JUDICIAL CONTROL ON DELEGATED LEGISLATION
Author: Utkarsh Bhushan
Manipal University, Jaipur
ISSN: 2581-8465
ABSTRACT
The essay focuses on contemporary administrative law issues and the nexus between the Constitutional laws. The essay focuses on the evolution of the delegated legislation and the judicial control by the means of the constitutional remedies is dealt with all together.
The constitution entrusts the legislative functions to the legislative branch of the State and directs that the functions shall be performed by that body to which the constitution has entrusted and not by someone else to whom the legislature at a given time thinks it proper to delegate the function entrusted to it. A body of experts in the particular branch is undoubted integrity or special competence may probably be in a better position to exercise the legislative power in that branch but to the contrary, the constitution has chosen to invest the legislative power to the representative directed to, for and by the people. The legislature must confer and set standards for setting guidance to maneuver within the limits. Any delegation which transgresses this limit infringes on the constitutional scheme.
The judicial model of control and grounds of judicial review is accordingly dealt with as judicial control is the essential function to perform in respect of all the administration acted in the interest of justice and fair play. The position of the High Court/ Supreme Court is such that cannot be barred under Article 226 or 227 and Article 32 respectively to take in the matter for consideration.
The Supreme Court has shown imagination and innovativeness in the use of the remedy. The above Articles leaves to the court a good deal of elasticity to deal with the problem, so that besides the only issue of writ also order or direction can be given considering the appropriate circumstances. Independence of the Judiciary is the basic structure of our Constitution.
JUDICIAL CONTROL ON DELEGATED LEGISLATION
During the last century, one of the advances in the realm of law was the recognition, establishment and enforcement of principles and rules which were intended to govern and manage the agencies formed by the government by regulating functions and power. With the growth of governmental functions, it was noticed that it was not possible to undertake, regulate and control along with welfare activities like services, education and other similar activities by the government. Then a need of an expert was required to have special skills and experience rather than a politician which generally composes government, who should carry out the work and lead to the growth of Commission, Boards, Tribunals and other bodies to deal with diverse matters.
The control over the agencies was exercised by the ordinary courts through prerogative writs, but at times there was a delegation of independent power to which the court only saw were not exceeded or denied. In short, the court uses to set the boundaries under which the agencies had to maneuver.
When we compare India with England and France, the problem in England was how far and by what means ordinary courts could review or interfere whereas in France Administrative Tribunals were free of the control of ordinary civil court but were subjected to apex administrative court (Counsel d’etat) which carried investigation and redressed grievances in functioning. In America, there were administrative agencies but the ordinary court superintended and corrected their action. In India, Constitution has given the power to the High Courts under Article 226 and 227 which states about the prerogative writs which is not limited only to fundamental rights but also for other purposes and power of superintendence over all courts and tribunal respectively.
But there has been confusion and misunderstanding of the Power of superintendence and exercise of the different powers in judicial dicta of the highest court as conferring appellate or revisional jurisdiction. As far as Supreme Court is concerned, its power has been stated with great clarity in order to avoid ambiguity or confusion or concurrent jurisdiction and they were appellate by special leave, the Supreme Court had assumed jurisdiction and powers as if there is no difference between Article 32 and Article 226, which has been used in almost any purposes and recourse is taken to enlarge the power under Article 21 resulting extent and obliterated jurisdiction. Later the decision of the Supreme Court has been critically analyzed even a Seven Judges Bench in L. Chandrakumar has restored the majesty of High Courts and has limited the power of the Supreme Court by interpreting and virtually rewriting the Article 136 of the Constitution. In B. Krishna Bhat v. Union of India[1], Sabyasachi Mukharji CJ observed that Article 32 is not the nest for all the bees in the bonnet of the ‘public spirited person’ which in the earlier case of Sampath Kumar v. Union of India[2], it was held that the basic structure doctrine was not violated by the exclusion of the jurisdiction of the High Court as the power of the judicial review of the apex court was preserved and similarly because the Administrative Tribunal established under Article 323A vests similar power in respect of service matters.
With a known maxim Ubi jus ibi remedium (wherever it is right, there is remedy) and judicial review which the basic feature and also the doctrines of proportionality, legitimate expectation, public and judicial accountability is to be considered and it is to be dealt in ‘comprehensive and illuminative’ manner. As natural justice is undoubtedly an important concept in both constitutional law and administrative law.
