IMPORTANCE OF DELEGATED LEGISLATION IN THE LIGHT OF COVID-19 by Arshiya Firdous & Sonali Supriya

Posted on: January 9, 2021 Posted by: admin Comments: 0

Author: Arshiya Firdous, Student at KIIT School of Law, Kalinga Institute of Industrial Technology, Bhubaneswar, Odisha.

Co-Author: Sonali Supriya, Student at KIIT School of Law, Kalinga Institute of Industrial Technology, Bhubaneswar, Odisha.

ABSTRACT

The term delegated legislation is an ongoing topic in today’s time and it holds importance in the Indian Constitution. This issue has been the most debated issue all over the world. The legislature have limited time with them because it’s a time consuming process where a lot of time is invested in discussing any issue in details and after that approving the same enacted law takes time because it has to pass different stages of authority for its final approval. Moreover, this process involve many hurdles and becomes complicated. So, the law has to be accurate while competing with the technical issues. There is no exact definition for delegated legislation given anywhere rather it can be acknowledged by interpreting Article 312 of the Constitution of India, 1950. And also because of the contrary views among the scholars who have different views and interpreted the issue differently.

So in this research paper the author desire to highlight the importance of delegated legislation in the light of COVID-19 and where delegated legislation is linked with COVID-19.

Keywords : Delegated legislation, Indian Constitution, Enacted laws, COVID-19, Constitution of India 1950, Disaster Management Act 2005, Epidemic Diseases Act 1897.

INTRODUCTION

The power to form laws for our Country India lies with the hand of the Legislature and its purpose is to control in putting together the rules, regulation,s and imposing the same as rule of conduct in Indian Constitution. Such powers cannot be interchange with other powers. So the legislature without wasting its time entrust its power to executive to perform its part by amending laws. As the process involves quick action but legislature doesn’t have enough time to discuss the matter in details or to perform the purpose. In such type of situation, the necessity of delegated legislation arises. Delegated legislation is an key element of administrative law where the control rest with executive to carry out legislative purpose.

So, it can be said that delegated legislation is a process by which the legislature entrust its power to the executive authority in order to frame laws, implement and operate the same.

The great legal Scholar Salmond defined, “delegated legislation is the legislation that comes from any form of authority apart from the sovereign power and depends on a supreme authority for the continuance of its existence”. But in simple layman’s language it means giving power or the authority to the person who holds lower position to formulate laws.

The topics of delegated legislation has become very meaningful and inescapable. Delegated legislation is a broader concept which covers a vast piece of legislation that is made by the Government agencies and authorities for their delegation of authority. The delegated legislation does not only adopt several ways but also categorized based on different regulations. There are no specific types of delegated legislation mentioned in the Indian Constitution instead, they are categorized based on some different principles.

This term ‘delegated legislation’ came into the picture from the Charter Act of 1833 when the East India Company was capturing India. The Charter Act of 1833 empowered the executive power in the hands of the Governor-General in Council, which was an official body. The Governor-General formulate laws, order, and guidelines that were to be followed by all regardless of their nationality. In 1935 the Government of India passed an Act where accordingly certain changes were made.

IMPORTANCE OF DELEGATED LEGISLATION

The importance of delegated legislation plays an important role in the Indian Constitution. And they are listed below-

Delegated legislation is beneficial for decision making for Parliament as its not time consuming process and also reduces burden of the Parliament. And the most important thing is that there is no such restrictions imposed in passing any law.
Delegated legislation gives power of authority to the assigned person who has knowledge, familiar with individuals problems and responsible for the society to formulate law rather depending upon the Parliament.
As Parliament process of decision making is time consuming so it give power to individual who’s best suited for it to solve any emergency situation if arises without its dependence or interference. This process is called delegated legislation.
Delegated legislation can substitute any crisis that makes it flexible and useful to make a law that the Parliament never foresee at the time of passing any new legislation.

