Explain the concept of subordinate legislation in India. Also discuss the mechanisms for their scrutiny and control.(250 words)

Mentors Comment:
Briefly explain subordinate legislation in India.
Discuss the criticisms of subordinate legislation and the need of scrutiny.
Discuss mechanisms of scrutiny and control (Parliamentary scrutiny (debate, question hour, motions and committees); judicial interpretation and public consultation).
Conclude with the need to reconcile subordinate legislation with parliamentary primacy in law
making.

Answer:
Subordinate legislation is a process by which the executive is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature‟s authority. Article 13(3) of the Indian Constitution includes within the definition of law forms of subordinate legislation such as order, rule, regulation, notification.

The need for subordinate legislation arises due to:
limited time available for legislation in Parliament due to overburdening,
increasing complexity requiring knowledge and experience of experts.
covering those situations which have not been anticipated by the Parliament.
flexibility in meeting emergency situations.

However, the concept of subordinate legislation faces criticisms on many grounds including undermining separation of power, legislation by unelected people, lack of publicity, etc.

Thus, there are various mechanism for scrutiny and control of delegated legislation. For example:
Parliamentary scrutiny and control: It occurs at various levels such as:
During the debate on the Act, the relevant departmental standing committee may recommend the scope of delegated legislation.
Statutory motion to discuss rules: After the rules have been tabled, MPs may move a statutory motion seeking an annulment or modification of the rules.
Question Hour
Committee on Subordinate Legislation: Both the houses have a Standing Committee on Subordinate Legislation to oversee whether the power delegated by Parliament to the government is being properly exercised.
Every delegated legislation needs to be laid before the Parliament within a stipulated time frame.
Public consultation: Some Acts mandatorily require prior publication and consultation on draft rules while in others the government may exercise its discretion and invite comments on the draft rule.
Judicial scrutiny and control: Delegated Legislation may be declared invalid on the grounds of violation of the Constitution of the India or the violation of the enabling Act.

There has been an exponential rise in delegated legislation in India. Thus, apart from strengthening the existing mechanisms, a separate law like the Statutory Instruments Act of the UK, providing for uniform rules of laying and publication, may be looked into . The committees of Parliament may be supplemented by a specialized body to make vigilance of delegated legislation more effective and reconciled with democratic principles of parliamentary control.

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project _osiris
project _osiris
3 years ago

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