lawandlegalissues

Delegated Legislation

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The delegation of legislative functions by the legislature to the executive has become necessity. The delegated legislation, now a days, a necessary evil. The growing tendency of Delegated legislation may result in ‘new depotism’ if it is not properly controlled.

What is delegated legislation?

Mukherjia J says,
“Delegated Legislation is an expression which covers a multitude of confusion”.

Jain and Jain
‘ the term delegated legislation is used in two senses
a) the exercise by a subordinate agency of the power delegated to it by the legislature
b) the subsidiary rules themselves whichare made bythe subordinate agency in pursuance of the power conferred on it by the legislature

Salmond,
‘that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or superior authority’

Donoughmore committee on Ministerial power
‘ the term delegated legislation means
a) the exercise of law making power by the executive under the authority delegated to it by parliament
b) the rules, regulations, bylaws etc made by the executive in theexercise of law making power delegated to it by the parliament.

The Supreme Court of India Agricultural Marketing Committee V Shalimar chemical Works Ltd AIR 1997 SC 2502
‘ Delegated legislation is the legislation which proceeds from any authority other than the soverign power and depend on source superior authority for its continued existence and validity’.

‘Delegated legislation refers to all law making which takes place outside the legislature and is generally expressed as rules, regulations, byelaws, orders, schemes, directions or notifications’.

The statute enacted by the legislature conferring the legislative power upon the executive is known as the ‘Parent Act’ or ‘Primary law’ and the rules, regulations byelaws, orders, etc made by the executive in pursuance of the legislative power conferred by the legislature are known as subordinate laws or subsidiary laws or child legislation.

REASONS FOR THE GROWTH OF DELEGATED LEGISLATION
pressure upon parliament’s time
Technicality (AIR 1997 SC 2502)
Flexibility
Experiment
To tackle Emergency situations
unforeseen contingencies
Complexity of Modern Administration

CLASSIFICATION OF DELEGATED LEGISLATION

Title based classification
Rule: For the definition see the General Clauses Act 1897
Regulation: An instrument by which decisions, orders and acts of government are made known to the public.
Order: in general order refers to Administrative Rule making.
Bye-laws: Rules made by semi-governmental authorities established under the Acts of Legislature
Directions: Expression of Administrative Rule making under the authority of law
Scheme: It is the situation where the law authorizes the administrative agency to lay down a framework.
Distinction based classification
Subordinate legislation: The process consist of discretionary elaboration of rules and regulations
Conditional Legislation: The statute that provides control but specifies that they are to go in to effect only when a given administrative authority finds the existence of conditions defined in the statute itself.

On Rule of Law

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Though the idea of the rule of law was not introduced by Dicey, he may be credited for popularising it. In his book Introduction to the study of law of the constitution (1885), he defended Britain’s system of an unwritten constitution and argued that this was a positive gain. Dicey summarised the rule of law under three heads.
1. Supremacy of the Law: No man could be punished or lawfully interfered with by the authorities except for violation of law. In other words, all government actions must be authorised by law. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law.

2. Equality before the Law: No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion.
3. Predominance of Legal Principles: There is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.(in England) The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
Rule of Law proposes that government should have restraints, not possess any arbitrary or discretionary powers, there should be legal controls over the government’s activities/actions and no one including government officials should be above the law. These principles if successfully attained within a society will result in national stability and security of citizens. There is a difference between Rule of Law and the Rule by the Law. Under the rule "by" law, law is an instrument of the government, and the government is above the law, therefore you cannot say law as supreme. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion. As an autonomous legal order, rule of law has at least three meanings imputed by Dicey above.

Defintions of Administrative Law

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Administrative law is a branch of public law which is concerned with the composition powers duties rights and liabilities of the various organ of Government which are engaged in public administration.

Davies: Administrative Law is the law concerning the powers and procedure of administrative agencies. (in his Administrative Law 1951)

Austin regarded Administrative Law as determining the ends and modes to and in which the sovereign powers shall be exercised. They shall be exercised:
1) directly by the monarch or sovereign member or
2) directly by the subordinate political superiors to whom portions of those are delegated or committed in trust.

Holland: Administrative Law as one of his six divisions of public law, the first was constitutional law as dealing with structure the second Administrative Law as being concerned with function of Administrative Agencies.

Bernard Schwartz: Administration law as the law applicable to those administrative agencies which posses powers of delegated legislation and or ad judicatory authority.(in his An introduction to American Administrative Law 1985)

Wade and Philips: It is the law relating to the organization and service performed by the various administrative agencies of government. It deals with the powers of all such bodies and determines their rights and duties.