Therefore we can say that delegated legislation is the best process for the Parliament to enact a law as it gets a positive result by trusting this method i.e., delegated legislation where the power of decision making in any emergency situation is given in hands of the individual who’s responsible for it. So as to save the time of Parliament. And so far this process has been the best process to enact a law. And also this process can recognize and meet the changing needs of the society.

GOAL AND DEVELOPMENT OF DELEGATED LEGISLATION

In today’s time delegated legislation has taken a new shape and dimension. The growth and need for delegated legislation in India is unstoppable because it can cover any emergency situation within a limited span of time by giving positive result. There’s a rapid growth and increase of delegated legislation because the process involve various factors which gives positive result within short period of time.

Some of the key factors that helps in growth of delegated legislation are listed below-

Time is changing and everything is developing and expanding so are the activities of the State keeps on increasing and the ultimate pressure lies on the legislature to formulate new laws and there’s a lot of burden on them so its difficult for them to invest time on discussing every single matters in details and the process involved is time consuming because in accepting it has to look from all point of views and also has to pass through various stages. And the ultimate pressure lies on the legislature. So it entrust its power to person who holds the position lower in rank to the legislature.
There’s a lot of complexity faced by the legislature in this modern era so to compete with this complexity the legislature distributes its power on basis of the issue or problem to various other authorities who are into that position or who have the knowledge and awareness regarding the condition of the matter.
Delegated legislation is only possible remedy to those emergency situations which requires a quick recovery or action and as the legislature process is time consuming because the actions approval has to grant permission so it has to pass through every stages which will consume more amount of time. So there’s only one remedy to the problem i.e., delegated legislation which will solve the problem and action is taken within limited period of time.
The practice of the method i.e., delegated legislation is granted by the legislature who gives the authorization to the executive to experiment this method to get a speedy result and leave a positive impact.

CRITICISM ON DELEGATED LEGISLATION

Everything has its own pros as well as cons and we cannot avoid this. So here are some cons mentioned below which criticizes the usages of delegated legislation-

Using or making or amending laws, the power of delegated legislation in any form lacks democracy because of the maximum usage of the power is made by unelected people. The unelected people misuse the power in that situation.
There is less chance of interference of the Parliament in case of delegated legislation as compared to primary legislation. Which means there is less chance of inspection of the Parliament in case of delegated legislation due to which the chances of contrary in between the laws can be more.
When any law are formulated or any changes made in laws through the method of delegated legislation its not notified to the public. So this creates a problem because of no publicity of the newly laws enacted or the changes made.
It has been observed and surveyed that all most maximum law is amended through the process of delegated legislation.

SIGNIFICANCE OF PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION

As in our parliament to commit the power of every legislation to any person it feel like but the similar time it had to commit that the power is not being misused rather it’s being use for the public benefit. If not then the parliament has the right to take back that power. As In India the system of parliamentary from the government and from the respected prime minister is always answerable to legislature. That is the reason Indian parliament can exercise quickest control over our government. In India committees regarding authority of delegated rules are put together by parliament for each House all the years. The principal feature of every committee is for look over all the regulations, to create the legal guidelines for the public. made with all the aid of any administrative support and every reports to the address whether or not the delegated rules had been exercised nicely within the insufficient provided covered the Parent Act or on the Constitution. So it is indispensable to look upon the harmony linking Legislature and Executive in the democratic society and to find that there should be a powerful system of management of the Legislature on the Executive so that the government cannot misapply their powers while making delegated rules.

JUDICIAL AUTHORITY OVER DELEGATED LEGISLATION

The law courts can only challenge Delegated Legislation on being unconstitutional, excessive and arbitrary. The Judiciary can take control over it on two situations and those are mentioned below-

On the substantial ultra vires basis and
On the procedural ultra vires.

