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QUESTION | What are the various modes of judicial control of delegated legislation?
Importance - This question was asked in UPSC 2018 Law Optional mains paper
QUESTION POSTED ON | 07.10.2021
MODEL ANSWER WILL BE POSTED ON | 08.10.2021
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THE CONCEPT | Delegated legislation means subordinate legislation i.e. rules of laws made under the authority of an Act of Parliament.
The term ‘Delegated legislation’ is used in two senses-
a) to exercise the legislative power by subordinate agents, or
b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the powers conferred on it by the legislature”.
Modes of control of delegated legislation are-
·Parliamentary or legislative control
·Judicial control
·Executive or Administrative control
Judicial control of delegated legislation
Judiciary exercises effective control over delegated legislation in India. The validity of delegated legislation can be examined by the courts on various grounds. Article 246 distributes legislative powers based on three lists, i.e. Union list, State list and Concurrent list. Court exercises its power of judicial review to consider whether the delegated or subordinate legislation is consistent with the ‘Enabling Act’. If the law is inconsistent with the constitutional provisions or parent Act, then it would be declared as ultra-vires.
The delegated legislation would become invalid on the following grounds-
a)The delegating statute or enabling Act is unconstitutional.
b)The subordinate legislation violates the provisions of Constitution.
c)The subordinate legislation is ultra vires to delegating Act.
d)Delegated legislation is mala-fide
In re Delhi Laws Act case,[ AIR 1951 SC 347.] the majority of the Judges held the exercise of delegated law-making power invalid because the enabling Act exceeded the constitutional limits in permitting the Executive to repeal a law existing in the area.
In M/s. Dwarka Pd. v. State of U.P,[ AIR 1954 SC 224.] the court held clause 3(1) of U.P. Coal Control Order, 1953 ultra vires because it gave unrestricted power to the State Controller to make exceptions and even if he acted arbitrarily there was no check over him and no redress was available against it. Therefore, the Court held that it violative of Article 19(1 )(g) of the Constitution of India.
In the case of State of Rajasthan v. Union of India,[ AIR 1977 SC 1361.] it was held that if proclamation of President under Article 356 is in effect and power is used in mala fide manner then such proclamation can be challenged. The court has jurisdiction to review such malafide exercise of power.
In Kerala State Electricity Board v. Indian Aluminium Co.,[ AIR 1976 SC 1031.] the court held that delegated legislation is invalid if it is not within the scope of the rule-making power provided in the statute.