This article has been written by Khushi Gupta from University Law College, Bangalore University

Table of Contents

Introduction:

The concept of delegated legislation is also synonymously regarded as subordinate or secondary legislation. It is the laws passed by people or organizations acting under the authority granted by a parliamentary act. The legislative process in India also includes the transfer of certain legislative powers to other authorities, including the executive.

The legislative process is not entirely based on direct enactment. The use of delegated legislation envisaged the necessity of strong judicial review as well as the possibility of power abuse. The goal of this Article is to present a thorough analysis of India’s judicial review process for delegated legislation by looking at the country’s constitutional framework, review principles, and significant court rulings.

Constitutional Framework:

Adopted in 1950, the Indian Constitution delineates the framework of governance and elucidates the authorities and roles of diverse establishments. An essential component of this framework is the division of powers between the legislative, executive, and judicial departments as expressed by the Indian Constitution. The central and state legislatures are only granted legislative powers under Article 245 of the Constitution.

However, these powers may also be delegated under specific circumstances. Article 248 of the Constitution vests the remaining powers in the Central Government and makes it the highest legislative body. Articles 73 and 162 empower federal and state enforcement agencies to issue orders and legislate on matters not included in the Concurrent List or the State List, respectively. This allows for a wide range of delegated legislation, subject to constitutional limits and principles.

Principles Governing Judicial Control:

The Indian judiciary plays an important role in ensuring that delegated legislation complies with constitutional principles and does not violate the separation of powers. Some principles that guide judicial review of delegated legislation:

Ultra Vires Doctrine: This envisages that any subordinate act/law must be in full compliance with the parent act/law. If any such said subordinate laws exceed the scope of the parent act itself, Courts of law term them as invalid and void ab initio. One apt example for the same would be, if any subordinate law/act is considered unconstitutional; it can we deemed invalid by courts of law citing the doctrine of Ultra Vires.
Reasonableness and Fairness: Legislation that is delegated must be equitable and proportionate. Courts have consistently ruled that laws and policies cannot be discriminatory or arbitrary. The principle of proportionality guarantees that the utilization of authorized powers is not capricious and fulfills a justifiable objective.
Procedural Validity: The procedures followed are subject to judicial review when delegated acts are issued. The delegated Act may be invalidated if it fails to comply with procedural requirements such as consultation or public participation.
Intelligible Guideline: Failure to comply with procedural requirements such as consultation or public participation may invalidate delegated acts may invalidate the delegated Acts. Thus, the Acts are subjected to Judicial Review.
Non-Delegable Functions: Certain tasks shall be performed by the legislators themselves and they cannot be delegated as such. Policy matters and fundamental principles are generally not considered to be delegated, and courts may reject any attempt to delegate such tasks.

Important Judgments:

Over the years, several landmark judgments have shaped the jurisprudence on judicial review of delegated legislation in India. These decisions reflect court judgments and#039; duty to uphold constitutional principles and maintain a delicate balance between legislative power and the need for effective administration.

In Re: Delhi Laws Act, 1912: In this early case, the Privy Council emphasized that Parliament itself must perform important legislative functions. A delegated act could only be valid if it complied with the principles of fundamental law and did not exceed the powers granted.
Hamdard Dawakhana Vs. Union of India (1960): In this case, the Supreme Court emphasized that a fundamental right must be to have policies and guidelines for the delegation of powers. He said that if law did not speak of politics, delegation would be excessive and secondary legislation ultra vires.
Kishan Prakash Sharma Vs. Union of India (2001): This case reiterated the importance of procedural justice in the drafting of delegated legislation. The Supreme Court held that failure to consult stakeholders and interest groups before making rules renders the rules invalid.
Raja Narain Singh Vs. Chairman, Patna Administrative Committee (1955): The court emphasized in that case that the parliament itself must perform important legislative functions such as defining the policy of the law and setting standards. The mandate could only extend to political implementation.
Deena Dayal Vs. Union of India (1983): This case emphasized the principle of non-delegated functions and said that the parliament should perform important legislative functions and delegation should not involve important political matters.

Challenges and Criticisms:

Although judicial review of delegated acts is necessary to maintain the rule of law and prevent abuse of power, certain challenges and criticisms have been raised:

1. Legal activism vs. limits The scope of judicial review often involves a delicate balance between activism and moderation. Some argue that excessive legal intervention can undermine the effective functioning of the executive, while others emphasize that the judiciary must curb possible abuses of power.

2. Delays in judgments: Legal challenges to delegated acts can cause delays in implementing laws. The time spent on legal review can prevent urgent matters from being resolved quickly, which affects the effectiveness of management.

3. Complexity of delegated actions. Delegated legislation is often complex and technical and requires specialist knowledge. This complexity challenges judges to fully understand the implications and make informed decisions.

Global Perspective:

