Author: Shrankhala Parwar, School of Law, DAVV, Indore.
What is Delegated Legislation?
The Constitution of Indian empowers Legislature to make laws for the country. One of the significant legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously such powers cannot be conferred on other institutions. But keeping in mind various multifarious activities of a welfare State, it is not possible for the legislature to perform all the functions. In such a situation, the delegated legislation comes into the picture. Delegated Legislature is one of the essential elements of administration whereby the executive has to perform certain legislative functions. However, one must not forget the risk associated with the process of delegation. Very often, an overburdened Legislature may unduly exceed the limits of delegation. It may not lay down any policy; it may declare any of its policy as vague and may set down any guidelines for the executive thereby conferring wide discretion to the executive to change or modify any policy framed by it without reserving for itself any control over subordinate legislation. Therefore, even though Legislature can delegate some of its functions, it must not lose its control completely over such functions.
Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation or subsidiary legislation) is a process by which the executive authority is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature’s authority. Although Justice Mukherjea once observed that the words delegated legislation to cover “ a multitude of problems”, the term can indeed be explained in simple language thus: if the function of legislation is delegated or entrusted to any organ of the government other than the legislature, such delegation being by the legislature itself, the resulting legislation made by the non-legislative organ is called delegated legislation. According to Salmond, legislation is of two types: supreme and subordinate. When the legislation proceeds from a supreme or sovereign legislature- like the parliament of India- it is called supreme legislation. Delegated legislation is thus legislation made by a person or body of persons other than the sovereign legislature by virtue of powers conferred by the legislature.
NEED FOR DELEGATED LEGISLATION AND REASONS FOR IT’s GROWTH
● Technical Issues Members of parliament, not being experts in technical term matters, cannot be expected to legislate on technical issues where the assistance of experts is required. MPs may be the best politicians – but certainly not the experts required.
● Complexity of the modern state As observed by the supreme court, however much one may like to deplore the ‘ new despotism’ of the modern executive , the complexity of the modern society and the demands it makes on the government has set in the modern forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executives .
● PRESSURE ON PARLIAMENTARY TIME The bulk of modern legislation is so heavy that today’s legislature finds it difficult, if not impossible, to devote sufficient time for the detailed discussions on all matters. One cannot even imagine more than 500 Hon’ble Members of the Lok Sabha trying to focus on every minisule legislative detail before the House passes an Act.
● Flexibility When the legislature passes a statute, it is almost impossible to foresee all the contingencies which may arise in the future in the practical application of such a law. Of course, it is possible to amend the statute as and when the need arises. However, this is a slow and cumbersome process. In such a situation, delegated legislation allows the executive to overcome practical difficulties by exercising the power conferred on it by the parent act.
● Emergency There is a lot of scope for experimentation in the administrative process. The administrative authorities can frame a new rule, try it out for some time, and if found unsuitable or unsatisfactory or unworkable, may modify or even repeal it without much formality.
● Emergency situations Quick action is needed in times of emergencies like war, internal disturbances, floods, epidemics, strikes, lock-outs, bandhs, etc. the lengthy legislation process is just not suited for such situations and if the executive is armed with special powers, the situation can be kept under control.
ADVANTAGES AND DISADVANTAGES OF DELEGATED LEGISLATION
● Technical issues
● Pressure on parliamentary time
● Emergency situations
● A better understanding of ground realities
● Control over administration authorities – in the absence of rules and regulations, administrative authorities may enjoy wide and uncontrolled discretion. It is 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 into effect.
● No parliamentary deliberation – Parliament does not get a chance to debate rules, regulations, etc. made by the executive. These are made in the ante-chamber of the bureaucrat and the benefits of parliamentary deliberations are lost.
● No prior publicity- Whereas drafts of Bills are often published for public comment and criticism, prior publicity is not always possible in case of rules and regulations and the benefits of public discussion are criticism is lost.
● Not enough publicity- Everyone is supposed to know the law because statutes are, generally speaking, easily accessible. This is not so in the case of delegated legislation, where the mass of rules, regulations, bye-laws, orders, etc. often lie buried in the files of bureaucrats. Antecedent publicity, that is, publicity before enactment is often missing in delegated legislation.
● Lesser research- Since statutes are normally given greater publicity than rules and regulations, the former can reach out to a greater number of citizens.
