Law and You > Administrative Law > Introduction to Delegated Legislation
What is 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”. Another definition is that legislation by any statutory authority or local or another body other than the Legislature but under the authority of the competent legislature is called Delegated legislation. The delegated legislation has the same legal standing as the Act of Parliament from which it was created.
This arrangement has the appearance of a considerable violation of the doctrine of the separation of powers. This doctrine of the separation of powers has been largely preserved by a system for the parliamentary control of executive law-making. In short, delegated legislation means the exercise of legislative power by an agency that is subordinate to the legislature. This subordinate body acquires power from the act of the legislature. Power is transferred from the principal lawmaker to the lower body, which may be the executive, cabinet, council of minister, or a specific administrative agency, by the mechanism of delegation.
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.
Under Section 129 of the Civil Procedure Code (CPC) empowers the various High Courts to annul, alter or add to any of the rules contained in the Code.
Characteristics of Delegated Legislation:
- These are the laws made by persons or bodies to whom parliament has delegated law-making authority.
- They are made as per the Principal Parliamentary Act which has a provision for Subsidiary Legislation to be made and specified who has the power to do so under that Act
- It is required in enabling or parent Act
- It contains many administrative details necessary to ensure that the provisions of the Act will operate successfully.
- It may be administered by Government Departments, Local Councils or Courts
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 a 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.
In D. S. Gerewal v. State of Punjab, 1959 AIR SC 512 case, the Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo observed, “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.”
In Raj Narain Singh v. Chairman Patna Administration committee, AIR 1954 SC 569 case, which Section 3(1)(f) of the Bihar & Orissa Act, empowered the local administration to extend to Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to such modification, as it might think fit. The government picked up section 104 and after modifications applied it to the town of Patna. One of the essential features of the Act was the provision that no municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. The sections which provided for an opportunity to object were excluded from the notification. It was held as amounting to tamper with the policy of the Act.
In J.K. Industries Limited v. Union of India, (2007) 13 SCC 673 case, the Supreme Court explained the limits on delegated legislation by stating that though the Legislature has wide powers of delegation, it cannot delegate uncontrolled power and the same is confined by legislative policies and guidelines.
Delegated Legislation “Necessary Evil”
Criticism of Delegated Legislation:
The maxim potestas non potest delegari which means that a delegate cannot further delegates his power i.e. the power that has been delegated originally may not be redelegated. The main constitutional objection raised against delegation of rule-making power to administrative agencies has been the doctrine of the non-delegability of power, which holds that power delegated to one branch may not be re-delegated to another. People elect their representatives based on their fitness, knowledge, and ability to represent their interests. Hence, it is a generally accepted rule that this mandate bestowed by the people cannot be delegated to another individual or organ, which does not stand in direct relation to the people. The U.S. Supreme Court has observed that the doctrine of separation of power has been considered to be an essential principle underlying the constitution and that the powers entrusted to one department should be exercised exclusively by that department without encroaching upon the power of another. The criticism of delegated legislation is as follows:
- The delegated legislation enables authorities other than Legislation to make and amend laws thus resulting in overlapping of functions.
- It is subjected to less scrutiny and less parliamentary control and this can lead to inconsistencies in the law.
- It is against the spirit of democracy as too much-delegated legislation is made by unelected people.
- The law made by a statutory authority not notified to the public, hence the delegated legislation generally suffers from a lack of publicity.
Need of Delegated Legislation
- It enables the Government to make a law without having to wait for a new Act of Parliament to be passed.
- It saves time and avoids overloading of the Parliament. Parliament delegates the power by which 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. At the same time resources are also saved.
- 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. Thus delegated legislation allows law to be made by those who have the relevant expert knowledge.
- 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.
- Many times a situation arises that Parliament had not anticipated at the time it enacted the piece of legislation. In such situation delegated legislation can be used to cover the loopholes in the Act.
- It empowers the authority to modify or alter sanctions under a given statute or make technical changes relating to law.
- It enables the Government to meet the changing needs of society at the earliest.
In Arvinder Singh v. State of Punjab, AIR A1979 SC 321 case, Justice Krishna Iyer opined that the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to a start if they must directly and comprehensively handle legislative business in their plentitude, proliferation and particularization delegation of some part of legislative power becomes a compulsive necessity for viability.