U.K. – Similar to that of India; In the UK, judicial review of delegated legislation is a key mechanism to protect the executive against potential abuses of legislative power. Through the doctrine of ultra vires, courts have the power to review and invalidate delegated legislation that exceeds the powers granted by the enabling act. This principle ensures that secondary legislation meets the scope and purpose set by Parliament. Furthermore, the courts have the authority to scrutinize the procedural facets of the legislative process, guaranteeing impartiality, consistency, and conformity to established legal standards. The legal framework of the United Kingdom places significant emphasis on the role of judicial review in upholding the rule of law and averting the misuse of delegated legislative power .
USA – Judicial review of delegated legislation, also known as administrative regulations or rules, is an essential component of the constitutional framework in the United States. Federal courts have the authority to interpret the Constitution and consider whether government actions, including executive orders, are constitutional under the Madisonian judicial review principle, as demonstrated in the Marbury v. The courts are crucial in ensuring that executive agencies act within the bounds of the authority that Congress has granted them when it comes to delegated legislation. According to the doctrine of non-delegation, judges have the authority to overturn regulations that go beyond the authority rule’s bounds and Congress is unable to assign its legislative authority to other agencies. Additionally, courts consider whether regulations align with the goals of legislation and whether the agency’s rulemaking process adhered to the correct protocols. Furthermore, the 1946 Administrative Procedure Act (APA) provides a framework for judicial review of agency actions and sets procedural requirements for rulemaking. It gives powers to the courts to set aside agency orders that are arbitrary, capricious, an abuse of discretion, or otherwise unlawful. Although the United States relies on the judiciary to control delegated legislation, this process is characterized by a strong emphasis on the separation of powers and the checks and balances inherent in the American constitutional system.
Germany –In Germany, the constitutional framework includes judicial review of delegated acts as a fundamental component. Any transfer of legislative authority to administrative bodies is subject to judicial review because of the Grundgesetz (Constitution), the legal certainty principle, and the idea of parliamentary reservation. By determining whether delegated acts are constitutional, the Federal Constitutional Court contributes significantly to the upholding of the rule of law. The court confirms that these rules comply with the letter and spirit of the law and do not go beyond its authority. Such legal supervision encourages accountability, guards against potential misuse of assigned authority, and maintains the integrity of the German legal system.

Proposed Improvements:

Improving delegated legislation in India requires a holistic approach that addresses issues of transparency, accountability and procedural aspects of the legislative process. Here are several suggestions to improve India’s delegated legislation.

Clear and precise delegation: Ensure that the act of authorization clearly articulates the scope of the delegated authority and provides specific guidelines and limitations on the powers granted to the executive. This helps prevent overuse and ensures that delegated acts are consistent with the original legislative intent.
Consultation with stakeholders: Allow a process for meaningful consultation with stakeholders, including affected individuals, industries and civil society organizations, during the drafting of delegated legislation. It improves the quality of regulation by bringing together different perspectives and ensures that regulation is informed and balanced.
Parliamentary control: The role of parliamentary committees in monitoring and reviewing delegated acts must be strengthened. This includes regular reporting by the executive to the relevant parliamentary committees, enabling a more thorough review of regulations and their impact.
Audience Participation: By giving people a chance to comment on proposed regulations, you can promote public involvement in the legislative process. Public discussions, online forums, and other tools that support a more inclusive and transparent decision-making process can help with this.
Impact assessment: Establish a robust system to carry out impact assessments before introducing significant delegated legislation. This includes assessing economic, social and environmental impacts to ensure that regulations achieve their stated objectives without causing unintended harm.
Sunset Expressions: Insert sunset clauses in delegated legislation that require regular review and reauthorization of regulations. This helps to avoid unwarranted outdated regulations and encourages regular reviews of the necessity and effectiveness of existing regulations.
Training for designers: Provide training programs for government officials involved in the preparation of delegated legislation. This ensures that those responsible for drafting legislation have a thorough understanding of legal principles, policy objectives and the potential consequences of their decisions.
Digital work environments: Create user-friendly digital platforms to facilitate delegated legislation. This includes creating centralized databases containing up-to-date information on all regulations, making it easier for the public, businesses and lawyers to understand and comply with the law.
Statutory Review Mechanism: Maintain a robust and speedy judicial review mechanism to challenge delegated legislation. This ensures that individuals and entities affected by regulations can rely on the legality and constitutionality of such regulations.
Regular training and skill development: Invest in ongoing training and capacity building for judges to better understand the complex legal issues surrounding delegated legislation and ensure effective and informed judicial oversight.
International Best Practices: Study and incorporate international best practices in the field of delegated legislation, drawing on the experiences of other jurisdictions to inform reforms and improvements in India. Implementing these recommendations can contribute to a more transparent, accountable, and effective system of delegated legislation in India, promoting good governance and upholding the rule of law.

Conclusion:

In India, judicial review of delegated legislation is a crucial component of the constitutional framework that makes sure the executive branch’s powers are used within the legislatively established parameters. When evaluating the legitimacy of secondary legislation, courts are guided by the principles of reasonableness, ultra vires, procedural validity, comprehensible instructions, and non-delegable functions.

Strong jurisprudence that strikes a balance between the preservation of constitutional values and the necessity for effective administration has been developed as a result of significant decisions.

India must find the ideal balance between administrative autonomy and judicial review to advance a legal system that upholds accountability, good governance, and the rule of law as the country develops.

An ongoing conversation between the judiciary, To make sure that delegated lawmaking complies with the constitutional goal of a just and equitable society, the parliament and the executive branch must define the guiding principles of this process.

However, India’s delegated legislation needs a holistic approach to improve transparency, accountability, and procedural aspects. Key suggestions include clear and precise delegation, consultation with stakeholders, strengthening parliamentary control, promoting public participation, impact assessment, sunset clauses, training for designers, creating digital work environments, maintaining a robust judicial review mechanism, investing in ongoing training and skill development for judges, and incorporating international best practices.

Clear delegation ensures the scope of authority is clearly defined, consultation with stakeholders improves regulation quality, and parliamentary control strengthens the role of parliamentary committees. Public participation through public debates and online platforms promotes a more inclusive decision-making process. Implementing sunset clauses and training for designers ensures a thorough understanding of legal principles and policy objectives.

A robust judicial review mechanism and ongoing training for judges are also essential. Further, from the aforementioned case studies, it can be inferred that there exists some uniformity between the execution of judicial control over delegated legislation across the globe, the common principles used by a multitude of nations are; doctrine of Ultra Vires and the doctrine of Fairness and Reasonability.