The government has been pursuing a liberalization policy since 1991, in which it was focused on infrastructural development and neglected ordinary trade and business of the private enterprise. Impliedly state was to provide the regulatory network to ensure the working and function of private enterprise in consonance with Public Interest.
In today’s scenario, discretionary power are no longer the safe refuge for the administrative arbitrariness, there has been much more penetration by the judiciary by way of a judicial inquiry into how discretionary power is to be applied and liability has shifted on State for the Acts which causes harm to the people. The Supreme Court has recognized several rights of the people through its decision and has facilitated access of the common man to Judicial Remedies. Administrative law requires a strong culture of legalism, usage of legal methods to indicate illegal behavior of the authorities by civil society action group subject to their sentient.
The words of Griffith are justifiable that “..looking at the whole legislative process, it would perhaps be more realistic to say that the government makes the laws subject to prior Parliamentary consent.” The expression ‘Delegated Legislation’ is itself ambiguous. It is an excuse for the legislators, a shield for administrators and provocation for constitutional jurists. According to Traditional theory and in ideal State there has been Separation of Power, but as a matter of fact apart from ‘pure’ administrative function, the Executive also performs many legislative and judicial functions also.
According to Salmond[3], the legislature is either Supreme or Subordinate, the distinction between the same can be determined by the emphasis made in Chief Settlement Commr. V. Om Prakash[4], ‘the notion of inherent or autonomous law-making power in executive administration is a notion that must be emphatically rejected’. Delegation is the Act of making or commissioning a delegate, made by person or body other than the Sovereign in Parliament by virtue of the power conferred. When the function of legislation is entrusted to organs other than the legislature itself.
In Post-constitutional cases like Re Delhi law case[5] and Sardar Inder Singh v. State of Rajasthan[6], upheld and reversed the decisions held in Pre-constitutional cases like R v. Burah[7] and Jatindra Nath Gupta v. Province of Bihar[8]. However a dissenting opinion of Fazl Ali J upheld the provision as the extension of the act for the further period could not amount to the re-enactment and merely amounts to a continuance for which the legislature has contemplated against the CJ Kania, the power to extend the operation of the act beyond the period specified in the Act prima facie is a legislative function, it is for the legislature to state how long particular legislation will be in operation that cannot be left to the discretion of some other Body. Later, the Delhi law case which is also known as the bible of the delegated legislation was decided by the Supreme Court after the constitution came in force and was reference was made under Article 143 by the President. The outcome of the case was that certain principles were formulated and broad delegation of legislative power was judicially sanctioned and even in some cases Central Acts have held ultra vires on the ground of Excessive Delegation in Hamdard Dawakhana case[9].
From the discussions, it can be clearly established that the delegated legislation has come to stay and the ground reality of its existence and continuance in the legal system cannot be ignored, threats inherent in conferring wide powers on execution is equally grave at the same time. Therefore it is of tantamount importance that there should be proper exercise and control of legislative power by the executive at two levels (i) when the legislature has delegated such power in favour of executive and laid down policy and to perform essential functions (ii) there should be a ‘control mechanism’ the power so delegated is not abused by the executive and to ensure proper exercise of the power. The following words of Justice Subba Rao is totally relatable in the current scenario
‘It is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. But the liberal construction should not be carried by the courts to extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive authorities. It is the duty of the Court to strike down without any hesitation any blanket power conferred on the executive by the legislature’.
Whatever prejudice might have existed against the Delegated Legislature in the past has come to stay. Must be conceded that currently legislative powers can validly be delegated to the executive within permissible limits. One has to find out the middle-way between two conflicting principles, Delegation has become an inevitable but the question of control has become crucial, what control and safeguards can and ought to be introduced so that rule-making power conferred on Administration is not misused or misapplied.
Although the courts in India have held that the delegation of the essential legislative power is not permitted by the Indian Constitution but in practice, they have upheld the delegation of the legislative power of the widest possible amplitude. It’s been a general acceptance that it is better to concentrate on control of the exercise of such delegation power through effective judicial and legislative supervision instead of objecting to the delegation of the Legislative power itself.
