Model Answer
0 min readIntroduction
In contemporary governance, the increasing complexity and volume of legislative business necessitate the delegation of law-making powers from the legislature to the executive, known as delegated legislation. This process empowers administrative authorities with considerable administrative discretion to frame detailed rules, regulations, and by-laws for effective policy implementation. While indispensable for efficiency and technical expertise, this delegation inherently carries the risk of misuse or arbitrary exercise of power. The statement, "Delegated legislation should be clear and should confine to the limits determined by the legislature," underscores the foundational principle that such delegated authority must operate within clearly defined boundaries to prevent the arbitrary exercise of administrative discretion and uphold the rule of law.
Understanding Delegated Legislation and Administrative Discretion
Delegated legislation refers to the laws, rules, regulations, orders, notifications, and by-laws made by an authority other than the legislature, under the powers conferred upon it by an Act of Parliament or a primary statute. It is also known as subordinate or secondary legislation, as it derives its authority from a primary piece of legislation.
Administrative discretion is the flexible exercising of judgment and decision-making allowed to public administrators when applying broad policies to specific situations. It enables officials to assess individual cases based on unique circumstances rather than mechanically adhering to rigid rules, ensuring adaptive and nuanced governance.
The need for delegated legislation arises from several factors:
- Volume and Complexity: Legislatures are overburdened and lack the time to delve into intricate details of every law.
- Technical Expertise: Many modern laws, especially in areas like technology, environment, or finance, require specialized knowledge that administrative bodies possess.
- Flexibility and Adaptability: Rules and regulations can be amended quickly to respond to changing circumstances without a full legislative process.
- Emergency Situations: Rapid response is often needed during crises, which delegated legislation facilitates.
However, the broad scope of delegated legislation and the discretion it vests in the executive can lead to concerns about accountability, transparency, and the potential for arbitrary actions, if not properly checked.
Checks on Misuse of Administrative Discretion
To ensure that administrative discretion remains within the confines of legislative intent and constitutional principles, a multi-faceted system of controls is essential. These checks emanate from various organs of the state and civil society:
1. Legislative Control
Parliament, being the delegating authority, retains ultimate control over delegated legislation and, by extension, the administrative discretion exercised under it. This control is both direct and indirect:
- Enabling Act: The parent Act itself lays down the policy, objectives, and broad framework, thereby limiting the scope of delegated power. It must provide clear guidelines and standards for the delegate.
- Laying Procedures: Many statutes require delegated legislation to be "laid" before one or both Houses of Parliament. This provides an opportunity for legislators to scrutinize, discuss, and even annul the rules. While there is no uniform statutory provision in India for laying, it is a commonly adopted procedural safeguard.
- Committee on Subordinate Legislation: Both Lok Sabha and Rajya Sabha have Committees on Subordinate Legislation. These committees examine whether the delegated powers have been properly exercised within the scope of the delegation, ensuring adherence to the parent Act, constitutional principles, and avoiding retrospectivity or excessive taxation.
- Parliamentary Questions and Debates: Members of Parliament can raise questions, engage in debates, and move resolutions regarding specific delegated legislation or instances of administrative discretion, thereby ensuring accountability.
2. Judicial Control
The judiciary acts as a crucial guardian against the arbitrary exercise of administrative discretion through the power of judicial review. Courts can strike down delegated legislation and administrative actions on various grounds:
- Ultra Vires: This is the most common ground. Delegated legislation can be challenged if it goes beyond the powers conferred by the enabling Act (substantive ultra vires) or if proper procedures were not followed (procedural ultra vires).
- Unconstitutionality: If the delegated legislation violates any provision of the Constitution, particularly fundamental rights (Articles 14, 19, 21), it can be declared void. The Supreme Court in cases like In Re Delhi Laws Act (1951) clarified that essential legislative functions cannot be delegated.