When law made by the executive is contradicting by the constitution or ultra vires the present act from which it has got the authority of making law then it could be considered that the law is invalid and nullified by the court. Judicial Control over delegated legislative works at two levels. The first one being Challenging the delegation as unconstitutional and the second one being the improper utilization of judicial power. Delegated Legislation can not outlive disputing with the provisions endowing Fundamental Rights. Judicial control is based on the doctrine of ultra vires.

In the case Hemdard Dawakhana v Union of India, AIR 1960 SC 554, the Supreme Court in this case held that the Constitution has not barred the delegation of legislative power by the legislature to the executive in particular. It is however a null matter that the executive cannot be granted important legislative functions by the legislature. The legislature itself has the power to lay down legislative policy.

DELEGATED LEGISLATION UNDER CONSTITUTION OF INDIA

The Constitution of India authorize power to legislature to entrust it’s purpose to other jurisdiction. Since India is a welfare state with multiple functions to perform, it is hectic for the Legislature to handle all of these at the same time on its own. So, the Legislature is further empowered by the Constitution of India to delegate its purpose to other jurisdictions. In delegated legislation, the executive has to perform certain legislative purpose. Article 312 of the Constitution of India puts an emphasis on it.

In the case D. S. Gerewal v State of Punjab, 1959 AIR SC 512, the Supreme Court held that Article 312 of the Indian Constitution deals with the powers of delegated legislation. Justice K. N. Wanchoo observed that “there is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the jurisdiction.”

IMPACT OF COVID-19 ON DELEGATED LEGISLATION

COVID-19 pandemic has caused global health crisis of our time and the greatest challenge we have faced globally since World War II. Since its emergence in China in December 2019 last year, the virus has spread to almost every continent.

India being a country that is well known for its rich historic culture and traditional values catered a major chunk of the population of our country through tourism, are left unemployed. People all over the globe are either unemployed or have been majorly affected due to the sudden outbreak of the pandemic. Unemployment rose from 6.7% on 15 March to as high as 26% on 19 April in India post lockdown.

The pandemic really has put forward a great challenge in front of the government that none of us had ever expected of. As the virus had been newly discovered, it has no cure or vaccine ready yet. The Indian government had to react quickly as India being a densely populated country would cause this virus to spread like a wildfire.

As mentioned earlier, this does not have any cure or vaccine as of now and is a newly discovered virus, the Indian law was compelled to delegate powers in the hands of experts due to a few reasons as listed below:

Emergency Situation- Quick action was needed as this virus has now caused a global pandemic which was the major concern for every authority around the globe when the virus was first reported.
Pressure on Parliamentary time- This virus has now affected every country and only a few have been able to handle the situation very well. To tackle such situations, there was not enough time for the government to think upon and act accordingly. The decisions were taken in a haste in order to contain and avoid the spread of the virus.
Lack of expertise- It can not be expected by the Parliament’s members to tackle such situations as these situations are very critical in nature so the people who are expert in handling these situations should probably look after it. Therefore, experts should be hired.

Coming to the conclusion, the situation of COVID-19 is an emergency situation which no one was prepared for and India had no laws made for a such a condition so it was required to take quick decisions for which delegated legislation is the best way to deal with it.

Mainly two laws, i.e. Disaster Management Act, 2005 and Epidemic Diseases Act, 1897, were followed by the government to handle the spread of corona virus in India.

Disaster Management Act, 2005 (DMA)

The main motive behind the formation of the Disaster Management Act was to deal with disasters at both the levels of government, i.e. Central and State.

Under Section 6(2)(a) of the Disaster Management Act, the national authority has the power to lay down or make policies on disaster management and exercising this power the Central and the State government took measures in order to ensure social distancing so as to prevent the spread of COVID-19.

Section 10(2)(l) of the Disaster Management Act empowers the Central government to “lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.” Referring to this, the lockdown was initiated for the time period of 21 days first and was then so on planned and carried out.

The Union Home Secretary also delegated power to the Union Health Secretary so as to have a better look and be ready to deal with the pandemic, COVID-19.

