Imp. Rulings; Delegated or Subordinate Legislation
Index;
SCI (2024.07.30) in Gaurav Kumar Vs Union of India and Ors. [2024 INSC 558, Writ Petition (C) No. 352 of 2023]
SCI (2006.03.24) in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327]
SCI (2006.03.24) in State of Tamil Nadu & Anr vs P. Krishnamurthy & Ors. [(2006) SCC 517],
-------------------------------------------------------
1). SCI (2024.07.30) in Gaurav Kumar Vs Union of India and Ors. [2024 INSC 558, Writ Petition (C) No. 352 of 2023] held that;
# 27. The basic principle underlying the concept of delegated legislation is that the legislature cannot directly exert its will in every detail.34 It lays down the legislative policy and delegates the subsidiary or ancillary powers to the delegated or subordinate authorities to carry out the legislative policy.35 It is now a settled legal principle that the legislature cannot abdicate essential legislative functions to the delegated authority.36 The legislature can entrust subsidiary or ancillary legislation to the delegate. Before such delegation, the legislature should enunciate the policy and the principles for the guidance of the delegated authority.37 As a corollary, the delegated authority must carry out its rule-making functions within the framework of the law. The delegated legislation must be consistent with the law under which it is made and cannot go beyond the limits of policy and standards laid down in the law.38
# 28. Although delegated legislation enjoys the presumption of constitutionality, it does not enjoy the same immunity as the parent legislation. It is now well established39 that delegated legislation can be challenged on the following grounds:
(i) lack of legislative competence to make delegated legislation;
(ii) violation of fundamental rights guaranteed under the Constitution;
(iii) violation of any provision of the Constitution;
(iv) failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act;
(v) repugnance to any other enactment; and
(vi) manifest arbitrariness.
# 29. Modern legislation often contains provisions enabling the delegate of the legislature to frame subordinate legislation. The statutory provision for delegation is often couched in general terms empowering the delegate the power to frame rules “to carry out the purposes of this Act” or a particular segment of the statute contained in a Chapter. The general provision is then followed by a provision enumerating specific matters on which the delegate may frame rules.
A similar legislative scheme is reflected in Sections 15 and 28 of the Advocates Act. Where a rule-making power is conferred upon the delegate in general terms, a subsequent enumeration of matters on which the delegate may frame rules is illustrative and does not limit the scope of the general power. The enumerated matters in such a situation provide guidelines for the delegated authority while framing rules in exercise of the general power.
[ Link Synopsis ]
--------------------------------
2). SCI (2006.03.24) in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327] held that:
"# 17. A rule is not only required to be made in conformity with the provisions of the Act where under it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by the Parliament or the State Legislature.
# 37. Furthermore, the terms and conditions which can be imposed by the State for the purpose of parting with its right of exclusive privilege more or less has been exhaustively dealt with in the illustrations in sub-section (2) of Section 29 of the Act. There cannot be any doubt whatsoever that the general power to make rules is contained in sub-section (1) of Section 29. The provisions contained in sub-section (2) are illustrative in nature. But, the factors enumerated in sub-section (2) of Section 29 are indicative of the heads under which the statutory framework should ordinarily be worked out.
# 43. The submission of Mr. Iyer that there exists a distinction between carrying out the provisions of the Act and the purpose of the Act, is not relevant for our purpose. The power of delegated legislation cannot be exercised for the purpose of framing a new policy. The power can be exercised only to give effect to the provisions of the Act and not dehors the same. While considering the carrying out of the provisions of the Act, the court must see to it that the rule framed therefore is in conformity with the provisions thereof.
# 46. In Hotel Balaji and Others v. State of A.P. and Others (1993 Supp (4) SCC 536), whereupon Mr. Iyer placed reliance, it is stated: "The necessity and significance of the delegated legislation is well accepted and needs no elaboration at our hands. Even so, it is well to remind ourselves that rules represent subordinate legislation. They cannot travel beyond the purview of the Act. Where the Act says that rules on being made shall be deemed "as if enacted in this Act", the position may be different. (It is not necessary to express any definite opinion on this aspect for the purpose of this case.) But where the Act does not say so, the rules do not become part of the Act."
———--------------------------------
3). SCI (2006.03.24) in State of Tamil Nadu & Anr vs P. Krishnamurthy & Ors. [(2006) SCC 517], ruled that any subordinate legislation or part thereof, which does not conform to the object, scheme and provisions of the parent Act under which it is made, is invalid.
# 12. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-
a) Lack of legislative competence to make the sub-ordinate legislation.
b) Violation of Fundamental Rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment .
f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).
The same ratio is held in;
I.T.C Bhadrachalam Paper Boards and another vs Mandal Revenue Officer, AP and others (1996) 6 SCC 634,
Gupta Modern Breweries vs State of J&K and Others (2007) 6 SCC 317, and
Cellular Operators Association of India and others vs Telecom Regulatory Authority of India and Others (2016) 7 SCC 703.
-------------------------------------------------
No comments:
Post a Comment