At present, on almost all the countries, the technique of delegated legislation is restored to and some legislative powers are delegated by the legislature to the executive. At the same time, there is inherent danger of abuse of the said power of the executive authorities. Delegated legislation has become inevitable but the question of control has become crucial.Judicial review refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with a statute, a treaty, or the constitution itself.
Judicial review in Bangladesh:
Article 7: (1) All power of the republic belongs to the people, and their supremacy of the exercise on behalf of the people shall be affected only under, and by the constitution authority of, this constitution.
(2) This constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency.
Article 26: (1) All existing law inconsistent with the provision of this part shall,to the extent of such inconsistency, become void on the commencement of this constitution,
(2) The state shall not make any law inconsistent with any provisions of this part and any law so made shall, to the extent of such inconsistency be void.
(3) Nothing in this article shall apply to any amendment of this constitution made under the article 142.
Article 44(1): the right to move the (High court division) in accordance with of article 102, for the enforcement of the right conferred by this part is guranteed.
Article 102 (1): the High court division on the application of any person aggrieved, may give such directions or order to any person or authority, including any person performing any function in connection with the affaires of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by part 3 of this constitution.
102(1)(2): called writ jurisdiction of the High Court Division of the supreme court.
Judicial Review may be sought on the ground of inconsistency with fundamental rights; as well as on the ground of legality and constitutionality administrative action.
Who can apply: any person except in the cases of Judicial Review for Habeas Corpus and Quo waranto.
Against whom: any person or persons in the affairs of the Republic under article 102(1).
Examples:
- Bilkis Akhtar Hossain vs Bangladesh,(1997) 17 BLD (HCD) 344, where the high court division directed the government to pay an exemplary compensation of tk 100000 to each of the four political detainees who were detained unlawfully and with BAD FAITH under the special powers act 1974.
2. In Mohammed Ali vs Banglades, (2003) 23 BLD (HCD) 389, a renowned journalist challenged the legality of midnight search without arrant of his house for a few consecutive days and sought to prevent such further activities. Having found that the police committed “excesses in abuse of their power” in the name of search and thereby caused loss, injury, humiliation and harassments to the petitioner, the court awarded what it called “token compensation” of tk. 5000 against each of the two concerned police officers personality.
Judicial review of delegated legislation in Bangladesh:
If the proclamation is issued at a time when parliament stands dissolved or the dissolution of parliament takes place during the period of 120 days after issuance of the proclamation, it shall cease to be operative at the experiration of 30 days from the date of the first meeting of the re constituted partition unless before expiry of that period of 30 days parliament approves it by resolution.
The issuance of the proclamation shall automatically suspend the operation of the fundamental rights guaranteed by article 36, 38, 39, 40, and 42 and a law made during the continuance of the energizing shall not the void because of in consisting with the provision of these articles for so long as the proclamation remain operative. A part from this the president with the written advise of the prime minister by order suspend the enforcement of any or all of the other fundamental rights guaranteed in part 111 of the constitution and such a suspension shall remain in force for so long as the proclamation remains in force. Every order suspending the fundamental rights must be placid before parliament. For example:
· Bangladesh Biman Corporation –v- Syed Aftab Ali and others, 39 DLR(AD) 151;
Controls of delegated legislation
Today the question whether delegated legislation is desirable or not is immaterial, rather what controls and safeguards are to the required that is to the determined? Controls over delegated legislation may be divided in to 3 categories:
a) Judicial control
b) Legislative power
c) Other control
A) Judicial control:
This the most important form of control over delegated legislation. Delegated legislation is subject to the scope of judicial review. Courts can decide the validity of delegated legislation mainly applying two tests:
1) substantive ultra vires
2) procedural ultra viers
Substantive ultra vires:
When the authority acts beyond the powers conferred upon it, the act becomes ultra vires. This ultra vires is called substantive ultra vires.
Delegated legislation may be challenged on the ground of substantive ultra vires in the following grounds
1. Where parent act is unconstitutional.
2. Where delegated legislation is unconstitutional
3. Where delegated legislation is inconsistent with the parent act.
4. Unreasonableness
5. Mala fide: Bad faith
6. Sub delegation
7. Exclusion of judicial review act.
8. Retrospective operation.
Now let us centre into the point’s detail.
1) Where parent act is unconstitutional
The enabling act must be valid and constitutional for delegation to the valid because if the delegation statute itself is ultra vires the constitution and is bad for that reasons, delegated legislation also is necessarily bad parent if the infringe the fundamental rights.