Therefore, this law has helped the administrative authorities a lot to take decisions regarding COVID-19.

Epidemic Diseases Act, 1897

Due to the absence of any recent legislation, India had to refer to this British colonial era legislation which is 123 years old, i.e. the Epidemic Diseases Act to take into control the outbreak. This Act, although too small, is more oriented towards the current crisis of COVID-19. This law empowers the State to conduct search operations and also to punish the people who are violating the provisions of the law.

This Act contains only four sections.

Section 1 states about the title and to what extent this act could be applied to.

Under Section 2A of the Act, the Central government is empowered to inspect ships and vessels leaving or arriving in the territories of India and also empowers the government to detain such vessels if required. The travel ban exercised by the government belongs to this section. Whenever any state government is satisfied that any part of his territory is going to get attacked by any dangerous disease, then he many do any such thing as prescribed in this law to control the outbreak of the disease.

Referring to this section, many states, like Delhi, Odisha, Maharastra, Karnataka have made their own rules and regulations for coping up with quarantine measures.

Section 3 provides with the penalties for disobeying the regulations made by the government under section 2 and 2A. The punishment for such disobedience shall be the same as Section 188 of Indian Penal Code (IPC), that is, a sentence of simple imprisonment for one month, a fine, or both.

Section 4 protects the government and its employees and officers from any prosecution, civil or criminal, for doing anything in good faith.

When this act was enacted at that time United Nations and World Health Organization did not have any sort of existence. Therefore, this Act lags behind in implementing the guidelines issued by these organizations time and again.

Both the Diseases Management Act and Epidemic Diseases Act delegates substantial discretionary power to the government.

TESTING THE ADMINISTRATIVE RESPONSE

Three types of control can mainly be exercised on delegated legislation, i.e., judicial review, legislative oversight, and in-built procedural controls but as per the current situation which is going on in India all of them are restricted.

Courts are functioning with a limited and restricted number of people and are only hearing matters that are urgent in nature.

In the case Sukhdev Singh v Bhagat Ram, 1975 AIR SC 1331, the Supreme Court empathized the importance of delegated legislation in the Constitution of India. The Court held that delegated legislation is only an effective remedy during emergencies situation and it can only be applied in those situation where a quick action is needed and expected from the Government side. Only on those emergency situation delegated legislation comes into the picture because a second delay in the decision making can cost a huge loss to the Country.

Parliament has been broken off without assigning a day for a further meeting or hearing in mid-session and neither the Lok Sabha nor Rajya Sabha or its committees can be back together to exercise oversight. The questionable laws are also not designed to deal with the scale of the present crisis and lack procedural controls.

The higher judiciary is slowly transitioning towards filing of cases digitally and virtual hearings, therefore, it becomes its right to throw a light and draw upon the various administrative doctrines from the past in order to keep or maintain a balance between civil liberties and public welfare.

The doctrine of proportionality still remains applicable. The Doctrine of Proportionality is used when any action taken by an administrative body is such that no reasonable authority would have taken such measures to fulfil the objective or the punishment is so disproportionate that it shocks the conscience of the court, in these kind of cases, the court is empowered to review the quantum of punishment by itself or remit it to tribunals for reconsideration. Different actions or measures taken by the government can be challenged on these grounds. These limitations on executive action can be traced to fundamental rights under article 14 ,19 and 21, as affirmed by various judicial precedents. The writ jurisdiction of the High Courts and Supreme Court is thus attracted.

THE NATIONAL LOCKDOWN

The national lockdown imposes restriction on conducting huge gatherings and movement, having the motive behind it to exercise social distancing. Scientific evidences have said that such a measure, if taken, would lower the number of cases as it has been growing rapidly. Keeping an eye on all the necessities and requirements of the public, a curfew or total ban or prohibition on individual movement has not been yet imposed as per the imposed guidelines.

