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Other Controls on Delegated Legislation

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Other Controls on Delegated Legislation C h a p t e r VI OTHER CONTROLS ON DELEGATED LEGISLATION The ambit and nature of judicial control of delegated legislation would have become clear from the materials contained in the last chapter. It would appear that this kind of control does not go very deep, that it is somewhat superficial, touches only a few, and not all aspects of delegated legislation, and that it scrupulously avoids going into questions of policy. The power of delegated legislation is being exercised on a very extensive scale. Legislatures in India indulge in very broad delegation of legislative power and the judicially created doctrine of “Policy” has not been very much effective in controlling the delegation. Moreover, in the modern society which is undergoing a kind of socio-economic evolution, and is constantly facing emergencies, domestic and international, there is bound to be broad delegation of legislative power on the administration by the legislature. But this makes the problem of control and supervision of the exercise of power of delegated legislation a desideratum. The power which musi, more and more be lodged in administrative experts, like all power, is prone to abuse unless its exercise is properly and zealously scrutinized. As the Committee on Ministers' Powers itself admitted, safeguards are required, if the country is to continue to enjoy the advantages of the practice of delegated legislation without suffering from its inherent dangers. The departmental officials who make the bulk of delegated legislation are neither subject to any political control nor they function openly. The civil servants enjoy a security of tenure and they work remote from the light of public criticism, There are, therefore, risks that the power of delegated legislation may not be properly exercised. The judicial control having its limits, it becomes extremely necessary to devise other ways ^nd means to supervise and control the exercise of legislative powers by the administration. 368 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 SECTION 1. PUBLICATION OF DELEGATED LEGISLATION The maxim that ignorance of law is no excuse can be tolerable only when proper steps are taken to publicise the law. It will be unjust to impute knowledge of the law, and thus punish the people for its breach, if the law remains a sealed book and no efforts are made to bring the same to the notice of the people who are required to observe it and no means are provided to them to ascertain what the law is in case they care to find it out. The problem arises in the area of delegated legislation much more acutely than it does in the case of legislative enactments. The reason is that in the latter case, the process of legislation is overt, direct and open, and a lot of publicity takes place through the press aind the radio even before, and also at the time the legislature proceeds to enact a law. Legislation is a highly formal procedure and there are several stages through which a bill must pass before it can become an Act. There is, however, no such pubUcity or formality in the case of delegated legislation which is made by bureaucracy, mostly out of the public gaze, and even, out of their knowledge. Therefore, while knowledge of legislation can be imputed, the same is not possible, consistent with the requirements of justice, in case of administrative rule-making unless some machinery is created for publicising the same so that it may be readily available to those affected. Furthermore, publication of rules, it is hoped, will act as a restraint on the legislative power of the administration. With the above considerations in view, each democratic country has evolved some procedures, rules and machinery facilitating publication of delegated legislation. Publication may either be antecedent and/or posterior, i.e., ante­ natal and post-natal which means delegated legislation may be publicised before it is formally made, and/or after it i§ formally made. It would appear that the latter is absolutely essential, while the former, though desirable, may not be regarded as absolutely essential. It is just to inform the people as to what the law is; it may be politic to warn them beforehand as to what the law is going to be. Until January 1, 1948, in ^iigland, section 1 of the Rules Publication Act, 1893, provided for ante-natal publication of rules, subject to certain exceptions. The Committee on Ministers’ Powers recommended that these exceptions may be abolished so that the provisions as to antecedent publicity might apply to every exercise of a law-making power conferred by Parliament. The same Act also SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 369 provided for post-natal publicity of the rules. In 1946, the Statutory Instruments Act repealed the Rules Publication Act, While eliminating ante-natal publicity the Statutory Instruments Act provides only for post-natal publicity. The relevant provisions of the two Acts are given below. RULES PUBLICATION ACT, 1893. An Act for the Publication of Statutory Rules (2Jst DECEMBER 1893.) 1 —(I.) At least forty days before making any statutory rules to which this section applies, notice of the proposal to make the rules, and of the place where copies of the draft rules may be obtained, shall be published in the London Gazette..,. (4.) The statutory rules to which this section applies are those made in pursuance of any Act of Parliament w^hich directs the statutory rules to be laid before Parliament, but do not include any statutory rules if the same or a draft chereof are required to be laid before Parliament for any period before the rules come into operation, nor do they include rules made by the Local Government Board for England or Ireland, the Board of Trade, or the Revenue Departments, or by or for the purposes of the Post Office; nor rules made by the Board of Agriculture under the Contagious Diseases (Animals) Act, 1878, and the A cts amending the same. (5.) This section shall not apply to Scotland. (6.) In the case of any rules which it is proposed shall extend to Ireland, publication in the Dublin Gazette of the notice required by this section shall be requisite in addition to, or, if they extend to Ireland only, in lieu of, publication in the London Gazette. 2. Where a rule-making authority certifies that on account of urgency or any special reason any rule should come into immediate operation, it shall be lawful for such authority to make any such rules to come into operation forthwith as provisional rules, but such provisional rules shall only continue in force until rules have been made in accordance with the foregoing provisions of this Act. 3.—(1.) All statutory rules made after the thirty-first day of December next after the passing of this A ct shall forthwith after they are made be sent to the Queen’s printer of A cts of Pg.rliament, and 370 INDIAN ADMINISTRATIVE'LAW [ CHAPTER 6 shall, in accordance with regulations made by the treasury with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, be numbered, and (save as provided by the regulations) printed, and sold by him. (2.) Any statutory rules may, without prejudice to any other mode of citation, be cited by the number so given as above mentioned and the calendar year. (3.) Where any statutory rules are required by any Act to be published or notified in the London, Edinburgh, or Dublin Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with the said requirement. (4.) Regulations under this section may provide for the different treatment of statutory rules which are of the nature of public Acts, and of those which are of the nature of local and personal or private Acts; and may determine the classes of cases in which the exercise of a statutory power by any rule-making authority constitutes or does not constitute the making of a statutory rule within the meaning of this section, and may provide for the exemption from this section of any such classes. (5.) In the making of such regulations, each Government department concerned shall be consulted, and due regard had to the views of that department. JONES v. ROBSON (1901) 1 K. B. 673 [Section 6 of the Coal Mines Regulation Act, 1896, ran as; “A Secretary of State, on being satisfied that an explosive is or is likely to become dangerous, may, by order, of which notice shall be given in such manner as he may direct, prohibit the use thereof in any mine or in any class of mines either absolutely or subject to conditions...." On the hearing of a summons against the manager of a mine for contravention of an order purporting to be made by a Secretary of State under the above section, a ‘Queen’s Printers’ copy of the order was put in evidence; but no evidence was given of any notice by the Secretary of State of the making of the order or of any direction by him as to the manner in which notice of the order should be given.] SECTION 1 ] OTHER CONTROL ON DELEGATED LEGISLATION 371 Bruce, J. : ....The main point relied upon for the appellant was that there was no evidence that any notice had been given by the Secretary of State of the order or that any direction had been given as to the manner in which the notice should be published. I am not satisfied, after considering the evidence on behalf of the respondent, that any notice was given by the Secretary of State, or that he did direct in what manner the notice should be published, and therefore, I am driven to consider whether the giving of the notice and the publication of the notcie by the Secretary of State is or is not a condition precedent to the order coming into force.
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