Gowree Gokhale and Jaideep Reddy analyse the problems of delegated legislation and suggest ways to resolve them.
While the constitution and central and state statutes are the basis of India’s legal regime, delegated (or subordinate) legislation plays an important role in the regulatory landscape. Lawyers spend enormous amounts of time splitting hairs on myriad rules, regulations, orders, circulars, clarifications, advisories and office memos issued by various regulators.
Delegated legislation often creates thorny issues for the legal community. This is usually because of procedural shortcomings, ambiguous drafting and frequent amendments.
BASES OF AUTHORITY
One of the most important aspects of delegated legislation is that it should be framed within the four corners of the principal legislation, i.e. the particular statute. For this purpose, the principal legislation needs to provide policy guidance for the issuance of the delegated legislation. The policy may be specified through the preamble or other provisions of the statute, but must be mentioned within the statute. Where there is no such policy or the policy is vague, delegation is excessive. The Supreme Court has recognized this numerous times.
There have been several cases where principal legislation has not clearly defined the boundaries of delegated legislation. One contemporary example is section 67C of the Information Technology Act, 2000 (IT Act), which states that an “intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe”. Evidently, there is a lack of policy guidance in this section for the executive to frame rules.
In some cases, the reverse is true: delegated legislation or executive action goes beyond the law’s mandate. A few recent examples highlight this.
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GOWREE GOKHALE is a partner at Nishith Desai Associates in Mumbai. JAIDEEP REDDY is an associate in the firm’s Palo Alto office in California. He is working on an initiative to present access-to-law concerns to the government and to work towards solutions. The views expressed in this article are personal.