However, implementation on the ground level has tended to be unsatisfactory with police enforcing a de-facto curfew by indiscriminately attacking violators, including those with considerable reasons for stepping out.

COMPULSORY QUARANTINE

As per the provision of Epidemic Diseases Act, detention of people who are suspected of being infected does have a degree of legislative backing. Authorities have largely also adhered to boundaries of proportionality, imposing home quarantines on low-risk patients and limiting quarantine to the incubation period of the virus.

Local administrations in some part of the country are trying to follow suit. This affects the right to privacy of the affected individuals. It renders them vulnerable to public stigma, discrimination and even compromises their safety.

ENFORCEMENT OF SECTION 144

The executive rule-making at the local level has been made by magistrates and commissioners acting under the powers conferred on them under S.144 of CrPC. It empowers them to issue orders within their jurisdictions to “direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession” where there is an anticipated risk to human “life, health, or safety”.

Several problematic orders issued under s.144 can thus be potentially challenged on these grounds such as arbitrary closure of warehouses, ban on individual movement on public roads as being disproportionate and arbitrary.

CONCLUSION

In brief delegated legislation simply means giving power or the authority to the person who holds lower rank to legislature who has knowledge and awareness regarding the current scenario. It is the best process for the Parliament to enact a law as it gets a positive result by trusting this method i.e., delegated legislation where the power of decision making in any emergency situation is given in hands of the individual who’s responsible for it. So as to save the time of Parliament. And so far this process has been the best process to enact a law. And also this process can recognize and meet the changing needs of the society.

The Constitution of India authorize power to legislature to entrust it’s purpose to other jurisdiction Since India is a welfare state with multiple functions to perform, it is hectic for the Legislature to handle all of these at the same time on its own. So, the Legislature is further empowered by the Constitution of India to delegate its purpose to other jurisdictions. In delegated legislation, the executive has to perform certain legislative purpose. Article 312 of the Constitution of India puts an emphasis on it.

There are several reasons specified in this article that why delegated legislation is important in our country as well as in the whole world. And it has also become very important and unavoidable topic of today’s time and it has also become a sensible topic now days. The role of Delegated legislation in the Government is much required because sometimes there comes a emergency situation and a single second delay can cause a huge loss to the country. Like that of COVID-19 pandemic which has caused global health crisis of our time and the greater challenge we have faced globally since World War II. This has given an highlighted example of having delegated legislation in the Constitution of India.

REFERENCES

Internet Websites

Amit Kumar, Delegated legislation in India development and control by judiciaryand Parliament, http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html
Harsha Jesawani, Analysis of the concept of delegated legislation, February 8, 2016, https://blog.ipleaders.in/analysis-concept-delegated-legislation/
Hemant More, Growth of delegated legislation, October 24, 2019, https://thefactfactor.com/facts/law/civil_law/administrative-law/growth-of-delegated-legislation/4262/
Devansh Kaushik, the Indian administrative response to COVID-19, May 5 2020, https://adminlawblog.org/2020/05/05/devansh-kaushik-the-indian-administrative-response-to-covid-19/
Arvind Kurian Abraham, Delegated legislation: the blindspot of the parliament, May 16, 2019, https://thewire.in/government/delegated-legislation-parliament-executive
Natasha Agarwal, Harleen Kaur, Information about COVID-19 in India, June 13, 2020, https://blog.theleapjournal.org/2020/06/information-about-covid-19-in-india_13.html

Indian Case

Hemdard Dawakhana v Union of India, AIR 1960 SC 554
S. Gerewal v State of Punjab, 1959 AIR SC 512
Sukhdev Singh v Bhagat Ram, 1975 AIR SC 1331

Statutes

Disaster Management Act, 2005, S. 6(2)(a), S. 10(2)(1)
Epidemic Diseases Act, 1897, S. 2(a), S. 3, S. 4
Constitution of India, 1949, Art. 312

VOLUME 2, ISSUE 2