Delegated Legislation In The Light Of Covid -19

BY:- thelawiq.com

Author:- Aditi Choubey Student of KIIT School of Law, Bhubaneswar

DELEGATED LEGISLATION IN THE LIGHT OF COVID -19

This research paper aims to focus on the functioning of the pillars of the country during the plight of Covid-19. The main aim of this paper is to comprehend the evolution of the concept of delegated legislation in India and to scrutinize its need during the time of emergency.

Through this research paper, we’ll come across various measures taken by the government at a different level to bring control during the pandemic. If we see around we can realize that due to the shift to the welfare state there has been an increase in the administrative functions of the country.

After independence, there was a lot of confusion regarding the delegation of legislative power to the executive. To clarify this: the President under Article 143 of the Indian Constitution referred the matter to the Apex court and it laid down certain guidelines clarifying the position.

This research paper also seeks to bring into light some of the major policies that were implemented through delegated legislation for the management of Covid-19. Some of the policies that were laid down were The Disaster Management Act, The Epidemic Act, etc.

In addition to this, broader steps were also taken to make sure that there is no arbitrary use of these powers by the executive and if so the case punitive measures were also laid down to check and balance the power. It is also essential to note that the policies were laid down keeping in the eye that it deems fit to fulfil the needs of the cosmopolitan in the hour of need.

Keywords: Covid- 19, India, Scrutinize, Pandemic, emergency, Government, Apex court, Independence.

INTRODUCTION

Legislation is regarded as the stepping stone for the progress of a country. Welfare states holding immense powers demand a major distribution of powers to make sure there is an efficient and effective ruling of laws and regulations. The role of  Administrative law in rulemaking confers to the legislation such powers to be delegated or distributed in a manner to make sure there is smooth functioning within the state.

Such an arrangement is termed ” Delegated Legislation”.

The term delegated legislation ensembles its meaning from the word ‘delegate”, meaning thereby assigning or deputing something to get it done. Delegated Legislation refers to the responsibilities that are delegated by the legislation to be performed by the executive.

It is more likely subordinate legislation that extends to orders, bye-laws, rules, regulations, etc. The very essence of delegated legislation is that it makes the system of legislation flexible. As the process of legislation is a lengthy one and takes a lot of time and such situations of urgency the role of delegated legislation comes into play.

In the description of administrative law, the purview of delegated legislation is a much-debated topic and has been laid down with many judicial pronouncements.

The implication of delegated legislation is witnessed in foreign countries like the UK, US, England, etc. In the United Kingdom, The Road Traffic Act 1930,  states that under section 30 the minister has the power to make regulations on the use and construction of motor vehicles.

This legislation would fall under the purview of delegated legislation.  Similarly, in the United States, the administrative legislation is based on the maxim  ” Delegates non-potest delegate” and the principle of the doctrine of separation of power which negates delegated legislation.

In countries like England, the supreme authority is the parliament and has delegated wide legislative powers to the executive.

India has a  democratic government that has overburdened powers to legislation which calls for subordinate legislation for smooth and efficiency in laying out primal decisions.

Delegated legislation plays a vital role as it distributes powers and roles thereby the chances of error are decreased as well as the burden is reduced. Needed thereby, in situations of emergency where it may take a humongous process to be laid down to pass a law, delegated legislation comes into effect to meet the ends of the society.

HISTORICAL BACKGROUND

The term Constitutionality of Delegated legislature talks about the restriction imposed or the limits of the Constitution of any country within which the law-making legislature can solely delegate or administrate to various courts as well as the government to declare any such law which suffices the hour of need and is applicable.

In the current scenario, it is very much evident how the necessity to aid transactions from laissez-faire, which is to a welfare state has become so essential that it has broadened the government authority.

It is the utmost power conferred upon the government that can fulfil the new changing dynamic towards a progressive country.

Delegated legislation has played a crucial role to enhance the power of the government which in return has become a boon to developing the socio-economic condition of the country.

The question of permissible limits of the constitution which restrains the arbitrary power of the delegated legislation can be described in two eras mainly, the post-independence era and the one after the adoption of the Indian Republic Constitution.

The privy council  is recognized as the epitome of justice during the era of  1949

. R. vs Burah, is a famous case in which the question of constitutionality came before the Privy Council. In the year 1869, an Act that removed the Garo Hills from civil and criminal matters was passed in the year 1869, which vested powers on the Lt. Governor of Bengal. He was further authorized to extend the provision under section 9 which brings changes to the Khasi and the Jaintia Hills.

