DEBATE OF JUDICIAL REVIEW ON DELEGATED LEGISLATION IN INDIA: A CRITICAL ANALYSIS

AUTHOR – NAVEEN KUMAR M, STUDENTS AT SCHOOL OF EXCELLENCE IN LAW, THE TAMILNADU DR. AMBEDKAR LAW UNIVERSITY, CHENNAI

BEST CITATION – NAVEEN KUMAR M, A STUDY ON MIGRANTS AND THEIR HUMAN RIGHTS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (3) OF 2024, PG. 372-374, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

The increasing engagement of the judiciary within the realms of constitutional democracy in India has triggered debates on the issue of judicial review over subordinate legislation. Subordinate or secondary legislation refers to various secondary statutes legislated by the executive on behalf of the primary laws enacted by the legislature. It is important in the practice of administration to tackle certain details on matters like public health, the environment and labor law. Still, excessive delegation especially to the executive branch raises some red flags which the courts seek to settle through the ultra vires doctrine, which ensures that the delegated legislation conforms to the provisions of the enabling statute that is the primary law.

Issues of excessive delegation, tension in the non-delegation doctrine and practical necessity, and other nations ongoing problem of adequate control while avoiding judicial overreach are still prevalent to date. Courts have set some landmark decisions that have greatly limited the scope of delegating power, examples include the Re Delhi Laws Act case in 1951 and Hamdard Dawakhana v Union of India 1960. In the end, Indian judicial review does not subserve the principles of good governance, executive action and respect for the Constitution and other laws in the country. Delegated legislatures are necessary in ensuring that the lawmakers’ intent is followed without violation of the fundamental rights that are more often than not taken by the state in the name of efficiency. There rests the challenge that the courts must balance so that they do not enter into the sphere of making policy for the executive.