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SIT DOLOR AMET
Modes of Control over Delegated
Legislation
The practice of conferring legislative powers upon administrative authorities
though beneficial and necessary is also dangerous because of the possibility
of the abuse of power. Wider discretion is most likely to result in arbitrariness.
For the reason, there are certain other methods of control emerging in this
field. The control of delegated legislation may be one or more of the following
types:
1. Procedural
2. Parliamentary and
3. Judicial.
Judicial Control
1. Doctrine of Ultra vires
2. Use of Perogative writs
Doctrine of Ultra vires
The validity of delegated legislation would be determined by the courts by
applying two tests. They are the following:
1. Substantive ultra vires, and
2. Procedural ultra vires test.
If the delegated legislation has gone beyond the scope of the authority
conferred on the executive by the Parent act or by the Constitution, The
delegated legislation would be declared as invalid on the ground of
substantive ultra vires.
In Indian Council of legal aid And advice vs Bar Council of India (1995)
the Bar Council of India framed a rule and barred enrolment as advocates of
persons who had completed 45 years of age. The parent act that is,
advocates act 1961 enables the Bar Council to lay down conditions subject to
which “an advocate shall have right to practise”. Thus Bar Council has power
to make rules to regulate the right to practice after a person is enrolled as an
advocate. It cannot frame a rule barring persons from enrolment. SC declared
the rule as ultra vires.
If a subordinate legislation fails to comply with certain procedural
requirements prescribed by the parent act or by the general law it is known
as procedural ultra vires..
Writs
It is an order issued by the court requiring something to be done or give
authority to do a specific act.
Procedural Control
(a). Prior consultation of interest likely to be affected by proposed delegated
legislation
(b). Publication
The rules of Publication Act , 1893
Statutory Instruments Act, 1946
In the case of Harla v. State of Rajasthan (1951) there was no provision in the
parent act requiring publication of the delegated legislation. SC held that though there
was no statutory requirement of publication, the rules were to be published for its
validity. Since the rules were not published, the rules were to be invalid.
Parliamentary Control
Under the Rule of Procedure and Conduct of Business of the House of the
People, provision has been made for a Committee which is called “
Committee on Subordinate Legislation”.
The First Committee was constituted on 1st December 1953, for
i. To examine whether the rules comply with the general object of the Act
and the Constitution
ii. Whether the Act is better equipped to deal with matters delegated in the
rules, and
iii. Does the delegated authority deal with imposition of tax?
It is usually presided over by a member of the Opposition.
The Committee of the First House of People submitted a number of reports. It
made certain recommendations in its first report (1954) which it later
modified in its Third Report (1955). The following are the modified
recommendations:
o The Acts containing provisions for making rules etc. shall lay down such
rules on the Table asap.
o All these rules shall be laid on the Table for a uniform and total period of 30
days before the date of their final publication.
o On recommendation of the Committee, the bills are generally accompanied
with Memorandum
of DL in which:
(a). Full purpose and effect of delegation of power to the subordinate
authorities
(b). Points which may be covered by the rules
©. The manner in which such power are to be exercised.
Delegatus non potest delegare
It means No delegated powers can be further delegated. In the absence of such a power this
further delegation is bad in law and the court will strike down that delegation.
In Central Talkies v. Dwarka Prasad (1961) the UP (temporary) control of rent and Eviction Act
1947 provided that no suit shall be filed for the eviction of a tenant without permission either of a
district magistrate or any officer authorised by District Magistrate to perform any office functions
under the act. The district magistrate authorised additional district magistrate to give permission to
sue for the eviction. ADM granted permission to sue for eviction , it was challenged and court
held that the order granting permission by the ADM was valid.
Title Lorem Ipsum
LOREM IPSUM DOLOR SIT NUNC VIVERRA IMPERDIET PELLENTESQUE HABITANT
AMET, CONSECTETUER ENIM. FUSCE EST. VIVAMUS MORBI TRISTIQUE
ADIPISCING ELIT. A TELLUS. SENECTUS ET NETUS.