The committee on Ministers’ Power in their report summarized the Principal arguments of those who criticized delegated legislation and made recommendations for the reform of the Law relating to delegated legislation with the view to overcoming the objections, it made recommendations for adequate publicity, effective control, vigilant judicial control democratization of the process of delegated legislation by needed consultation and affected interest.
There is no general provision for publication of subordinate legislation however Supreme Court held that the publication in an official Gazette is mandatory[10] and also observed that publication of the sub-delegated legislation was necessary to give it legal force where the parent statute contained a provision requiring publication of rules in the official Gazette. The failure to publish vitiates the rule and that the defect cannot be cured by a statutory provision which the rules from being challenged in the court[11]. Although there is no general provision for the publication of delegated legislation usually the enabling section of the Act or the enabling Acts requires that the rules made by notification in the Official Gazette or any other mode prescribed in the statute. The effect of the act will take effect from the date of publication and not necessarily from the date of notification.
There are provisions for the antecedent publicity in England as well as in the United States. But in India, there is no statutory provision of a general character requiring the giving of antecedent publicity to the proposed rules but some rules under the Acts require ‘previous publication’ example coal mines act, 1952 or Motor Vehicle Act, etc and contains very elaborate provisions for the publication which makes it possible for those who are likely to be affected by the rules to make their objections, suggestions or comments upon the draft rules and considering such makes the rule-making process more democratic.
The post-enactment and the pre-enactment control is the second level and initial control simultaneously, that the supervision over delegated legislation rather over delegating legislation that is more important and effectuated by the two methods.
Administrative actions are legislative, judicial and purely executive. The delegated legislature is an exercise of the legislative function by the executive, there are some functions that are quasi-judicial which the administrative authority is required to adjudicate. There are functions that involve the exercise of discretion and there are those that are purely ministerial. The administration is the junction where three pillars namely legislature, judiciary and executive meets. Executive performs the residue of all those functions which are not vested in the other two branches of the government. It won’t be wrong to state that the function of three different organs is telescoped into one single authority[12]. The rules of natural law justice were only attracted to quasi-judicial action which lately created a dichotomy between quasi-judicial and administrative action. The scope of judicial review of legislative action is narrower compared to the scope of judicial review of administrative action.
The legislative function has characteristics of generality and prospectivity, a rule issued by the administration in the exercise of its power of delegated legislation is addressed to indicated but the unnamed and unspecified person or situation. Both legislature and executive can be easily be distinguished that the former is the process of formulating a general rule of conduct without reference to a particular case and is prospective i.e usually operating in the future and the latter is the process of performing particular acts of issuing particular orders or of making a decision involving the application of general rules in particular cases[13].
In Tamil Nadu v. K Sabanayagam[14], Supreme Court observed that there were three types of conditional legislation (i) the power to apply the act to a given area, (ii) power to withdraw an Act from the operation, (iii) power exercisable upon satisfaction of delegate by class of person seeking the benefit of exercise of such power. It is a legislative function but in order to be fair, such a function has to be performed after hearing the persons likely to be affected. The difference in legislative and quasi-judicial function lies in the fact that legislative function is held for informing the decision-maker whereas quasi-judicial function is held to adjudicate a dispute. The distinction between legislative and judicial function was stated by the Supreme Court in Indira Gandhi v. Raj Narain[15] case.
When a body other than a Court or Tribunal has to act judicially while exercising its legislative or administrative functions is said to act quasi-judicially. A judicial function pre-supposes the existence of a dispute between two or more parties and having requisites like (i) presentation of the case, (ii) dispute between parties is a question of fact (ascertained by evidence), (iii) dispute between them is a question of law, (iv) decision based on a finding of facts and application of law of the land including ruling upon any disputed question of law.
A quasi-judicial involves the first and the second requisites mentioned in the above paragraph including pre-supposition of the dispute, but not necessarily involves the third and never involves the fourth, the place of the fourth requisite is taken by an administrative action for which the character is to be determined by the minister’s free choice. Where classification is required for deciding, the court uses the word ‘judicial’ in respect of all functions performed by administrative bodies or persons which are not purely ministerial or discretionary[16]. The classification of administrative action as quasi-judicial is not always easy, as it is a mixture of quasi-legislative, quasi-judicial and administrative functions. But identifying them distinctly is also important as the remedies, judicial review and procedural requirements for considering its functions.
