The Perils of Unlimited Review: Scrutinising The Court's Suo Moto Power Over Delegated Legislation

Anshul Dalmia*

Introduction

The Supreme Court (‘Court’) in the recent case of Bihar Rajya Dafadar Chaukidar Panchayat v. State of Bihar held that the constitutional courts had the power to suo moto declare a subordinate legislation invalid on the grounds of manifestly violating fundamental rights. The Court observed that such power could be derived from the vast reserve of powers present with the courts as depicted from Article 141 and Article 226.

As we are aware, subordinate legislation are legal instruments which are passed through executive action and casted away from the parliamentary processes. These instruments can range from rules to notifications to circulars. They can be passed by the executive only when the legislation delegates it with the legislative power. For instance, Section 101 of the Consumer Protection Act 2019 delegates the power to make rules to the Central Government. Based on this power, the Central Government passed several subordinate legislation such as the Consumer Protection (E-Commerce) Rules, 2020 or the Consumer Protection (Mediation) Rules, 2020.

In this blog-post, I question the Court’s decision which held that they had suo moto power to declare subordinate legislations invalid and examine the potential dangers of such an observation. Moreover, I highlight the plaguing issues that such an expansive form of judicial review over delegated legislation can have. Lastly, I argue how the safeguards imposed by the Court are also inadequate and insufficient to contain this blanket observation made.

A Sword Hanging Over Subordinate Legislation: Challenging The Presumption Of Constitutionality

The Court held that since subordinate legislation are removed from the democratic process, a more rigorous scrutiny could be undertaken in ‘appropriate’ cases. The absence of any parliamentary check warranted a higher degree of scrutiny over these laws. The Court forewarned that such an observation must not indicate a challenge to the presumption of constitutionality. However, the Court said that the level and the degree of presumption might vary legislation-to-legislation. The level was to be dependent on:

“factors such as (i) the nature of the subordinate legislation; (ii) the extent it is found to be in derogation either of the Constitution or the parent legislation which is its source; (iii) the exigencies and the manner in which the subordinate legislation is brought into force; and (iv) the potential impact on individual rights as well as public interest.”

I argue that the enumeration of the above factors raises several concerns which have not been considered by the Court. First, what exactly is meant by the ‘nature of subordinate legislation’? Marmor’s account on the nature of law indicates that this factor could be an investigation into the content of the law or what the law requires. Moreover, this question could change based on context and jurisdiction. Certain philosophers might argue that this factor could mean questioning the presence of the subordinate legislation itself. I contend that the ambiguity and vagueness of the first factor makes further judicial interpretation not only difficult but also leaves it open for future benches to impose their understanding of ‘nature’. Additionally, without ascertaining the meaning of nature, there is no indicative way of determining it. Thus, it becomes imperative to question, what are the objective factors on which Courts could precisely measure the ‘nature’ of subordinate legislation?

Second, what is the process of ascertaining if the subordinate legislation is either in derogation to the Constitution or the parent statute? I argue that the second factor must be examined contextually. The Court is silent to the degree of conflict evaluation which will take place between the impugned legislation and the Constitution or the parent act. Does this mean that if the Court decides to suo moto question the veracity of a rule, then it has the freedom to evaluate it based on all and any constitutional provisions and allied judicial interpretations? I contend that this would expose all delegated legislation to an extremely high standard of rigorous judicial scrutiny.

Additionally, I contend that the second factor violates the true essence and objectivity of the doctrine of presumption of constitutionality. In the case of St. John’s Teaching Institute v. Regional Director, it was held that judicial efforts must be always undertaken to preserve the vires of a subordinate legislation. The Court in this case had that the first step must be presumption of constitutionality. If there could potentially be an interpretation which could invalidate the delegated rule, the alternative interpretation to save the legislation must be taken. In future cases, the Court when it deems fit to exercise the said suo moto power, it will need to proceed on the understanding that the delegated legislation is unconstitutional (since it will have to base its jurisdiction through the second factor).

Third, how can we consider and determine the exigencies and the manner in which a subordinate legislation was passed? With respect to the third factor, I question if looking at surrounding circumstances such as the exigencies and the manner is the correct ground to question the veracity of a legislation. Additionally, how could the courts objectively assess the contextual exigencies and the manner? What are all the factors which would comprise of ‘exigencies and the manner’ in which the legislation is brought into force?

It can be counter-argued that since the executive passes these laws, it is imperative to question the contextual surrounding circumstances. It was seen that in recent years, substantive regulatory frameworks were introduced through subordinate legislation (for instance, governance of internet intermediaries or e-commerce businesses). Moreover, all these delegated rules were not placed before the Committee on Subordinate Legislation in either House of Parliament. In the situations that they were placed, the recommendations of the Committee were not adhered to. The motions raised by Committee Members against the impugned rules were also rarely discussed or considered by the House. Thus, in a way, the third factor allows for the consideration of such imperative contextual factors.

