We have come across the word Delegated
Legislation quite a time and the powers conferred on other bodies have
undergone a vast change and now they are empowered with quite a few powers
which were near to impossible in the last decade. it was in the year 1951 the
Supreme Court was referred to the decide on the issue of delegated legislation
under Article 143 of the constitution in the case of In re Delhi laws AIR 1951 SC 332 and the
seven Judges while allowing the delegated Legislation in India followed the
principle of separation of powers as it is in UK and negativing the principle
of strict separation of power of USA held that the delegated legislation is the
essential part of the Indian constitution. In this case in the ratio of 5:2 the
majority held that the separation of power was not followed in the strict sense
as in USA and held that the maxim "Delagatus
non potest delegare" was not applicable in Indian constitution and
Parliament of India was free to delegate some of its sub ordinate authorities
for the effective functioning of the legislature.
The ordinance making power of the Executive under
Article 123 and 213 of the constitution of India are held to be Delegated
Legislation that feature in our constitution as in these particular Articles
the power of perform the Legislature functions by the executive in case of dire
need has been highlighted and they are empowered with some power in case need
arises the power to be used by the executive.
But what about powers in the case of emergency in
our country? Is Emergency in our constitution a Delegated Legislation?
As we know the constitution of India
empowers only the legislature to make laws for our country though the
Legislature can assign some of its powers to some of its subordinates for
effective functioning and percolating the various legislative features down the
system but the executive in our country has also been empowered with
the Legislative powers to function in case of crisis situation when the
houses are not in session and some immediate situation has to be confronted
with. The executive functions at that point of time for the legislature and
performs the duty for the legislature as a delegated authority. In case of
Atlas cycles industries Vs. State of Haryana (AIR 1979 SC 1149) the Supreme
court has discussed about the Laying procedure of the delegated Legislature
before the Parliament which shows that the delegated Legislation are not
supreme but they have to be placed before the houses of the parliament for
their effective functioning. So delegated legislation has no value in law if it
is not approved by the parliament. So if the same principle is applied for the
powers of the executive in our country the executive is not supreme in its
sphere and whatever legislative act is passed by them during the period crisis
it is reviewable by the parliament and ultimate power lies with the legislature
to give validity to the law or revocate the decision of the executive.
Similarly in case of emergency situations under Article 352 and 356 the
president is empowered to declare emergency in the state for the failure of
constitutional machinery and for external aggression under Article 356 on the
aid and advice of the council of ministers so if the President declares
Emergency with aid and advice of council of ministers still the Legislature (
in the form of council of ministers) have a substantial control but still if it
is implemented it has to be again placed before the parliament and then the
fate of it can be decided whether it is repealed or extended. And same goes in
the case of ordinance also, the act of the executive has to be placed before
the parliament as soon as the parliament comes to session and if it is not
approved by the parliament the ordinance loses its validity.
So in
either ways the parliament will be the final authority in deciding over the
executive action taken during the crisis situation and we can say that the
functions of the executive in these crisis situations come under Delegated
Legislation as the ultimate authority to give validity to those acts of the
executive lies with the Legislature.