It has also been observed that the subordinate legislation cannot be challenged on the ground of being mala fide. In V K Sood v. Secretary, Civil Aviation[17] case, where the qualification prescribed for the appointments were challenged as having been tailor-made to suit certain individuals the challenge was rejected. The doctrine of ultra vires should not be exercised without the concern for policy and particularly is detrimental to the interest of an individual.
Control over the delegated legislation may be divided into three categories which are (i) judicial control, (ii) Legislative control and (iii) Other control.
The judicial control is ought to be extensively be discussed followed by the briefs of the legislative and other control.
Legislative control is subject to the parliament to confer the power upon but if it delegates legislative power to other authority then it must also ensure that those power are properly exercised. Krishna Iyer J[18] has rightly stated that the parliamentary control over the delegated legislation should be living continuity as a constitutional necessity. The underlying object of parliamentary control is to keep a check and balance over the rule-making authorities and also to provide an opportunity to criticize them if there is an abuse of power on their part[19]. This mechanism is popularly termed as “legislative veto”(as per the Schwartz, Administrative Law).
Over and above judicial and parliamentary Control sometimes other controls and safeguards are also exercised, one such safeguard against the abuse of delegated power is to properly and precisely limit the power of the delegate, and if the power is not properly defined or language is inclusive of broad interpretation the executive authority must usurp the power of the legislature which tempted into unjustified interference with the rights of the individual. The court also should interpret the provision of rules and regulation in such a manner so as not to give blanket interpretation or power to the executive authority.
There is only a complacent presumption that those who occupy high seats have a high sense of responsibility. The presumption is neither legal nor rational. History doesn’t support it and reality doesn’t warrant it. When in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave the aspect of its life to be governed by discretion when it can be conveniently sorted and covered by the rule of law[20].
Delegated legislation does not fall beyond the purview of judicial review and it is accepted that the court can decide the validity of the delegated legislation by applying two tests that are Substantive ultra vires and secondly Procedural ultra vires, the meaning of the words can be understood as “ultra vires” means lack authority or when a person or body of persons which is beyond his power and authority, it simply relates to the capacity or authority of the person.
Substantive ultra vires mean that the delegated legislation goes beyond the scope of authority conferred on it by the parent statute or by the Constitution. When the act of the legislature enacts in excess of the power conferred. Delegated legislation may be held invalid on the ground that where the parent Act is unconstitutional or has delegated the essential legislative functions, where the delegated legislation is inconsistent with parent Act or general law or is unconstitutional or arbitrary, unreasonable or mala fide. Where delegates further delegates (sub-delegation) and where it excludes judicial review or operates retrospectively.
Procedural ultra vires is when the parent Act or enabling statute while framing rules, bye-laws, regulations etc, is required to observe the prescribed procedure and holding of consultations with particular bodies or interest. It is necessary duty and responsibility on the part of the Delegate to comply with the procedural requirement, and failure to comply would result in Procedural ultra vires. The two procedural requirements of the procedure are Publication and Consultation. Fundamental principles of law behind these is that ‘ignorance of law is no excuse’ and the term ‘consult’ implies a conference of two or more person and a process requires the meeting of mind. It is an important measure to check and control the exercise of the legislative power by the Executive. The process of exchange of ideas is beneficial to both to the affected interests itself and rulemaking authority.
In the case of State of T.N. v. State of Kerala and Anr[21]. Supreme court held that the ‘public trust doctrine’ principle has no application in context of safety of Mullaperiyar Dam, the court held by applying ‘public trust doctrine’ or ‘precautionary measure, legislature cannot do an act in conflict with the judgement of the highest court which has attained finality, the legislature cannot by invoking the above doctrine indirectly control the action of the Court and directly or indirectly set aside the authoritative and binding finding of the court. The state’s sovereign interest provide the foundation of public trust doctrine but the judicial function is also very important function of the State.
The discretionary power that became an object of Prof Dicey’s criticism in monumental treaties on Constitutional law[22] which according to him was the source of inequality, discrimination and of arbitrary action, and hence was negation of the rule of law. According to Dicey, Rule of Law warranted absolute predictability of administrative action. The grant of discretionary power created the possibility of abuse of power and uncertainty.