Dicey: It is the law, which determines:

a) the position and liabilities of all State officials
b) the civil rights and liabilities of private individuals in their dealings with officials as representatives of the State and
c) the procedure by which these rights and liabilities are enforced.

Bibliography

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Books on Interpretation of Statutes referred

V Bhattacharya, Interpretation of Statutes, Central Law Agency, Allahabad (1999).
N S Bindra, Interpretation of Statutes, The Law Book Company, Allahabad (1997).
Vepa P Sarathi, Interpretation of Statutes, Eastern Book Company, Lucknow (2005).
G P Singh, Principles of Statutory Interpretation, Wadhwa Nagpur (2006)
M P Tandon, Interpretation of Statutes and Legislation, Allahabad Law Agency, Faridabad (2001).
B M Gandhi, Interpretation of Statutes, Eastern Book Company, Lucknow (2006).
D N Mathur, Interpretation of Statutes, Central Law Publications, Allahabad (2006).
A P Chatterjee, Interpretation of Statutes, Eastern Law House, Calcutta (1983).

Answers

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STATUTE: MEANING AND PARTS OF THE STATUTE

The word ‘Statute’ has many meanings. It may mean what is popularly called an Act of parliament, or a Code such as the statute of Westminster the First, or all the Acts, passed in one session, which was the original meaning of the word (R V Bakewell 1857[7] Ellis and Blackburn’s Reports, QB 846 at p 851-852). The Constitution of India doesn’t use the term Statute. It uses the term law often to describe an exertion of legislative power. The legislature as the representative of the people expresses its will and such expression of the will in accordance with the constitutional provision is a statute.

DEFINITIONS:

River Wear Commissioners V Adamson, (1876-77)2 AC 743: “A statute is the formal expression in writing of the will of the legislative organ in a state”.
Bouvier’s Law Dictionary: “A statute is a law established by the act of the legislative power, that is to say,an Act of the legislature”.
Halsbury Laws of England, 4th Edn, Vol 44 Para 801: “A statute is a declaration of the law as it exists or as it shall be from the time at which such statute is to take effect”.
Allen: “ A statute is the highest constitution formulation of law, the means by which the supreme legislature, after the fullest deliberation, expresses its final will”.
Padma Sundara Rao V State of TN AIR 2002 SC 1334: “ A Statute is an edict of the legislature. It is an established rule, formal regulation or ordinance enacted by the legislature”.
A P Chatterjee: “Statute means an Act of the parliament or of a state legislature, which means a bill properly and duly introduced in either house of the parliament or of the state legislature (where it is bicameral), passed by both the houses of parliament or of the legislature and thereafter assented to by the President or of the governor, as the case may be”.
So far as the meaning of statute in English Law is concerned, it is synonymous with an Act of Parliament. In broad sense of the term, it is the written law which the supreme legislation establishes directly.

PARTS OF THE STATUTE

1.Title
2. Preamble
3.Headings
4.Schedules
5.Marginal Notes
6.Definition Clause
7.Provisos
8.Explantions
9.Exceptions
10.Saving clauses
11.Illustrations
12.Punctuation
EXTERNAL AIDS OF INTERPRETATION
The phrase aid to construction means the help or assistance sought by the courts for construction of an ambiguous word. When outside sources are called in aid for the purpose of constructing a provision, it is called external aids to construction. If the language of the statute is clear and unambiguous there is no need to refer to any external aid. In MSSK Ltd Vs State Bank of India (2005 [4] Mh.LJ 629 Bom HC), the court held that, “there is no bar for resorting to external aid to interpret any writing in case of conflict or confusion or uncertainity, but not otherwise”.
Various external aids to the construction are as follows:
1.Parliamentary History
2.Historical facts
3.Dictionaries
4.Text Books
5.Statutes in Parimateria
6.Contemporonio Expositio
7.Codifying and Consolidating Statutes
8.Help from earlier statutes
9.Help from later statutes
10.Foreign Decisions
11.CAD, Fundamental Duties, Reports of the Committees and Commissions, Scientific Developments.

SUBSTANTIVE AND PROCEDURAL LAW: INTERPRETATION

The law which defines the rights is known as Substantive law. If the law provides the method of aiding and protecting the rights given by substantive law it is called as adjective law (Procedural law). Substantive law is concerned with the ends which the administration of justice seeks, procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.
According to Salmond, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions- using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purpose and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained.

Probable-Possible Questions on INTERPRETATION OF STATUTES ?

