Judicial Review of Delegated Legislation in Nepal: Trends and Practices

Abstract

The concept of delegated legislation, whereby the legislative body of Parliament delegates powers to the executive branch for the formulation of rules and regulations, has become a standard feature of modern governance systems. However, the delegation of powers to the executive branch raises considerable concerns regarding the excesses of the executive branch and the implications for democracy and constitutional governance. This piece provides a critical analysis of the approach taken by the judiciary in Nepal with respect to delegated legislation, with particular emphasis on the approach taken by the Supreme Court. The analysis is qualitative in nature and draws on the principles of constitutional law and administrative law. The findings suggest that, while the Supreme Court has developed a rich jurisprudence with respect to the ultra vires doctrine and the protection of fundamental rights, the approach taken by Parliament is extremely poor. The Court has established several clear rules. Delegated legislation should remain within the limits of the parent Act. There is a clear distinction between substantive and procedural, which is for Parliament and which is for delegation. Judicial review should be applied thoughtfully in protecting fundamental rights through carefully examining delegated laws. The executive should act promptly when using delegated powers. However, even here, judicial safeguards, early parliamentary scrutiny is absent, and guidance is unclear, which is a problem. The article concludes that judicial review is an important safeguard, but it is equally important to strengthen parliamentary scrutiny and clear rules of non delegation so delegated legislation in Nepal is within constitutional limits.