A STUDY ON PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION IN INDIA AND BANGLADESH

Parliamentary Control

Parliament has initial control over statutory instruments after passing an enabling Act, which provides other entities or individuals the right to enact rules and regulations.[1] As an example, in the Aylesbury Mushroom Case[2], the Minister for Labor was required to consult "any organization appearing to him to be representative of substantial numbers of employers engaging in the activity concerned," and the fact that he did not consult the Mushroom Growers' Association meant that his artillery was invalid. This is also demonstrated in R v Home Secretary, ex parte Fire Brigades Union[3], which decided that changes the Home Secretary made to the Criminal Injuries Compensation scheme were beyond the power the enabling act gave him, the Criminal Justice Act 1988, this case decided that any delegated legislation which is ultra vires, beyond its capabilities, is void.

Consequently, all along, Parliament can restrict the powers of bodies and people making chosen rules and put down procedures to continue with their creation. Expecting those making the given out rule go past their abilities or ultra vires, the law will be void.

Nonetheless, frequently empowering acts will concede broad powers to bodies or people making assigned regulations, for example, Section 8 of the Access to Justice Act 1999, which sets out rules for the Community Legal Service to think about while offering public subsidizing, yet in addition, permits the standards to incorporate 'such different elements as the Lord Chancellor may be arranged to require the Commission to consider.[4] In this way, the Lord Chancellor was provided the ability to add to the standards without alluding it to Parliament and with minimal outright command over the options he could make.

Control of Delegated Legislation in India

Under a parliamentary democracy, it is a function of the legislature to legislate. It is the right and the legislature's duty to look upon its agent and how they are working. Because of an assignment of force and general control principles, legal control has reduced and contracted its region. In India, "Parliamentary control" is an inborn protected work because the chief is answerable to the council at two control stages.

· Initial stage

· Direct and Indirect stage

The underlying stage is to conclude how much power is expected to be assigned to follow through with the specific responsibility. It is additionally seen whether the designation of force is substantial.

Presently, the subsequent stage comprises two individual parts.

· Direct control

· Indirect control

Direct Control

Laying is a colossal and vital viewpoint under direct control. It revolves according to the need, and that truly expects that it ought to be put before the Parliament resulting to making the standard. It incorporates three chief parts according to the level of control that should be worked out.

· Simple Laying

· Negative Laying

· Affirmative Laying

Furthermore, "Test of Mandatory" & "Test of Directory" are two main tests.

Test of Mandatory: Where the laying demand is a condition pattern to guide the rule into impact, then laying need is mandatory in such a case.

Where the provision is mentioned that authority should draft the rules in a particular format, then it becomes mandatory to follow the format.

Test of Directory: Where the laying need is next to enforce the rule into operation, it will be directory in nature.

Indirect Control

This is control practiced by Parliament and its panels. One more name for such kind of board is Subordinate regulation. The principal work of the board is to analyze -

· Whether the standard is as indicated by the general object of the demonstration.

· It bars the locale of the court in primary or roundabout ways.

· Regardless of whether it makes a review difference.

· Whether it shields or annihilates the Principle of Natural Justice.

· The consumption associated with it is from the Consolidated Fund.

As in India, and Parliamentary control covers the assigned rule. In light of everything, the advance notice get-together of Parliament ought to be satisfactory, and separate rules ought to be made and passed, which give a uniform guideline for putting down and scattering purposes. An admonition gathering should contain a specific body to take a gander at the assigned work, whether it is going down the correct way and really. Every one of the three organs ought to zero in on their work and not interfere pointlessly to ruin jumble in the framework.

In Avinder Singh vs. State of Punjab[5], Justice Krishna Iyer rightly stated that parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.

CONTROL OF DELEGATED LEGISLATION IN BANGLADESH

Article 65(1) of the Constitution of Bangladesh empowers the Parliament to delegate to any person or Authority, by Act of Parliament, power to make orders, rules, regulations, bye-laws or other instruments having legislative effect.[6] This system of Subordinate legislation empowers Ministers and other authority to regulate administrative details under the authority of a particular Act of Parliament.

The Bangladesh Jatiya Sangsad (Parliament) is empowered through Article 76 of the Constitution to appoint several standing committees, including the Public Accounts Committee and the Committee of Privileges, to examine legislative proposals, consider bills, inquire or investigate the performance of the ministries, and review measures for the enforcement of the law for proper governance.[7]

Parliamentary command over the delegated regulation is practiced at three stages. The first stage is when the power is delegated to the subordinate authorities by Parliament. This stage comes when the Bill is introduced in the legislature. At this time, Parliament decides how far power would be delegated to the subordinate authority.

The second stage is when the rules made under the statute are laid before the House through the committee on subordinate legislation. Such a committee is commonly known as Select Committee on Statutory Instruments or Scrutiny Committee. The committee on subordinate legislation scrutinizes the rules framed by the executive and submits its report to the legislature if these rules are beyond the permissible limits of delegation.

The third stage starts in the House after the committee has submitted its report. The rules, along with their reports, are debated in the House. If the rules are ultra vires, questions may be put to the Minister concerned, and if necessary, even a motion of censure on the Minister responsible for the laws and regulations may be moved.

No research statistics have yet been made in Bangladesh as to what percentage of total laws in Bangladesh consist of delegated legislation. Nevertheless, almost 90% of Acts and Ordinances provide for the delegation of legislative power to the executive. The most considerable portion of the law in the country comes from delegated legislation. The reality is that a very inadequate piece of legislation is enacted by Parliament, providing only the skeleton and allowing the officials and executives to frame by-laws, rules, and orders, thereby making the executive the real law-makers.

Often, these Acts of Parliament even omit to provide the guidelines and criteria for making rules and exercising the executive's discretion. These excessive delegations almost amount to the abdication of the legislative power of the Parliament. Because unlike in Britain, there is no parliamentary control in Bangladesh over delegated law. No select committee exists to scrutinize and make reports on delegated regulations. No statutory instrument Act in Britain has yet been done in Bangladesh. The delegated rules, therefore, are not laid before Parliament. Nor is there any mandatory obligation on the part of the executive to publish the trusted law for the information of the public before their application.

Often delegated regulations in the form of Statutory Rules and Orders (S.R.O.) are contradictory, confusing, unclear, and allow enormous discretion to be exercised by the executives. It suits bureaucracy enjoying vast power. These delegated laws sometimes expressly violate even constitutional provisions.

The only control which exists in Bangladesh is judicial control. The High Court Division of the Supreme Court can declare the parent Act or Ordinance unconstitutional on excessive delegation or violation of fundamental rights. The court can consider whether the delegated law is consistent with the 'enabling Act' provisions on the ground of ultra vires.

Concluding Remarks

Delegated legislation is the law made by some person or body or authority other than the parliament. The authority is laid down in a parent act of parliament, known as an enabling act which creates the structure of law and then delegate powers to others to make more detailed law in the area. Thus, parliamentary control over delegated legislation is a vital concept for both India and Bangladesh. But the actual practice and implementation of parliamentary control over delegated legislation in both countries are different from each other.

~Authored by Md. Shawkat Alam Faisal

References:
[1] John W Salmond and PJ Fitzgerald, Salmond on Jurisprudence (1966).
[2] Agricultural Training Board v Aylesbury Mushrooms (1972), 1 All ER 280.
[3] R v Home Secretary, ex parte Fire Brigades Union (1995), 2 AC 513.
[4] The Access to Justice Act 1999, s 8.
[5] Avinder Singh vs. State of Punjab, AIR (1979) SC 321.
[6] The Constitution of Bangladesh 1972, art 65(1).
[7] Ibid, art 76.