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1. What is a Statute? Briefly explain the different parts of the statute. 16

2. What are the external aids of Interpretation? Explain. 16

3. What is substantive and procedural law? Explain the rules of construction involving substantive and procedural law 16

4. Answer any two: 16
a. Penal Statutes;
b. Golden Rule;
c. Interpretation of the constitution;
d. Rule of Ejusdem Generis

5. Explain the following maxims: 16
a. Noscitur a socils
b. Expressio Unius Est Exclusio Alterius
c. Lex nil Frustra Facit

6. a) How far the statutes affect the crown? Explain. 06
b) Explain the presumptions against ousting jurisdiction and creating
new jurisdiction.

7. Discuss the principles involving Interpretation of Taxing statutes 16

8. Explain the subordinate legislation. Enumerate the principles to be
observed by the court while scrutinizing the piece of delegated legislation. 16

9. Write a note on any two of the following: 20
a. Primary Rule of Statutory Interpretation
b. Mischief Rule
c. Kinds of Statutes
d. Repeal

Interpretation of Statutes Chapterwise Questions

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INTERPRETATION: BASIC AND GENERAL RULES OF
1. ‘The language of the statute should be read as it is’-Discuss. Oct/Nov 2000
2. Define a statute. ‘A statute must be read as a whole in its
context’- Discuss Apr/May 2000
3. Explain the ‘Mischief Rule’ and the Golden Rule’ of Interpretation Apr/May 2000
4. Explain the ‘Mischeif Rule’. Dec 2001
5. ‘A statute must be read as a whole in its context’- Explain Apr/May 2001
6. Explain the primary rule of Statutory Interpretation. Apr/May 2001
7. Explain the rule of literal construction. Dec 2002
8. What is the meaning of Interpretation? Explain the primary rule of
statutory interpretation. May/June 2002
9. The Golden Rule is really a modification of the Literal Rule. Explain Dec 2003
10. Explain the Meaning and scope of Golden Rule. State its relevance
in interpretation of statutes. Dec 2004
11. Explain the mischief rule of construction with reference to the
decided cases Dec 2004
12. ‘The cardinal rule of construction of statutes is to read the statutes
literally, that is by giving to the words their ordinary, natural and
grammatical meaning’. Discuss May/June 2004
13. ‘It is said to be the duty of a judge to make such construction of a
statute as shall suppress the mischief and advance the remedy’.
Elucidiate. May/June 2004
14. ‘A statute should be read as a whole in its context’. Discuss Dec 2001, Nov/Dec 2005
15. What is literal construction? Distinguish it from Golden rule. Nov/Dec 2005
16. Explain the ‘mischief rule’ of construction as established in
Heydon’s Case Dec 2006

SHORTNOTES
1. Heyden’s Rule Oct/Nov 2000, Apr/May 2001, May/June 2002, Dec 2004
Nov/Dec 2005
2. Intention of the Legislature Dec 2006

STATUTE AND ITS KINDS
1. What are the different classifications of Statutes? Explain. Dec 2004
2. What is a Statute? Explain the various types of statute. May/June 2004
3. Briefly explain the classification of Statutes Nov/Dec 2005

SHORTNOTES
1. Consolidating Statutes Apr/May 2000, May/June 2002
2. Codifying Statutes May/June 2002, Dec 2003

INTERNAL AIDS OF INTERPRETATION
1. What is a Statute? Explain in brief the internal aids to interpretation. Oct/Nov 2000
2. What is a Statute? Explain the internal aids of interpretation. Dec 2001
3. Explain the different internal aids to construction of statutes. Dec 2004
4. Discuss the ‘intyernal aids’ to the construction of statutes May/June 2004
5. Explain briefly the different parts of a statute and their importance
in interpretation. May 2005

SHORTNOTES
1. Title and Short Title Nov/Dec 2005
2. Long Title, Non obstante clause, Headings and Marginal Notes Dec 2006

EXTERNAL AIDS OF INTERPRETATION
1. What is a Statute? Explain the external aids of interpretation. April/May 2001
2. Are there any external aids in interpreting a statute? Discuss Dec 2002
3. What is a Statute? Explain the external aids of interpretation. (R R S)Dec 2002
4. Discuss the role played by Parliamentary history, Government
Publication and Dictionaries in the interpretation of statutes. Dec 2004
5. Briefly explain the importance of different external aids to
Interpretation. Dec 2005
6. What is a Statute? Explain the external aids of interpretation. May2005
7. What are the External Aids of Interpretation? Explain. Dec 2006

SHORTNOTES
1. Dictionaries, textbooks and use of foreign decisions Oct/Nov 2000
2. Usage and Contemporania Expositio April/May 2001
3. Construction by reference to later legislation. Dec 2002
4. Dictionaries, textbooks and use of foreign decisions May/June 2002
5. Pari materia Dec 2003