Example:
· Bangladesh Biman Corporation –v- Syed Aftab Ali and others, 39 DLR(AD) 151;
· Bangladesh –v- Subas Chandra Das and others, 46 DLR (AD) 63
2) Where delegated legislation is unconstitutional
It may happen that the enabling act may not be ultra vires the constitution yet the rules and regulation formed there order may violate any provision of the constitution.
In Naranda kumar vs union of India air 1960 se 430, the Indian SC held that even if the enabling act is introverts, the constitutionality of delegated legislation can still be consiclved because the law can not be presumed to authorities anything unconstitutional.
Example:
· Anwar Hossain Chowdhury and others –v- Government of Bangladesh, 41 DLR (AD) 165; BLD (1989) Spl. 1;
· Bangladesh Italian Marble Works Ltd. -v- Government of Bangladesh (the Constitution 5th Amendment Case) BLT (2006) Special Issue;
The rule was held ultra vires on the ground that the authority discretion vested in the administrative agency in granting or refusing permission amounts to unreasonable restriction on the exercise of the freedom and expression.
3) Where delegated legislation is inconsistent with the parent act.
The validity of the delegated legislation can be challenged on the ground that it is ultra vires the parent act. Authority must exercise power within the limit prescribed by the act. The validity of the rule enacted by the authority is always open to challenge.
In US vs. 200 barrels of whisky (1877) 95 571, the parent act provided for admitting duty free animals specially imported for breeding purpose. The regulation made under the act required the animals to be of a superior stoke if they were to be admitted duty free. The court held the regulation ultra vires because the parent act included all animals which the regulation confined its operation to animals of a particular stoke alone.
In Hodage vs Hodge 1 all ER 358, a statutory provision required a party to matrimonial proceeding to obtain the leave of the court before applying for the maintains. But there was no provision for such leave in the parent Act. The delegated legislation was held ultravires the parent act.
Example:
· National Board of Revenue -v- M/S. Batta Shoe Company (Bangladesh) Limited, 42 DLR (AD) 195;
State of Karnataka vs. Ganesh kamath Air 1983 SC 550 is another case on the point. 5.7 of the motor vehicles Act 1939 provided that a person who passes a test in driving a heavy motor vehicle is to be deemed to have passed the test in driving any medium motor vehicle also. Rule 5(2) framed under the act provided that though a person has passed the test for driving heavy motor vehicle, he can not obtain a license unless he has already possessed a lenience an has two year’s experience for driving medium motor vehicle. He can not obtain such license he has previously passed the test in driving medium motor vehicle. Thus even though under the parent Act it was not necessary before obtaining a license of a heavy motor vehicle to obtain a license of medium motor vehicle, under the rule, it was necessary. The Supreme Court held that scope of the rule traveled beyond the scope of the parent Act and was in consisted with it.
4) Unreasonableness
Bye-laws may be held Ultra vires on the ground of unreasonableness. There is an ampiled intention of the legislative is that the authorities should exercise the power reasonably. De smith rightly observed “….. there is no reason of principle why a manifestly irresponsible statutory instrument on that ground alone…….”
In Kruse vs. Johnson 1998(2) QB 91 20th Russell laid down the test of unreasonable of delegated legislation as:
A) Partial or unequal operation between different classes.
B) Manifestly injustice
C) Bad faith
D) Oppressiveness
E) Gross interference with the rights of the people that no legislation can he found in the mind of a reasonable man.
Example:
Bangladesh Biman Corporation -v- Rabia Bashri Irene and others, 55 DLR 132, the SC quashed the service regulation framed by Air India which had provided for the termination of service of Rabia Basshri. The court held this regulation as most unreasonable and arbitrary course of human nature. Legitimate Expectation; Non-discrimination; Fundamental Rights.
“This is a most irresponsible and arbitrary provision which shocks the conscience of the court…….. having taken the AH in service and after having utilized her service for four years, to terminate her service the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the terminator of the service of an Ah under such circumstance is not only a callous and cruel Act but on open insults to Indian womanhood the most sacrosanct and cherished institution. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality unfairness and exhibits naked nepotism and is therefore, celerity violence of Article 14 of the constitution”
On another case the Indian supreme court struck down some service rules which provided that a convicted government employee, even if he is in the appeal process will he paid Re 1 as subsistence allowance. The court held the provision as unreasonable and void. Justice chinappa Reddy observed.
