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narendra.s.p (Chief Manager(Law))     27 September 2011

Delegated legislation

Is it mandatory that a delegated legislation should be published in the Official Gazatte? Is any other mode of publication permissible?



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 2 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     27 September 2011

Dear Narendra

it is mandatory to published the delegated Legislation in the official Gazatte/notification.

through Internet is also permissable.

 

The legislative authority can so delegate its function if the delegation can stand three tests,
(1) it must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation,
(2) such power of delegation is not negatived by the instrument by which the legislative body is created or established, and
(3) ) it does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

The power of delegation is implicit and included in the power of legislation. This being the touch-stone for not rendering the respective Acts ultra-vires. The same authority to which the powers are delegated are also subjected to the above-stated tests.

The current global trend is fast changing and responding to the need of powers which have to be delegated and further sub-delegated. It for this reason the Latin principle ‘delegata potestas non potest delegari’ which n simple terms means that a delegated function or power cannot be further delegated, is undergoing cynicism and was also disparaged as early as 1825 . It is virtually rendered as just a principle which no one follows. However, subject to the three tests, this principle may be used when prima facie the function under question should have been carried out by that particular authority itself and should have not been delegated due to its urgency and importance, this being my own submission. Yet one must remain vigilant that the principle is not absolutely refuted so that it looses its essence.

As observed by Justice Fazl Ali, The true distinction. . . . . . is this : The Legislature cannot delegare its power to make a law ; but it can make a law to delegare a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. Another limitation is that a delegated legislation should not attempt to make another parallel legislation through that delegated authority. Justice Ali too observes certain restrictions on delegated legislations, although agreeing with the necessity for such kind of delegation. However, it may be noted that absolute power, as told to me once by my teacher, is the greatest rush of fluid a person can incur. Thus to prevent this these restrictions are enumerated hereunder, which are stated in His Lordships own words, and tampering them would take away the essence of the same :-

(1) The legislature must normally discharge its primary legislative function itself and not through others.

(2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.

(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.

(4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this country are not, committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegare these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self-effacement.

Justice Bose at the same time suggests another test which requires that the nature of the powers conferred by the superior legislature upon other legislatures, be scrutinized and examined. However, ultimately it is agreed upon the fact that today delegation of legislative function and other functions is a current necessity and cannot be done away with. The Parliament does not have enough time to monitor the needs of the entire country. Therefore, it must delegate its functions to other legislatures, although keeping a regulatory control over them. Justice Bose may term it as ‘shirking of responsibility’, however, the law must respond to the present day needs rather than relying upon archaic principles of laws and pre-set notions.

To my mind, and my personal views, delegation of powers is a must with only one reasonable restriction. The delegation must not be such that it takes away the very title of a subordinate authority i.e. the subordinate authority should not do a particular act which the superior authority itself cannot do. This in deeper meaning would support the restriction placed upon creation of a parallel legislature. No problem therefore arises if delegated acts are done within the scope and ambit of the authority the superior authority defines.

Opening lines are paid heed to, yet greater attention is paid to closing sentences. Food for thought being that delegation must only be possible of what the legislature or for that matter any superior authority cannot do, rather than what they can do and delegated to those who are aware of what they may do and also what they may not do. Think about it!!"

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narendra.s.p (Chief Manager(Law))     29 September 2011

Thanks Nadeem for elobrating on the question. I am now interested In this specific instance:

Section 2(p) of SARFAESI Act prescribes publication in Official Gazatte. Guidelines for Banks to Classify a Loan account as NPA is delegated to RBI under section 2(o)(b). RBI has issued Master circular defining NPA. This circular is not published in Official gazatte. Insuch a situation: Whether the ratio laid down by the Honourable Supreme Court in Harala Vs. State of Rajasthan reported in AIR 1951 SC 467 is applicable in respect of the RBI Masater circular. 


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