Monday, July 21, 2008

Delegated Legislation

The delegation of legislative functions by the legislature to the executive has become necessity. The delegated legislation, now a days, a necessary evil. The growing tendency of Delegated legislation may result in ‘new depotism’ if it is not properly controlled.

What is delegated legislation?

Mukherjia J says,
“Delegated Legislation is an expression which covers a multitude of confusion”.

Jain and Jain
‘ the term delegated legislation is used in two senses
a) the exercise by a subordinate agency of the power delegated to it by the legislature
b) the subsidiary rules themselves whichare made bythe subordinate agency in pursuance of the power conferred on it by the legislature

Salmond,
‘that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or superior authority’

Donoughmore committee on Ministerial power
‘ the term delegated legislation means
a) the exercise of law making power by the executive under the authority delegated to it by parliament
b) the rules, regulations, bylaws etc made by the executive in theexercise of law making power delegated to it by the parliament.

The Supreme Court of India Agricultural Marketing Committee V Shalimar chemical Works Ltd AIR 1997 SC 2502
‘ Delegated legislation is the legislation which proceeds from any authority other than the soverign power and depend on source superior authority for its continued existence and validity’.

‘Delegated legislation refers to all law making which takes place outside the legislature and is generally expressed as rules, regulations, byelaws, orders, schemes, directions or notifications’.

The statute enacted by the legislature conferring the legislative power upon the executive is known as the ‘Parent Act’ or ‘Primary law’ and the rules, regulations byelaws, orders, etc made by the executive in pursuance of the legislative power conferred by the legislature are known as subordinate laws or subsidiary laws or child legislation.

REASONS FOR THE GROWTH OF DELEGATED LEGISLATION
pressure upon parliament’s time
Technicality (AIR 1997 SC 2502)
Flexibility
Experiment
To tackle Emergency situations
unforeseen contingencies
Complexity of Modern Administration

CLASSIFICATION OF DELEGATED LEGISLATION

Title based classification
Rule: For the definition see the General Clauses Act 1897
Regulation: An instrument by which decisions, orders and acts of government are made known to the public.
Order: in general order refers to Administrative Rule making.
Bye-laws: Rules made by semi-governmental authorities established under the Acts of Legislature
Directions: Expression of Administrative Rule making under the authority of law
Scheme: It is the situation where the law authorizes the administrative agency to lay down a framework.
Distinction based classification
Subordinate legislation: The process consist of discretionary elaboration of rules and regulations
Conditional Legislation: The statute that provides control but specifies that they are to go in to effect only when a given administrative authority finds the existence of conditions defined in the statute itself.

Thursday, July 17, 2008

On Rule of Law

Though the idea of the rule of law was not introduced by Dicey, he may be credited for popularising it. In his book Introduction to the study of law of the constitution (1885), he defended Britain’s system of an unwritten constitution and argued that this was a positive gain. Dicey summarised the rule of law under three heads.
1. Supremacy of the Law: No man could be punished or lawfully interfered with by the authorities except for violation of law. In other words, all government actions must be authorised by law. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law.

2. Equality before the Law: No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion.
3. Predominance of Legal Principles: There is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.(in England) The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
Rule of Law proposes that government should have restraints, not possess any arbitrary or discretionary powers, there should be legal controls over the government’s activities/actions and no one including government officials should be above the law. These principles if successfully attained within a society will result in national stability and security of citizens. There is a difference between Rule of Law and the Rule by the Law. Under the rule "by" law, law is an instrument of the government, and the government is above the law, therefore you cannot say law as supreme. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion. As an autonomous legal order, rule of law has at least three meanings imputed by Dicey above.

Defintions of Administrative Law

Administrative law is a branch of public law which is concerned with the composition powers duties rights and liabilities of the various organ of Government which are engaged in public administration.

Davies: Administrative Law is the law concerning the powers and procedure of administrative agencies. (in his Administrative Law 1951)

Austin regarded Administrative Law as determining the ends and modes to and in which the sovereign powers shall be exercised. They shall be exercised:
1) directly by the monarch or sovereign member or
2) directly by the subordinate political superiors to whom portions of those are delegated or committed in trust.

Holland: Administrative Law as one of his six divisions of public law, the first was constitutional law as dealing with structure the second Administrative Law as being concerned with function of Administrative Agencies.

Bernard Schwartz: Administration law as the law applicable to those administrative agencies which posses powers of delegated legislation and or ad judicatory authority.(in his An introduction to American Administrative Law 1985)

Wade and Philips: It is the law relating to the organization and service performed by the various administrative agencies of government. It deals with the powers of all such bodies and determines their rights and duties.

Dicey: It is the law, which determines:

a) the position and liabilities of all State officials
b) the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State and
c) the procedure by which these rights and liabilities are enforced.