● Possibility of overreach and or overlapping – As delegated legislation can often be confusing, complex and difficult to understand. Moreover, it can be different (and at times, contradictory) in different states, thus leading to confusion and lack of uniformity.
● Possibility of poor drafting – Delegated legislation may not be well considered or drafted by legislative experts and may thus suffer from infirmities due to poor drafting.
● Possibility of confusion- Experiences show that delegated legislation can often be confusing, complex and difficult to understand. Moreover, it can be different (and at times, contradictory) in different states, thus leading to confusion and lack of uniformity.
CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION IN INDIA
The Constitution of India gives powers to the Legislature to delegate its functions to other authorities, to frame the policies to carry out the laws made by it. In the case of D. S. Gerewal v. State of Punjab, the Supreme Court held that Article 312 of the Constitution of 2 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.
The phrase “ Parliament may by law provide ” in Article 312 should not be interpreted to mean that there is no scope for delegation in law made under Article312… The England law enables the Parliament to delegate any amount of powers without any limitation. On the other hand in America, like India, Congress can delegate only some of its functions. Thus, it does not have unlimited or uncontrolled powers. Thus, India allows for delegated legislation but in a defined and controlled manner with certain restrictions.
In Re Delhi Laws Act, 1912, The president of India made a reference to the Supreme Court, 3 which was heard by a bench of seven judges, each of whom wrote a separate opinion. The basic question raised before the court was the validity of the part c state(Laws) Act, 1950. In this landmark decision, the Supreme Court puts a stamp of approval over delegated legislation and at the same time, it laid down its permissible limits.
Maharashtra State Board of Secondary and Higher Education v Panitosh Bhupesh Kumar Seth says Legislature and its delegate should determine as to how the provisions of a statute can best be implemented and what measures substantive as well as procedural would have to be incorporated
Vice-Chancellor, M D University, Rohtak v Jahan Singh, If the law does not provide for it, administrative authority cannot give delegated legislation any retrospective effect.
CONTROL OVER DELEGATED LEGISLATION
#1: Parliamentary Safeguards:
● Parliament has various Committees (like Public accounts Committee, departmental standing Committees). Similarly, there is one Committee on Subordinate Legislation. It carries out detailed scrutiny of all the rules framed by the executives through delegated legislation.
● The committee then submits its report to the speaker of the Lok Sabha. A copy also tabled in Rajya Sabha.
● If executives make some mischief in law-making, parliament / SLA can always override it. Delegated legislation is meant to save the time of legislators without undermining their responsibility.
#2: Judicial Safeguards: Judiciary can declare a delegated legislative acts as “invalid” if,
1. The parent act (enabling act) itself is ultra vires (against the Constitution). 2. The provisions of subordinate legislation violate the Constitution 3. Subordinate legislation is moving in a different direction than the parent act (enabling act).
There are several reasons why delegated legislation is important.
● Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time-consuming. Changes can, therefore, be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.
● Secondly, delegated legislation allows the law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament.
● Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation.
● Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is, therefore, able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.
Delegated legislation is not without its criticisms.
● Firstly, it has been suggested that by having delegated legislation to make and/or amend laws, etc it lacks democracy as too much-delegated legislation is made by unelected people.
● Secondly, delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament, therefore, has a lack of control over delegated legislation and this can lead to inconsistencies in-laws. In addition, delegated legislation, therefore, has the potential to be used in ways that Parliament had not anticipated when it conferred the power through the Act of Parliament.
● One further criticism of delegated legislation is the lack of publicity surrounding it. When a law is made by the statutory instrument the public is not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely published. One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this results in the public not being informed of the changes to the law.
● There has also been concern expressed that too much law is made through delegated legislation.
In the end, we can conclude that the delegated legislation is important in the wake of the rise in the number of legislations and technicalities involved. But at the same time with the rise in delegated legislation, the need to control it also arises because the increase in the delegation of power also increases the chance of the abuse of power. The judicial control apart from the legislative and procedural control is the way how the delegation of power can be controlled. Thus, the delegated legislation can be questioned on the grounds of substantive ultra vires and on the ground of the constitutionality of the parent act and the delegated legislation. The latter can also be challenged on the ground of its being unreasonable and arbitrary.
Sitaram v. State of UP, AIR 1972 SC 1168