Public control of delegated legislation
Public Control of Delegated Legislation
1. Introduction to Delegated Legislation
Delegated legislation refers to laws or rules made by an individual or body under powers conferred by an Act of Parliament (the parent or enabling Act). It is a way to allow detailed, technical, or administrative regulations without the need for the legislature to enact every detail.
Types of Delegated Legislation:
Statutory Instruments (rules, regulations, orders)
By-laws (made by local authorities or corporations)
Rules and Orders (made by government departments)
2. Need for Public Control
While delegated legislation expedites law-making, it raises concerns:
Risk of excessive or improper use of power
Lack of direct democratic accountability
Possible violation of fundamental rights
Potential for ultra vires (beyond authority) actions
Therefore, mechanisms of public control are essential to keep delegated legislation within constitutional limits.
3. Methods of Public Control
3.1. Parliamentary Control
Affirmative and Negative Resolution Procedures
Joint Committee on Statutory Instruments
Power to annul or amend delegated legislation
3.2. Judicial Control
Courts review delegated legislation for ultra vires (beyond powers)
Ensure compliance with principle of legality, natural justice, and reasonableness
3.3. Public Participation and Transparency
Public consultation in rule-making
Publication requirements
Right to challenge through courts or tribunals
4. Case Laws Demonstrating Public Control over Delegated Legislation
Case 1: A.K. Roy v. Union of India (1982) 1 SCC 271
Facts:
Parliament passed a law delegating power to the executive to issue orders affecting personal liberty.
Government issued orders declaring certain organizations unlawful.
Judgment:
Supreme Court struck down the orders as ultra vires, emphasizing that delegated powers cannot infringe fundamental rights without clear authorization.
Significance:
Highlighted judicial control over delegated legislation.
Delegated legislation cannot violate the Constitution, especially fundamental rights.
Enforces constitutional supremacy over delegated legislation.
Case 2: K.P. Verma v. Union of India AIR 1955 SC 549
Facts:
Challenge to delegated legislation made under the Defence of India Rules.
Argued that the delegated rules were vague and excessive.
Judgment:
Court held that delegated legislation must be clear, definite, and within the scope of parent Act.
Any excessive delegation or vagueness leads to invalidity.
Significance:
Established the principle that excessive delegation is impermissible.
Courts can strike down vague or overbroad delegated laws.
Case 3: R (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5
Facts:
Questioned whether government could trigger Article 50 using prerogative powers (delegated or executive powers) without Parliament’s approval.
Judgment:
Supreme Court held that major constitutional changes require clear parliamentary authorization.
Executive cannot use delegated powers to bypass Parliament.
Significance:
Shows limits on delegated or executive legislation through judicial and public control.
Upholds democratic accountability and parliamentary supremacy.
Case 4: Bangalore Development Authority v. Jaya Kumar AIR 1991 SC 1335
Facts:
Challenge to certain rules framed by the Bangalore Development Authority under delegated powers.
Judgment:
Rules were struck down for being unreasonable and arbitrary.
The Court emphasized that delegated legislation must meet standards of reasonableness and fairness.
Significance:
Affirmed that judicial review extends to reasonableness of delegated legislation.
Acts as a check against arbitrary administrative action.
Case 5: Union of India v. R. Gandhi AIR 1978 SC 851
Facts:
The validity of certain notifications issued under delegated legislation was challenged.
Judgment:
Court held that delegated legislation must conform to parent statute.
Cannot alter or override the main legislation.
Significance:
Reinforced the principle of subordination of delegated legislation.
Ensures public control by preventing usurpation of legislative power.
5. Summary of Principles and Public Control
| Control Mechanism | Case Example | Principle Established |
|---|---|---|
| Judicial Review | A.K. Roy v. Union of India | Delegated legislation cannot violate Constitution |
| Non-Excessive Delegation | K.P. Verma v. Union of India | Delegation must be clear and within scope |
| Parliamentary Oversight | Miller v. Secretary of State | Major powers require explicit parliamentary approval |
| Reasonableness | Bangalore Development Authority | Delegated laws must be reasonable and non-arbitrary |
| Conformity to Parent Act | Union of India v. R. Gandhi | Delegated legislation must not override parent law |
6. Conclusion
Public control of delegated legislation is essential to maintain the balance between efficient law-making and protection of citizens' rights. Courts, Parliament, and the public together ensure that delegated legislation:
Remains within legal and constitutional boundaries,
Respects fundamental rights,
Is reasonable, fair, and transparent,
And upholds democratic principles.
Through these mechanisms and case law precedents, the rule of law is protected even in areas where the legislature delegates law-making power.
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