DELEGATED LEGISLATION IN THE TIMES OF COVID-19
Baljeet Kaur Sandhu, III year of LL.B. from Amity Law School, Noida
The three pillars of India Democracy which are inter-reliant on each other to ensure the proper and smooth functioning are Legislature, Executive and Judiciary. The legislature consists of Lok Sabha and Rajya Sabha which are responsible for formulating laws in India whereas the executive branch includes the President, Prime Minister and his cabinet ministers which are responsible for executing laws passed by the legislature. Judiciary ensures that the laws made by Parliament are constitutionally valid by interpreting the laws as well as solving disputes related to laws passed by the legislature. Despite formulating laws, the Legislature has various other functions to perform such as control over national finance, control over the executive, control over external relations and many other functions. The Parliament doesn’t have time to debate on every topic because of which the concept of delegated legislation has been introduced.
Delegation can be defined as the act of permitting someone to act as an agent or representative of a person who has given the power to a person to act on his behalf. As the name suggests, Delegated Legislation is a type of legislation in which laws are made by a person or an agency to whom the power of making law has been granted by the Parliament. There can be many reasons for subordinate legislation other than reliving the workload of Parliament such as the requirement of expert legislation, emergencies, the influence of technologies, time barriers and many others. It is pertinent to mention here that only non-essential functions can be delegated by the Parliament as Article 245 and Article 246 of the Indian Constitution says that legislative power shall be discharged by the Parliament and the State Legislatures. The control over delegated legislation is exercised by Parliament and judiciary to ensure that any law passed through delegated legislation doesn’t violate any fundamental rights of a citizen as well as shouldn’t be ultra-vires.
EVOLUTION OF DELEGATED LEGISLATION IN INDIA
The Indian constitution doesn’t provide for delegated legislation but the legislature encourages for delegated legislation in modern times due to many reasons. The origin of Delegated Legislation can be traced back to Charter of 1833 introduced by East India Company in which all administrative powers were conferred to a sole official body, Governor-General-In-Council with an authority to correct, modify or revoke any law or guidelines which all people were bound to follow irrespective of their nationality. When the Government of India Act was introduced in 1935 it contained the serious measures to be followed for delegated legislation. In Queen v Burah, the Privy Council held that the Governor-General in council had innumerable powers and can delegate his authority to executors on a conditional basis and Privy Council had accepted the delegation of authority to formulate laws by the legislature to executors by The Delhi Laws Act 1912.[i]
REASONS FOR DELEGATED LEGISLATION
Following points enlighten the reasons for delegated legislation by the legislature to the executive:
1. With the increase in population and state activities, the work of a Parliament is expanding day by day. Parliament has various functions to perform other than enacting laws. Due to overburden of work, they don’t have much time to discuss the laws in detail which affects the quality of the legislation if they don’t delegate their power to formulate laws. To avoid such troublesomeness, Parliament formulates the outer structure of the legislation and delegate the authority to fill the details to executives or subordinates as per the rules and regulations.
2. All members of the Parliament are not well versed with all the technicalities related to every field and they cannot enact effective law with a discussion which requires expertise. To make quality legislation, after deciding the general objective of the legislation, Parliament delegates the authority to enact a law to government bodies or subordinates who have expertise in the required field.
3. When an emergency arises, the basic requirement is to take immediate action without any delay to control the situation which is impossible for the legislature to meet. To avoid such a delay in an emergency, numerous powers have been given to the executive.
4. Sometimes delegated legislation to subordinates becomes necessary to make changes in laws according to the future unforeseen events as the procedure of a Parliamentary amendment is a long and expensive process. To avoid such inconvenience, a delegation of legislation becomes necessary for the smooth functioning of a system.
5. Delegated legislation becomes necessary to check whether any law is working perfectly or not. As Parliament is already occupied with numerous functions, they don’t have much time to take the opinion of the people affected by that law and make changes as per the requirements. The major advantage of this is obtained by interested people as they can provide their feedback directly to the subordinates and based on opinions of the interested people, they can make changes in the law.
Therefore, we can say that delegated legislation plays a vital role to meet the needs of modern times.