- Arbitrariness and Unreasonableness: Under Articles 14 and 19, courts can scrutinize administrative actions for being arbitrary, unreasonable, discriminatory, or based on irrelevant considerations. For example, in Air India v. Nargesh Meerza (1981), the court struck down a service regulation deemed violative of Article 14.
- Mala Fide Exercise of Power: Actions taken with bad faith or for an ulterior purpose not envisaged by the statute can be quashed.
- Procedural Fairness (Natural Justice): While direct application to delegated legislation is limited, procedural requirements like publication and consultation, if mandated by the parent Act or judicial pronouncements (e.g., Harla v. State of Rajasthan on publication), must be adhered to.
- Doctrine of Proportionality: Courts examine whether the administrative action taken is proportionate to the objective sought to be achieved, preventing excessive or unduly harsh measures.
3. Executive and Administrative Control
The executive branch itself has internal mechanisms to prevent the misuse of discretion:
- Hierarchical Control: Superior administrative authorities can review, revise, or revoke decisions made by subordinates.
- Prior Consultation and Scrutiny: Before finalization, many rules undergo scrutiny by legal departments, inter-ministerial consultations, and expert committees.
- Publication: Ensuring adequate publicity of delegated legislation, often through official gazettes, makes it accessible to the public and subject to public feedback and awareness.
- Vigilance and Anti-Corruption Bodies: Institutions like the Central Vigilance Commission (CVC) and Lokpal/Lokayukta investigate complaints of corruption and abuse of power by public servants.
- Code of Conduct and Ethics: Civil servants are bound by codes of conduct that guide their discretionary actions, emphasizing fairness, impartiality, and public interest.
4. Public and Citizen-Centric Controls
An informed and engaged citizenry, along with civil society, plays a vital role:
- Right to Information (RTI) Act, 2005: Empowers citizens to seek information on administrative decisions and processes, promoting transparency and accountability.
- Public Consultations: Many enabling Acts or government policies mandate public consultations before finalizing rules, allowing affected parties to provide input.
- Media Scrutiny: The media acts as a watchdog, highlighting instances of arbitrary decisions or misuse of power, thereby fostering public discourse and pressure for corrective action.
- Civil Society Organisations (CSOs) and NGOs: These groups often advocate for transparent and accountable governance, bring grievances to public attention, and even resort to public interest litigation (PIL).
Comparison of Control Mechanisms
| Control Mechanism | Description | Key Features and Impact |
|---|---|---|
| Legislative Control | Parliamentary oversight through scrutiny of enabling Acts, laying procedures, and specialized committees. | Ensures delegation stays within legislative intent; checks excessive delegation; promotes democratic accountability. Example: Committee on Subordinate Legislation. |
| Judicial Control | Courts review delegated legislation and administrative actions for legality, constitutionality, and reasonableness. | Strikes down ultra vires or unconstitutional rules; prevents arbitrary and mala fide use of power; upholds fundamental rights. Example: Judicial review. |
| Executive Control | Internal mechanisms within the administration, including hierarchical review, pre-legislative scrutiny, and vigilance. | Promotes adherence to rules, ethical conduct; ensures administrative efficiency and transparency in internal processes. Example: CVC investigations. |
| Public Control | Citizen engagement, media scrutiny, and civil society activism. | Increases transparency and accountability; enables public feedback; allows citizens to challenge arbitrary decisions. Example: RTI Act, public consultations. |
Conclusion
The dictum that "Delegated legislation should be clear and should confine to the limits determined by the legislature" is fundamental to preventing the misuse of administrative discretion and maintaining the delicate balance of powers in a democratic system. While delegated legislation is an undeniable necessity for efficient governance, a robust framework of legislative, judicial, executive, and public controls is imperative. By ensuring clarity in delegation, strict adherence to statutory limits, effective oversight, and citizen participation, the potential for arbitrariness can be minimized, thus strengthening the rule of law and enhancing public trust in the administrative machinery.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.