Law and You > Administrative Law > Growth of Delegated Legislation
The Constitution of India empowers Legislature to make laws for the country and it is the power of the executive to administer and execute the law made by the legislature. This is in accordance with the doctrine of the separation of power. However, frequently enacts legislation containing provisions which empower the executive government, or specified bodies or office-holders, or the judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have the effect of law. This form of law is referred to as “delegated legislation”, “secondary legislation”, “subordinate legislation” or “legislative instruments”. Regulations and Statutory Rules are the most common forms of Delegated Legislation. They are made by the Executive or a Minister and apply to the general population. By-laws, and sometimes Ordinances are made by a Local Government Authority and apply to the people who live in that area. Rules commonly describe the procedure to be followed in Courts. In this article, we shall study the factors responsible for the growth of delegated legislation.
The following factors can be regarded as principal factors that have contributed to the growth of delegated legislation.
Technical Issues:
Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. When the subject matter under the Act is completely technical in nature, then a consultation of experts is required. Therefore, legislative power may be granted to experts for them to deal with the technical issues i.e. labour, tax, gas, atomic energy, drugs, electricity, etc.
Complexity of the Modern State:
In a welfare state, the Government has to look after many issues related to citizens including employment, health, education, regulating trade, industry, commerce, etc. This resulted in the complexity of modern administration and the expansion of its functions. The administration has to look after the economic and social issues. This leads to the formation of a new form of legislation and to give wide powers to various authorities on various occasions. It is necessary that the administration should be given ample power to implement such a policy so that immediate action can be taken. The objective of the welfare state cannot be achieved without delegated legislation.
In Devi Das Gopal Krishan v. State of Punjab, AIR 1967 SC 1895 case, Subba Rao, CJ. provided another justification for delegated legislation that the Constitution confers power and imposes a duty on the legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. The legislature must necessarily delegate the working out of details to the executive or any other agency.
Pressure on Parliamentary Time:
Due to complexity of modern State, the area, scope, or horizon of state activities are expanding day by day and it is difficult for the Parliament to make laws on each and every matter and it is not possible for the Parliament to devote sufficient time to discuss all the matters in detail. They are required to carry out a lot of work and they also have to make legislation on various other matters. Hence the Parliament formulates the general policy – the skeleton and empowers the executive to fill in the details by issuing necessary rules, regulations bye-laws etc. It saves time and avoids overloading of the Parliament. Thus the delegated legislation can be amended and/or made without having to pass an Act through Parliament. As the long procedure of enactment of law trough, the Parliament is avoided and time is saved.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business”.
In Avinder Singh v. State of Punjab, AIR 1979 SC 321 case, Justice Krishna Iyer observed that making of laws is not at all perfect and refined in every detail. Legislation will be made easier once that is understood.
Flexibility:
Parliament cannot foresee all the contingencies while passing on enactment. At the same time, the parliamentary amendment is very slow and it requires to follow a strict prescribed procedure to make any type of law. But in the case of delegated legislation changes in the legislation take place more frequently and without delay with the help of the executives, e.g., police regulation, bank rate, import and export, foreign exchange, etc. Moreover, the implementation of the law becomes easier and flexible by means of delegated legislation. So it is necessary to give work to the lower body to have that work in a smooth and better manner.
Experimentation:
The effectiveness of any law depends on whether it is working in perfect condition or not. For this live experimentation is to be done during the implementation of the law. The delegated legislation enables the Executive to experiment. This method permits the rapid utilization of experience and implementation of necessary changes in the application of the provisions in the light of such experience. It helps in making necessary changes in the application of the provision made by the Parliament. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately. For example, in traffic matters of the road an experiment method can be conducted and in the wake of its application necessary changes can be made in the provisions.
Emergency Situations:
Delegated legislation is very important in dealing with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. In times of war, internal disturbances, flood, and other national emergencies, the executive are vested with extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars similarly in cases of epidemics, floods, inflation, economic depression, etc. Some examples of delegation in England during the First and Second World War are the Defence of the Realm Act 1914-15, the Emergency Power Act, 1920, etc. Similarly, in the case of inflation, flood, epidemic, economic depression, etc. immediate remedial actions are necessary.
Better Understanding of Ground Realities:
Many times the local authority knows the ground situation correctly and objectively. Thus the local authority can make law in accordance with what their locality needs.
Advantages and Disadvantages of Delegated Legislation:
Advantages of Delegated Legislation:
The above factors that helped in the growth of delegated legislation can be considered as advantages of delegated legislation. Other advantages are
- Control over administrative authorities: In the absence of rules and regulations, administrative authorities may enjoy wide and uncontrolled discretion. It is thus better to control this discretion through appropriate rules and regulations.
- Conditional Legislation: An act may provide that it shall come into effect when certain conditions are fulfilled. Practically speaking, administrative authorities are better suited to verify the fulfillment of such conditions and bring the Act to effect.
Disadvantages of Delegated Legislation:
- Undemocratic Procedures and No Parliamentary Debate: In a democracy, the laws are made by the Parliament after the debate. In delegated legislation, the legislation comes into effect as a result of undemocratic processes and procedures without any debate in the parliament. They are made by a bureaucrat. They are in the form of by-laws, rules, and regulations.
- Lack of Publicity: Drafts of important bills are often published for public comment and criticism. In delegated legislation, the legislation is made by the executive for which no public comments or criticism is invited. Thus the legislation lacks prior publicity. The debate in the Parliament on the important bill is widely published in the media. As there is no debate in the Parliament, and it is passed by the executives directly the delegated legislation lacks post publicity also.