The award of subsistence allowance at the rate of rs 1 per month can only the characterized as ludicrous. It is mockers to say that subsistence allowance is awarded and to awarded Rs 1 per month”
- state of Moharastra vs Chanderb van tale Air 1983 SC 803
similarly, in meenakshi vs. university of Delhi (1989) 3 scc 709 a condition requiring schooling for two years in any school in Delhi for admission to Medical Collage in Delhi was held to be authority and unreasonable.
In administrative law reasonableness is the standard indicated of the Act which distinguishes what the statutory authority may or may not be authorized to do. It distinguishes between proper and improper use of power, it is often expressed by saying that the decision is unreasonable authorities could have come. The essence of what is now commonly called “wednesbury unreasonaflencess’1991 3 scc 91. so an action of administrative authority will be considered as reasonable if it directs itself properly in law, considers the matter which it is found to consider, excludes irrelevant consideration and absurd that no sensible man could ever dreams that it lay within the powers of authority.
It is submitted that the correct test regarding reasonableness has been propounded by Patanjali sastri C.J.-
There is no universal standard of testing this . Third should be applied to each individual cases. The judges should take into account.
The nature of the right alleged to have been infringed. Underlying purpose of the restriction imposed. The extent and urgency of the evil sought to the remedied. The disproportion of the imposition. The prevailing condition at the time.In evaluating these factors the social philosophy and scale of judges play an important role. On the whole it should be dictated by their sense of responsibility.
5) Mala fide:
Administrative rule making can be challenged on the ground of mollified. In Kruse vs. Johnson (1898) 2 QB 91. being empowered the authority made a bye-law. Prohibiting any person from playing music or singing in any public places or high way in within 50 yards of any dwelling house. It was held ultravires on the ground of bad faith.
Example:
Bilkis Akhtar Hossain vs Bangladesh,(1997) 17 BLD (HCD) 344, where the high court division directed the government to pay an exemplary compensation of tk 100000 to each of the four political detainees who were detained unlawfully and with BAD FAITH under the special powers act 1974.
*Shfiuddin vs Bangladesh (1998)
6) Common law rights inconsistent with Parent Act.
Administrative rule and regulation can also be challenged on the ground that they arbitrarily interfere with common law rights of a privet citizen. In Spphy Kelly vsd state of moharastra (1967) 69 Bom lr 186
A regulation of the Education board provided that all headmasters should toward all forms all forms of conditions for S.S.C examination to the board irrespective of their academic progress during the year. It was held ultravires because the Headmasters have a common law right to forward the form of those students who make satisfactory progress during the year.
In the same manner in Chester vs. bateson (1920) 1 KB 829 a statute aphorized making of regulations for public safety and successful prosecution of war Regulation made there under provided that no premises can be recovered from the possession of any workman employed in the manufacture of war material and imposed a penalty for taking legal proceeding in this behalf ultravires the common law right of a private citizen to move a court of low for justice.
7) Sub delegation
“Delegation non polest delegate” so sub delegation is not generally allowed. But if the parent article authorizes to sub delegate. Then it is ok. If the parent Act permits sub delegation to officers or authorities not bellow a particular rank, then the power can be delegated only to those officers or authorities. Here it may be mentioned that the authority can not go beyond the power delegated.
8) Exclusion of judicial review act.
In an act a provision may be made that rules regulations, by-laws etc made under it “shall have effect as if enacted in the Act” “shall be conclusive evidence” “shall not be questioned in any court”etc. now the question is that whether this provision exclude court’s power of judicial review?
In bangladesh this question can not arise at all. Because under our constitution (article 102) doctrine of judicial review is accepted and treated as basic structure and treated as basic structure and essential features of the constitution. It can not be taken away by a statutory provision or even by a constitutional amendment.
In England where parliament is supreme and can exclusive judicial review of any administrative action. In Institute of patent vs. lockwood (1894) AC 347 Lord Herschell observed that the jurisdiction of the courts to question the validity of delegated legislation could be taken away.
But this view was subsequently disapproved by the house of lords in Minister of Health vs Yaffee (1931) Ac 494 . in this case Lord Dunedin observed” it is inconceivable that the protection should extend without limit. If the authority went out the province of its power …… it is replegnant to commonsense the authority’s act should be protected……”
So this can’t is saved by the finality clause.
The committee on Ministers power also recommended that the clause excluding judicial Review should be exercised in very restricted case and the special grounds should be stated in the Ministerial Memorandum.