The words of Justice Coke and Douglas on the administrative discretion states that the discretion is the science or understanding to discern between falsity and truth, between right and wrong, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. The law has reached the finest moments when it has freed the man from the unlimited discretion of some ruler…where discretion is absolute man has always suffered. The opinion on the Administrative discretion of these two jurist is different to that of the Prof. Dicey.
A review court is not supposed to substitute its own decision regarding a matter that has been entrusted to an administrative authority, the decision has to be taken in the right manner is to be considered rather the decision of administrative authority is right. In Chitta Ranjan Mishra v Utkal University[23], Court are not concerned whether the decision by the administrative authority is right but whether the decision of the administrative has taken decision in the right manner.
Courts have made a distinction between the exercise of the discretion, which involves making of a policy and the exercise of the discretion cautiously. Court refused to interfere in the absence of any evidences of Malafide or colourable exercise of the power or non-application of mind[24]. The Supreme Court held that fixing a method that would be used for the reservation of seats was the function of the executive authorities of the state and not of the Court. The court should not interfere with the criteria or the methodology unless they violate the provision of the Constitution clearly[25]. Discretion to be exercised accordingly without the interference of the Court. The constitutional bench of the Supreme Court in the case of State of T.N v. State of Kerala and Anr[26] held and pointed out the basic doctrine of separation of Power that even without the express provision it is entrenched principle of the constitution and the independence of the court from the executive and legislature is a fundamental to the rule of law, besides relevance of Article 14 and breach of the same independence of the judiciary may amount to the negation of the equality Under Article 14.
The most effective control of administrative action is through judicial control. Article 32 sand 226 of the constitution provides power upon the Supreme Court as well as High Court to issue any direction, order or Writ. Under Article 32 the Supreme Court is confined to enforcement to the Fundamental Rights only but as far as High court is concerned the power under Article 226 is extended to all administrative actions which are amenable to Writ jurisdiction. In India, there is no law for the purpose of regulating and controlling administrative action. Today the dire need or reliance over Judicial control is made to control the administrative action. The power of the state and the centre is well distinguished and demarcated, but nevertheless the possibility of transgression still exists. Article 162 provides provisions subject to the constitution similar to the Article 73 that provides executive power of the Union shall extend to all the matters with respect to the parliament in which it has the power to make law and also to exercise such authority and jurisdiction. The two Articles demarcate the extent of the executive power. In case of conflict or overlapping the same can only be controlled or corrected by the Judiciary. They can issue writs and as well as injunctions under the same.
The role of the Supreme Court and the High Court is that of a custodian and guarantor of the fundamental rights under the Constitution[27]. An aggrieved party has right to approach the Supreme Court and High Court simultaneously under Article 32 and Article 226 of the constitution for the appropriate writ, direction or order. They are extra ordinary or prerogative remedies. Article 132 to 135 deals with the appellate powers of the Supreme Court in the constitutional matter and in civil and criminal cases. Article 139A enables the Supreme Court to withdraw or transfer cases from one Court to another. Or from one or more High Courts to itself or to any other High Court. Article 143 enables the President to consult the Supreme Court and seek its opinion on any question of law or fact of public importance.
Article 136 of the Constitution confers extraordinary power of the Supreme Court to grant Special Leave Petition from any judgement, decree, determination, sentence or order passed by the Court or tribunal[28]. In case of UOI v. Ashok Kumar Aggarwal[29] the jurisdiction under Article 136 of the Supreme Court in the nature of special or residuary powers exercisable in cases where needs of the justice demands interference. Justice Krishna Iyer in the case of Sadhananatham v. Arunachalam[30] in his unique style stated and summarised the ambit and purpose of the provision in one sentence that “ when extra-ordinary power under Article 136 chases injustice and sky is the limit.”
The constitution for the best reason did not choose to fetter or circumscribe the power exercisable under this article 136 in any way.[31]
Article 137 of the constitution enables the Supreme Court to review ‘any judgment’ pronounced by it. The question raised in the case of Rupa Ashok Hurra v. Ashok Hurra[32] that whether no remedy is available after the disposal of the review petition and the answer was Curative Petition which is a prerogative remedy and only available on the grounds of violation of principles of natural justice. In order to prevent abuse of process of law and to cure gross miscarriage of justice.