CRITICISMS OF DELEGATED LEGISLATION
Following are the criticisms of delegated legislation:
1. Delegated Legislation has been criticized by many scholars on the ground that it is against the spirit of democracy. Generally, it is preferred that Parliament should make laws but in this type of legislation, the power to make laws have been delegated by the legislature to the subordinate which is not elected by people.
2. The major drawback of delegated legislation is that law is formulated by the people which don’t have parliamentary experience and are likely to abuse delegated legislation.[ii]Delegated legislation violates rule of law as administrative authorities adopt the fastest method to make laws.
3. Due to the lack of proper control over administrative authorities led to arbitrariness.
4. Delegated legislation infringes fundamental rights in emergencies.
5. Laws made through delegated legislation suffer from lack of publicity as people are not informed about them.
CONTROL OF DELEGATED LEGISLATION
There are three types of control over delegated legislation:
· Legislative Control
· Judicial Control
1. LEGISLATIVE CONTROL
· Legislative control is exercised by Parliament as it is the function of the legislature to formulate laws.
· When the legislature delegates its power to formulate a law to subordinates then the legislature has to check how subordinates are performing.
· Parliament exercises direct control on delegated legislation by laying a procedure in which rule should be placed before Parliament for discussion or amendment and then Parliament will decide whether the rule formulated by executives is according to the requirements or not.
· Parliament also exercises indirect control on delegated legislation by its committees which is also known as subordinate legislation.
2. PROCEDURAL CONTROL
· Parliament is overburdened with work which makes the control on delegated legislation impossible due to which procedural control on delegated legislation is exercised.
· In this type of control, prior consultation is done with the people which is likely to be affected with legislation, the mandatory publication of delegated legislation, prior publicity of rules and regulations along with prior consultation with the named body, statutory board, and advisory board.
· This type of control abuses the motive of delegated legislation as this is a very lengthy process.
3. JUDICIAL CONTROL
· In this, control on delegated legislation is exercised by the court by judicial review.
· With the power of judicial review, the court ensures that laws made through delegated legislation are not ultra-vires or unconstitutional.
· If the court believes that laws formulated through delegated legislation are ultra-virus or unconstitutional, then they can declare such laws void.
IMPORTANCE OF DELEGATED LEGISLATION DURING COVID-19
COVID-19 is a contiguous virus which has been acknowledged in the streets of China’s Wuhan in December 2019. To control the outbreak of this contagious virus has become a major challenge for all the nations as it has affected the global economy. There is no vaccine to protect mankind against this contagious virus as this virus is newly discovered. In January 2020, when the first case of COVID-19 had been reported in India, it required the authorities to take fast track measures to control the outbreak of this contagious virus to safeguard the vast population of 1.366 billion. Due to the following reasons, delegated legislation is the best way to enact laws during COVID-19:
1. As COVID-19 is an emergency which requires the immediate action to control its outbreak and there is no proper law in India to control such a situation due to which delegated legislation becomes necessary as the legislature can't enact law within a short period.[iii]
2. As this virus emerged unexpectedly, the legislature is not well versed with all the expertise which is required to control the outbreak of this contagious virus as this situation is very critical due to which delegated legislation to the experts is required to tackle such a situation.
3. Currently, the Government of India is relying on two legislations: Epidemic Disease Act and Disaster Management Act to mitigate the impact of COVID-19 in India. To make amendments in these acts as per the prevailing situation delegated legislation is the best way as the procedure of Parliamentary amendments is a lengthy process.
Delegated legislation is a law-making power which has been delegated by the Parliament to its subordinates or agencies to relieve its workload, enactment of laws in emergencies and where expertise is required to enact effective laws. The concept of delegated legislation has been criticised due to many reasons such as it is against the spirit of democracy, lack of publicity, infringement of human rights during the emergency and many other reasons. To avoid arbitrariness in-laws made through delegated legislation, proper control over them is exercised through legislative, judicial and procedural control. In the times of COVID-19 delegated legislation is the best way to tackle such a situation as it requires the expertise and speedy measures to control its outbreak as no one was prepared for such a situation.