Date: 30/12/2022

Relevance: GS-2: Structure, organization and functioning of the Executive and the Judiciary; separation of powers between various organs dispute redressal mechanisms and institutions.

Key Phrases: Delegated legislation, Kerala Electricity Supply Code, 2014, Article 312, Electricity Act, 2003, Merits of Delegated legislation, D. S. Grewal v. State of Punjab.

Context:

• Recently, the Supreme Court held that delegated legislation, including rules and regulations formed by State and Central authorities, should not supplant but supplement the parliamentary statute from which it draws power.

Background

• The Supreme Court was hearing an appeal filed by the Kerala State Electricity Board against a State High Court decision which upheld Regulation 153(15) of the Kerala Electricity Supply Code, 2014.
• This Regulation provided that ‘unauthorized additional load’ in the same premises and under the same tariff shall not be reckoned as ‘unauthorized use of electricity’ except in cases of consumers billed on the basis of the connected load.

What is the Current Supreme Court Verdict?

• Court observations
  • The SC held that “If a rule goes beyond the rule-making power conferred by the statute, the same has to be declared invalid. If a rule supplants any provision for which power has not been conferred, it becomes invalid”.
  • A delegated power to legislate by making rules or regulations cannot be exercised so as to bring into existence substantive rights, obligations or disabilities not contemplated by the provisions of the parent statute.
  • Since a body making rules or regulations has no inherent power of its own to make rules, but derives such power only from the statute, it has to necessarily function within the purview of the statute.
  • The delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect.
• Court’s verdict
  • The court held that overdrawal of electricity is prejudicial to the public at large, it will impact the entire supply system, undermining its efficiency, efficacy and even-increasing voltage fluctuations.
  • The apex court reversed the High Court decision while holding that the Regulation 153(15) was inconsistent with Section 126(6) of the Electricity Act, 2003.
  • Section 126 of the 2003 Act was enacted with a specific purpose to restrict such unauthorized consumption of electricity.

Constitutional Provisions on Delegated Legislation

• Although the concept of delegated legislation is not explicitly mentioned in the Indian Constitution, it can be understood by interpreting Article 312.
• Article 312 gives the right to the Rajya Sabha to open a new branch of All India Service with a majority of two-thirds majority vote.
• In the D. S. Grewal v. State of Punjab, the Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation.
• The Indian Constitution does not give unlimited or uncontrolled powers for delegated legislation in India.
• The SC has specified the following circumstances where a delegated legislation would be invalid-
  • If the delegated legislation violates any of the fundamental rights or any other provision of the Indian Constitution.
  • The Rules / Regulations are ultra vires the provisions of the parent Act and fail to conform to the substantive provisions of the statute.
  • The Executive did not have the legislative competence to frame the said rule or regulation.
  • The delegated legislation exceeds the limits of the authority conferred by the enabling statute.
  • A delegated legislation can also be struck down on the ground of manifest arbitrariness, and unreasonableness.
  • The SC has held that the Legislature cannot delegate its ‘essential legislative functions’ to the executive branch.

Merits of Delegated legislation

• Reduces the workload of Parliament
  • The Parliament has to pass several legislation within a short span of its life.
  • So there arises the need to overcome the workload constraints and it can be possible through delegating legislative authority to the subsidiary or the executives.
• Brings in Technical Expertise
  • It is difficult for the Members of Parliament to have all the knowledge needed for making laws in various fields like controlling technology, ensuring environmental safety, dealing with various industrial problems which need basic knowledge.
  • Thus, delegates authorities with extra skills, experience, and knowledge are more suitable for making law.
• Decentralized decision making
  • The local bodies can make better laws for their area that a Parliament cannot do so because they know their locals need and what they want.
• Rapid Action during Emergencies
  • Quick action is needed in times of emergencies like war, internal disturbances, floods, epidemics, strikes, lock-outs, bandhs, etc. and lengthy legislation process of Parliament is just not suited for such situations.
  • If the executive is armed with special powers, the situation can be kept under control very quickly.
• Enables flexibility
  • Delegated legislation allows the executive to overcome practical difficulties by exercising the power conferred on it by the parent act.

Challenges associated

• No parliamentary deliberation
  • Parliament does not get a chance to debate rules, regulations, etc. made by the executive.
  • Also, non-elected people cannot make much delegated legislation as it would be against the spirit of democracy.
• No prior publicit
  • Prior publicity is not always possible in case of rules and regulations and the benefits of public discussion and criticism are lost.
• Possibility of overreach and or overlapping
  • Delegated legislation can often be confusing, complex and difficult to understand and thus leading to confusion and lack of uniformity.
• Misuse for political gains
  • The executive makes law according to the political heads of the organizations.
  • Hence, it results in the misuse of the legislation made by the Executive by the ruling party.

Conclusion

• The SC has observed in St Johns Teachers Training Institute v. Regional Director, NCTE, (2003) that delegated legislation can be considered as a “necessary evil”, and an unfortunate but inevitable infringement of the doctrine of separation of powers.
• However, given the complexities and the practical considerations involved, delegated legislation is here to stay.

Source: The Hindu

Mains Question:

Q. “Although Subordinate legislation is an inevitable aspect of administrative law, it is against the spirit of democracy”, elucidate in light of increased instances of misuse of subordinate legislation in India. (250 words).