One Burah was accused of murder by the Commissioner of Khasi and Jaintia Hills and was sentenced to death. The Calcutta High Court declared Section 9 as unconstitutional on the ground that the Indian legislature was established by the British Parliament, therefore a delegate cannot further delegate.

The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the constitutionality of Sec. 9 on the ground that it is merely conditional legislation.

This historic decision of the Privy Council was interpreted in two different ways. One interpretation was that since the Indian legislature is not a delegate of the British Parliament, there is no limit on the delegation of legislative functions.

According to the other interpretation, it was argued that since Privy Council has validated only conditional legislation, therefore, a delegation of legislative power is not permissible. This doctrine of conditional legislation was again observed by the Privy Council in Emperor vs Benoari Lal.

[ AIR 1945 PC 48]  in this case it was decided that the constitutionality of an ordinance passed by the Governor-General for the establishment of special courts and delegated the powers to the provincial governments to declare this law applicable in their provinces at any time they deem fit.

With time, the Federal court was witnessed to be the highest court of appeal during the era of 1949. The federal court questioned the validity of the delegated legislation.

The validity of the Bihar Maintenance of Public Order Act was questioned in the case of Jatindra Nath Gupta vs. Province of Bihar,  where the Federal Court opined that the power to extend with modification cannot be considered constitutional as such a legislative act is essential and doing so may bring a lot of changes in the Act. This was witnessed remarkable in the history of the Indian constitution as for the first time legislative powers were not permitted to be  delegated

P0ST INDEPENDENCE SCENARIO

Post-independence, when the Indian constitution came into existence, the Supreme Court became the highest court of appeal. Under the Constitution of India, Articles 245 and 246 provide that the legislative function shall be vested in Parliament and State legislatures, and they shall exercise their legislative power concerning Entries mentioned in Union and State lists.

There is no mention anywhere in any clause whereby it can be concluded that the legislative cannot delegate the power of legislation to anyone.

But it does not mean that the power of legislation includes the power to delegate.

In the Constitution itself, we find several provisions where the Executive heads i.e.

the President and the Governors of the different states have been empowered to make laws under certain conditions when the Parliament or State legislatures are not in sessions.

Moreover, the President’s rule in any state has also authorized the executive to make laws.

Therefore it can be concluded that although the constitution-makers intended that the function of legislation must be carried out by legislatures, in Centre and States as the case may be yet the delegation of legislative power was taken to be inevitable and accordingly accepted and therefore it was the reason behind why the delegation of legislative power was not prohibited by the  Indian Constitution.

In the case of Jitendra Nath, the tint of ambiguity came into the picture regarding arbitrary delegated powers. To make sure that the position of law is nowhere compromised in the matters of delegation of legislative Function, the President of India sought a detailed opinion of the court,  regarding the three different periods-  1) Section 7 of the Delhi Laws Act, 1912 (ii) section 2 of Ajmer Marwar (Extension of Laws) Act, 1947, (ii) Sec. 2 of the Part C States (Laws) Act, 1950, which came under Article 143  of the Indian Constitution.

Re Delhi Laws Act this case is said to be the Bible of delegated legislation. Seven Judges’ bench heard the case and came up with seven different opinions.

The case was argued from two extremely different positions. Mr M. C. Setalvad made his point by stating that the power of the legislature is carried with the power of delegation and unless the legislature has completely abdicated or effaced itself, there is no restriction on delegation of legislative powers.

Mr N. C. Chatterjee based his arguments on the theory “separation of powers” and “delegates non-potest delegate” and tried to prove before the Court that there is implied bondage on delegation of legislative powers.

The Supreme Court upheld that the Doctrine of separation of powers is not a part of the Indian Constitution and was never considered as an agent of anybody, and therefore the doctrine of “delegates non-potest delegate” has no application here.

The Parliament cannot abdicate or bring into effacing itself by creating a parallel legislative body, and the power to delegate is ancillary to the power of legislation.

The limitation upon delegation of power where the legislative cannot part with the essential legislative powers that have been expressly vested upon it by the Constitution. Essential legislative power means laying down the policy of the law and enacting that policy into a binding rule of conduct.

Based on this reasoning, the Supreme Court concluded that:

(1) Section 7 of the Delhi Laws Act, 1912 is valid.

(2) Section 2 of Ajmer, Marwar (Extension of Laws) Act, 1947 is valid.

(3) Section 2 of Part ‘C’ States (Laws) Act, 1950 is valid except that part of the section which delegated power to repeal and amendment as it amounted to excessive delegation of legislative powers.