However, I argue that there is no reason as to first, why should the Court be required to assume such a responsibility. Such a judicial duty is not a compensatory judicial function but a clear overextension. The Court does not have the power to restrict or question the extent of delegation via legislation and accordingly, cannot review any overreach. Moreover, the reformation of parliamentary procedures is the panacea to this problem and hence, must be actively considered. Additionally, I argue that these problems are not associated only with subordinate legislations but rather plague the entire Indian Parliamentary structure. Recent work done by PRS Legislative Research highlights the grim situation of the Parliamentary working and functioning. Statistics reveal that the last Lok Sabha had the fewest sittings ever. The Parliament functioned for only 75% of its scheduled time and less time was being spent on questions and debates. It was seen that discussions in the Houses have reduced and so have the trust votes and adjournment motions. Bills were passed quickly, reports were presented quickly, and budgets were approved quickly. The Committees set-up met fewer than 20 times a year and had less than 50% attendance. Against this backdrop and considering these ‘exigencies and the manner’, the veracity and legality of all duly-passed parliamentary legislation could also be successfully challenged. Hence, I argue that considering surrounding contextual circumstances for verifying the vires of a subordinate legislation could pose an unfathomable danger.

Fourth, is potential impact on individual rights and public interest an adequate metric for challenging the legality of a delegated rule? Courts repeatedly have held that potential violation of a law cannot be grounds to challenge the law. Additionally, how would the Courts and on what objective grounds, would the Court be able to assess and identify the potential impact a subordinate legislation could have? This factor has also raised a valid concern which is that  now the Court would on its own volition be able to declare a subordinate legislation invalid on the grounds that there could be a ‘potential’ violation or impact to rights or liberties.

Lastly, the judgment is unclear if these factors apply similarly to all subordinate legislation, including subordinate legislation passed in lieu of a constitutional mandate. In the case of Supreme Court Welfare Employees Association v. Union of India, it was held that there was a higher degree of presumption of constitutionality in favor of subordinate legislation passed by virtue of constitutional conferment of power. Furthermore, rules made directly under the Constitution had a certain sense greater legislative efficacy than made under a statute. Additionally, the Court is unclear if all the above-mentioned factors have to be met or some of them, leading to considerable judicial and precedential confusion.

Power Without Limits? Examining The Efficacy Of The Safeguards Imposed By The Court

The Court in this case however held that such a suo moto power is not unrestricted. Such power has to be exercised by the Court, sparingly and with due care, caution, and circumspection. I argue against the efficacy of such a safeguard. Judicial history has showcased that such safeguards have been completely ineffective. Future benches rarely consider such caveats. An empirical study undertaken by Professor MP Ram Mohan, indicates the questionable vagaries of the Court while using Article 142 i.e., the power of the Court to do complete justice.

Moreover, this problem worsens in the current case wherein the suo moto power is held to be a part of the inherent powers of the Court. I argue that inherent powers in themselves are extremely vague in their application and approach. In the case of State (NCT of Delhi) v. K.L. Rathi Steels Ltd, it was held that inherent powers do not spring from specific legislation but from the nature and the constitution of the courts themselves. These powers are vested to enable the Courts to maintain their dignity, secure obedience to its process, protect its officers from indignity, punish unseemly behavior, and maintain the orderly administration of the justice delivery system.

Further, the Court in this case also held that the exercise of the suo moto powers shall be invoked only in cases where there has been an egregious violation of a fundamental rights which can be decisively opined by a binding decision of the Court. I contend that such a safeguard is also ineffective since this observation does not restrict the Court. Suo moto powers which are a part of the inherent powers of the Court to do complete justice could rarely be restricted by such disclaimers as empirically seen through Professor Mohan’s work. Thus, irrespective of these judicially provided safeguards, precedents and practicality dictate that they are less likely to be followed in future.

Conclusion

Through this blog-post, I have attempted to highlight the plethora of issues with the Court’s unrestricted suo moto power to declare a subordinate legislation invalid. Moreover, I have aimed to challenge the premise and the assumption on which this suo moto power exists, in the first place. Additionally, I have showcased how the vague and ambiguous observations add to the already existing judicial confusion present. Lastly, I have highlighted the ineffectiveness of the disclaimers, caveats, and safeguards imposed through this judgment.

Tushnet argues that courtrooms might not always be the most effective forum to realise constitutional promises or legal guarantees. The way forward to tackle this problem of subordinate legislation and excessive executive rule-making, hence must not be to provide such wide-ranging unrestricted powers to the Court but rather to safeguard the sanctity of our parliamentary processes and selectively reform procedures.  A systematic objective review must be undertaken to understand the degree of delegation which should be allowed expressly through legislation. Blanket powers to make rules and regulations within a parent legislation must not be provided as the norm but rather only as an exception. Additionally, the powers, and responsibilities of the Committee on Subordinate Legislation must be strengthened to ensure that an internal control via the Parliament is placed through effective oversight. Furthermore, the Court ought to be proactive while dealing with delegated legislation violating either the Constitution or the parent act. However, doing that through unlimited suo moto powers must not be the means. Thus, future benches of the Court must lightly tread the path of using suo moto powers on delegated legislation and consider all its potential dangers and consequences.

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*Anshul Dalmia is a Research Fellow at Charkha, the Centre for Constitutional Law at the Vidhi Centre for Legal Policy. He is a graduate of the University of Oxford and the WB National University of Juridical Sciences. He is extremely interested in constitutional study and constitutionalism.