The wide and plenary power of the Supreme Court is not subject to limitations. Moreover, the said power is constitutional and cannot be diluted or curtailed by ordinary parliamentary process. The Supreme Court can grant special leave and hear appeal even though no statute has provided such appeal, or under relevant statute an alternative remedy is available, or an order passed by the tribunal is made ‘final’.
Besides the constitution, Section 115 of the Code of Civil Procedure provides that a High Court might call for the record of an inferior Court and if there has been absence of jurisdiction or failure to exercise jurisdiction it could make orders as to regularise the irregularity. This is a similar provision to Certiorari, although it didn’t took away High Court’s power to issue a Writ of Certiorari.
A petition under Article 32 may be rejected on the ground of inordinate delay. Delay, however by itself may not defeat the petitioner’s claim for relief unless the position of the respondent has been irrevocably altered or she would be put to undue hardship[33].
Supervisory power under article 227 is extraordinary in nature and it cannot be claimed as a right of the party, it is the discretion of the High Court to exercise such power and when native remedy is available to the applicant the High Court may refuse to exercise the power. It is undoubtedly confers wide and extensive power of the High Court over all the subsidiary Courts and tribunals throughout the territory in relation to the exercise of the Jurisdiction. They are both judicial as well as administrative and they can be exercised to advance the cause of justice.
The farsightedness of the makers of the Indian Constitution is to be seen in drafting the Article 32 and 226 which confers the power to issue appropriate remedies against illegal legislative as well as administrative acts. In recent years the court have given directions and orders of varied nature[34]. The activism of the Court in substantive law has been matched by activism in designing new remedies, ranging from the orders for compensation[35]. Supreme Court by the virtue of the provision of the Article 142 of the Constitution, has the jurisdiction to pass such orders as is necessary for doing the complete justice in any cause or matter pending before it. Some decision though were subjected to severe criticism. The High court do not have such extensive power but they can design new methods of giving reliefs to the injured person.
[1]( 1990)3 SCC 65.
[2] (1987)I SCC 124 (1987) 2 ATC 82.
[3] Salmond on Jurisprudence
[4] AIR 1969SC 33.(1968) 3SCR655.
[5] AIR 1951 SC 332 SCR747
[6] AIR 1957 SC 510
[7] 1878 LR 3 AC 889
[8] AIR 1949 FC 175
[9] AIR 1960 SC 554
[10] Narendra Kumar v. India AIR1960 SC 430
[11] Govindlal v Agriculture Produce Market Committee AIR 1976 SC 263
[12] Schwartz, Administrative Law, p31(1976)
[13] Griffith and Street, Principles of administrative Law, P 15 (1963)
[14] 1998 1 SCC 318
[15] AIR 1975 SC 2229
[16] TC Basappa v Nagappa AIR 1954 SC 440
[17] 1993 Supp (3) SCC 9.
[18] Avinder Singh v State of Punjab (1979) I SCC 137SC 321
[19] Lohia Machines Ltd v. UOI 1985 2 scc197
[20] DTC v. Mazdoor Congress, 1991 Supp (I) SCC 600
[21] 2014 12 SCC 696: AIR 2014 SC 2407
[22] Dicey, AV, Law of the Constitution (Macmillian, 1952)
[23] AIR 2001 Ori 17.
[24] 1995 Supp (2) SCC 382, 1995 (1) SCC 652.
[25] Sandeep Barar v Punjab AIR 1993 SC 1313
[26] 2014 12 SCC 696: AIR 2014 SC 2407
[27] K K Kochunni v Madras AIR 1959 SC 725
[28] V G Ramachandran, law of writs Vol II (2006) 1440-1528
[29] 2013 16 SCC 147: 2014 3 SCC (L&S) 405.
[30] 1980 3 SCC 141, 146: AIR 1980 SC 856
[31] AIR 1954 SC 520
[32] 2002 4 SCC 388
[33] Hindustan petroleum Corporation Ltd V. Dollydas 1999 4 SCC 450
[34] Laxmikant Pandey v India AIR A1987 SC 232
[35] Rudal Shah v. Bihar AIR 1983 SC 1086