Yet, there is no formula concerning which one can decide the permissible limits of delegation. The opinion of the Supreme Court in individual cases is to be analyzed to determine the extent of delegation permissible.

In the case of  Raj Narain Singh vs Chairman, Patna Administration Committee,[3]  the Patna Local administration decided to select any provision of the Bengal Municipality Act, 1884 and applied it within its discretion as by the wish of the Government. This endless power to legislate was stated to be an arbitrary use of power and was considered Ultra Vires by the Supreme Court of India.  The court thought that such changes in the policy cannot be done as it would completely change it and such power is arbitrary.

 IMPACT ON DELEGATED LEGISLATION DURING COVID -19

In the past year and a half, the whole definition of living has turned upside down. Millions of lives are lost, livelihood is affected. The country has suffered from major financial economic as well as social losses. Migrants have turned homeless, there was inadequate food supply, the medical facility was improper. In a country of a Hundred billion population it became crucial to respond effectively to such a huge crisis as the economy was in a complete shutdown, people were stuck in places with no supply of food and water due to the initial lockdown during the first wave.

Such a critical situation demands an efficient and quick step to be taken by the government to bring control to such a situation.

The three pillars of our country namely legislature, executive, and judiciary entwined to delegate powers to authorize necessary actions. Delegated legislation played a crucial role in such an emergent situation. During the pandemic tons of necessary steps were required to be taken to make sure adequate rules and guidelines are passed as quickly as possible to bring control to the situation.

The pandemic is one such scenario where the Disaster Management Act 2005 and the Epidemic Diseases Act 1897 were used by the government to control the situation.

According to Disaster Management Act, the parliament scrutinizes its power to lay down policies on the management of disasters. Section 6(2) (a) of the act states that the power to make policies on disaster management is conferred upon the national authority. This rule was applied by the central and the state government to ensure social distancing during COVID-19. The Central government also laid down guidelines to give directions to the ministries and departments to respond to such threatening situations and initiate the period of early lockdown for 21 days.

This overlapping of delegation of powers of the legislature to the members of the executive was essential for bringing control to such a life-threatening situation.

The main requirement of this policy was because there was no precedent legislation to control the situation and this law aimed to conduct operations and measure for punitive results for violations of rules and regulations by the public. This rule was a major help towards controlling the quarantine measures.

Section 3 of the Epidemic Disease Act, 1897 provides penalties for breaking regulations made by the government. Many states like Delhi, Odisha, Maharashtra, etc used this law to make sure people adhered to the regulations.

To make sure that there is no arbitrary use for the powers delegated some control is exercised three controls are imposed on the powers i.e the judicial review, legislative oversight, and in-built procedural control.

Delegated legislation is an effective remedy only during the case of an emergency and only when there is a need to take quick steps. This was led down in the case of Sukhdev Singh v Bhagat Ram.[4]

The limitation on the executive action can be traced to the fundamental rights under articles 14, 19, and 21 by various judicial precedents.

National lockdown, effective and compulsory quarantine are the primal steps to overcome and control the pandemic and in this case, delegated legislation has turned out to be very crucial.

While central and state governments have access to powers, at the local level magistrates and commissioners are also conferred this power under section 144 of the CrPC. This section empowers to issue an order within the jurisdiction to abstain from a certain act or to take certain orders concerning the certain property in possession where there is anticipation to human, life, health, or safety. This rule comes shandy in challenging on the grounds of arbitrary warehouses, ban on individual movement on the public road being disproportionate and arbitrary.

CONCLUSION

Post-independence, our constitution was framed which was broadly based on the principle of separation of power. Although the complete separation was an impossible task to do, it maintained the sanctity of the doctrine in the modern sense.

Our constitution does not prohibit the theory of delegation of legislative power. Under it, the legislative powers of the President are conspicuous, which includes the power to make and promulgate ordinances and his unrestricted authority to frame rules and regulations for the peace, progress, and great governance of the Union territories of India under mentioned under Article 250 of the Indian Constitution.

Again an instance of delegation of full legislative powers from Parliament to the President is found in the provisions of Article 357.

In re Delhi Case, the Supreme Court held that the central legislature is empowered with the power to delegate the executive authority to and confer them with powers within its discretion.

The variation is concerned with the types of laws that are conferred to the executive authority to select and make modifications as necessary for the time.

The sole purpose of delegated legislation is thus to bring into effect immediate and effective rules and regulations are required without any undue use of the powers thus conferred upon the executive.

[1]  ILR 4 Cal. 172 (1879)

[2] AIR 1951 SC 332

[3] AIR 1954 SC 569

[4] 1975 AIR SC 1331

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