REPEAL LAW
Power to repeal a law is essentially a legislative function and therefore delegation of power to the executive to repeal a law is excessive delegation and is ultravire. In England this power is very restrict used by the authority.
Here we may deal with non-obstinate classes. Some act says that “ not with standing anything contained in other exactenent” this law would prevail. The object of such clases is not to repeal other laws but just to by passing the difficulties.
Effect of ultra vires
If a subordinate legislation has been declared ultra vires by the court it becomes null and void. It will be considered if this rule or regulation was not in existence at all. Therefore it will neither operate as an stopped nor can it be ratified.
Example;
Bar council of India was empowered by the advocates Act 1961 to make rule about the qualification and conditions of an advocate to vote at an election. But the state bar council enacted such rule. Court held that this is ultra vires the Act and even a ratification by the Bar council of India can not save it.
-Bar council of INDIA v. surjeet sing (1980) 4 sec 211
Procedural ultra vires:
When a subordinate legislation fails to comply with certain procedural requirements prescribed by the parent act or general law it is known as procedural ultravires.
Parliament may require that certain procedure should be followed in framing rule legislation and bye-laws. As for example constitution and bye laws, laying them before parliament embodies or persons, publication of draft rule and bye-laws, laying them before parliament etc. the authorities should comply with this procedure failure to comply with it seen to invalidate the rule, none complain with a directly provision doesn’t invalidate subordinate legislation but failure to observe a mandatory and insperactive requirements does. These are two procedural requirements
1) Publication
2) Consultation
1) Publication:
It is fundamental principle of law that ignorance of law is no excuse but there is also another view that public must have access to the law and they should be given an opportunity to know the law. In opportunity to know the law, In case of parliamentary enactment the act receive sufficient publicity but this is not true in the case of delegated legislation so, it is essential to take step in this purpose. In England and USA publication is statutorily mandatory but there is no statutory provision requiring publication of delegated legislation. Yet the courts have treated publication of delegated legislation as an essential requirement for its validity.
In RAza Buland Sugar vs. ampur Municipality Air 1965 SC 859 it was held that the question whether the model manner and method of publication prescribed in a statute can not be answered with reference to any fixed formula. Much would depend on the language of the statute, the purpose for which the provision was made, the intention of the legislature inconvenience or institute to person resulting from whether the [provision was read one way or the other relation of a particular province to other provision dealing with the same subject and other consideration which may arise on facts of a particular case.
In Srinivassan vs state of Karnataka (1987) Air SC 1059 emphasis was made on proper publication of the subordinate legislation. If any particular mode is prescribed for publication that mode should be followed and if no mode is mentioned a suitable way should the emphases with.
However, the general model of publication is through the government notification.
2) consultation:
Consultation is an important way to cheek and content the exercise of legislative power. Through it, affected interest may take part in rule making process. It is a valuable safeguard to prevent the misuse a power. Wade and Philps rights says, “ one way of avoiding a clash between department exercising legislative powers and the interest likely to the affected is to provide for some of constitution”
According to the Griffith; such consultation are of two types:
1) ordinary types of consultation
2) Extraordinary types of consultation
1) Ordinary types of consultation:
These can be further sub-divided into two categories
a) Individual objections: generally, consultation of this kind is by statutory provision, e. g., factory laws. The proposed regulations are required to be published, objections are invited and opportunity of hearing is given to the affected persons.
b) Consultation with specified interests.
Here the minister is required to consult specified interests before he makes the regulations. Normally, these interests are statutory advisory bodies or local authorities.
2) Extraordinary types of consultation
These can also be sub divided into two categories
a) preparations by affected interests:
Here the power to draft the regulations is delegated to the individual or group and the minister become a confirming or approving authority. Under certain factory laws, the power of making rules to compel the observance of requirements of the laws regarding cleanliness, ventilation and general health maters is delegated to the occupier of the factory.
b) approval by statutory body:
Some statutes provide for submission of the draft of the regulations to a statutory body by the minister and the report of that body is to be laid before parliament.
Conclusion:
Plenary powers of law making are entrusted to elected representatives. But in reality, the political government, entrusted by the bureaucracy, gets bills passed through either by the aid of whip or by other methods. Thus, law making has remained, more or less, exclusive prerogative of a small cross section of elites. It affects not only the quality of the law made but reinforces centralized system of power. There must therefore be social auditing by public at large. Constitutional legitimating of unlimited power of delegation to the executive by the legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order.
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