act may further delegate the rule making power to some other agency. In some case, this process of delegation goes down to four or five degree removed form the parent Act.
Limits of delegation—It is well ‘established that the power of del-egation is a constituent element of the legislative power as a whole, and in modern times, when the legislature enacts laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their enactments. It is also well settled that subordinate or subsidiary legislative authority may be delegated. In modern legislative mechanism such a delegation becomes inevitable because in the tempo of prevailing conditions of modem soci-ety events occur which are difficult to foresee and it is impossible for the legislature to anticipate all events or to provide for all eventualities. Legis-lature therefore necessarily leaves the duty of making rules and of taking necessary actions under the statute to the appropriate Government. The legislature may lay down the legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its subsidiary powers. Where the delegation of powers under a provision of law is unguided and unbridled, the delegation may be condemned as unreasonable but where the legislature selects the instrumentalities, the legislative wisdom must not be questioned on the plea that the Govern-ment has been vested with excessive power of delegation.
In India also, Parliamentary and judicial control is exercised on del-egated legislation.
Parliamentary control.—The provision regarding parliamentary control may be divided into following types :—
(1) Where rules are required to be laid on the table of the legislature without any provisions for parliamentary control.
(2) Where rules are required to be laid on the Table for the prescribed number of days and are subject to modifications or annulment which parliament by resolution may make.
(3) Where rules are required to be laid before both Houses of Parliament with a provision that rules shall cease to have effect if not ratified by Parliament within the prescribed period of time.
(4) Where the rules are required to be laid before both Houses of Parliament and do not come into effect until affirmed by the Parliament.
The provisions regarding Parliamentary control of delegated legislation are not uniform for the purpose of bringing uniformity, the committee on subordinate legislation, in their first Report the following recommendations—
The in future, the acts containing provisions for making rules etc shall lay down that such rules shall be laid on the table as soon as possible.