Aditya Kumar Saraswat, Third year law student at Faculty of law, Aligarh Muslim University
Delegated legislation is an important aspect of the legal system that allows the government to create the detailed rules and regulations necessary to implement laws. It is the process by which the legislative branch delegates its own power to make laws to an administrative agency which is known as executive. This allows for effective law-making that can adapt to changing circumstances and specific situations. While delegated legislation has several advantages such as speed and efficiency, there are concerns about the lack of democratic oversight, transparency and accountability. This project will examine the nature and extent of delegated legislation, its advantages and disadvantages, the mechanisms put in place to control it and the implications of delegated legislation for the rule of law and democratic governance. By examining these questions, we can better understand the role of devolved legislation in our legal system and its impact on society.
Subordinate, secondary, or subsidiary legislation—all terms used to describe delegated legislation—refers to laws made by an executive authority using the authority provided to them by primary legislation. Implementing and enforcing the obligations of main legislation is the goal of delegated legislation.This type of legislation is authorized by the legislature, but it is not created by them. Without the legislature’s authorization, delegated legislation cannot be executed. Typically, the legislature establishes general guidelines and ethics through statutes and then delegates the power to the executive branch to create measures for implementing the substantive provisions of the statute. In simple terms, delegated legislation means that laws are created by an authority other than the sovereign power and depend on approval from a superior or omnipotent authority to remain valid. Legislation can be categorized into two types based on this concept.
- Fundamental / Essential legal function
- Ancillary / Incidental.
Laws produced through delegated legislation must align with the objectives outlined in the Act. It’s worth mentioning that assigning critical legal functions through delegation is unacceptable, and it falls under the category of excessive delegation. Therefore, when determining whether the delegation in question is excessive or not, two tests must always be taken into consideration:
- Whether there was a legislative policy laid or not.
- Whether essential legal function has been delegated or not
Significanceof delegated legislation:
There are several aspects contributing to the proliferation of delegated legislation in the modern independent nations. The responsibilities of a state go beyond maintaining public order, enforcing laws, and defending national borders. With the ever-increasing complexity of modern life, Union and State governments lack the time and knowledge to handle practical and circumstantial intricacies which arise. In such circumstances, delegated legislation serves as a means of anticipating and addressing unpredictable and unknown situations. It has become an essential and indispensable part of modern administration.
Managing the daily lives of citizens, overseeing the socio-economic development of the country, and striving for a democratically socialistic pattern of government, which has been a goal since independence, requires enormous organization and administration of several projects, particularly private trade& commerce. These conditions generate breaks which can only be covered by a non-decreasing amount of legislation. The resulting demand for laws places tremendous pressure on the Legislature, which not only enacts laws but also supervises the Government, engages in policy discussions, addresses public grievances, and more. Delegated legislation helps to economize the legislative time of the legislature.
In Agricultural Marketing Committee v. Shalimar Chemical Works Ltd., the Apex court outlined the main motives for delegating legislative power to the government.
- One reason is that the area in which the power is delegated may be technically complex, making it difficult to cover all possible scenarios in the statute.
- Another reason is that the government may need to experiment and fill in details to understand how the original legislation is working.
- Lastly, delegating power to the government can be advantageous as it allows them to pass basic legislation and later fill in the particulars through the creation of instructions and regulations, particularly when the government is under pressure to meet legislative deadlines.
Historical developmentin India:
The Charter Act of 1833, which was passed after the East India Company recovered political clout in India, is where the idea of delegation of authority first emerged. This act gave the Governor-General-in-Council sole administrative authority. This governing official had the authority to enact laws and regulations for the repeal or amendment of any statute or rule that applied to everyone, regardless of nationality.In the year of 1935, the Government of India Act was approved, that included an important scheme regarding delegation. This was due to the need for the assignment of power and the employment of legislation, which was deemed important in India.
The Indian Constitution has nearly four hundred Articles, and it is not shocking that the authors of it created provisions to address this issue. However, why were such provisions added to the constitution? That was due to the propensity of representatives in the Constituent Assembly to create numerous legislative designs. Comparing to other main constitutional matters which were not addressed by the Meeting and were left to future arrangement or court’s interpretation, such matters remained of minor importance in terms of legal formulation.
Constitutionality of delegated legislation:
The Indian Constitution does not explicitly mention the concept of delegated legislation, but it can be inferred through the interpretation of the Article 312. This article empowers the Rajya Sabha the power to create a freshdivision of All India Service with a 2/3rdmajority’s vote, which implies the delegation of legislative powers to new appointee of the All-India Service. There are several case laws that shed light on delegated legislation underneath the Indian Constitution, some are:
- Queen v. Burah: The Privy Council recognized legislation that was conditional and believed that delegated legislation was not permitted. The Lieutenant-Governor appointed officers to administer civil and criminal justice in the area, as stated in following sections of the Act.
- “Section 8. The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his government, or which may hereafter be enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom any powers of duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation.”
- “Section 9- The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India.”
The Privy Council ruled that Indian legislators possess complete powers and exercise them independently, not as a representative of the British parliament. The Council contends that it is improper to assign vital legislative duties that ought to be carried out by the legislature itself to a subordinate agency that will help create rules and regulations that will become part of the legislation.The essential legislative function involves determining the legislative policy and implementing it in acompulsory law.
- Kingv. Benoari Lal Sharma: The Privy Council applied the idea of conditional legislation once more, where the legitimacy of an emergency order issued by the Governor-General was challenged. The legislation called for the creation of specialised criminal courts to handle certain offences, but it left it up to the provincial governments to decide how to actually set up the courts.The challenge was based on the argument that this arrangement amounted to delegated legislation. Nonetheless, the Privy Council’s Judicial Committee dismissed this claim, contending that it was not delegated legislation but rather an instance of a typical legislative authority where a local administrative body is entrusted with deciding the applicability of a statute’s provisions based on necessity. The Privy Council underlined that the local administrative body’s judgment is crucial in determining the local applicability of a state’s provisions.
- Jatindra Nath v State of Bihar, The Federal Court holds that the ability to prolong with modification is illegal since legislative authority cannot be transferred. The Bihar Preservation of Public Order Act, 1948’s Section 1(3), which gave the province government the authority to extend and modify, was contested in the current case. Nonetheless, this situation brought up questions about the limits of delegation.
- Raj Narain Singh v. Chairman Patna Administration committee: The local government was given the authority to apply the sections of the Bengal Municipality Act, 1884 to Patna with the necessary adjustments under Section 3(1)(f) of the Bihar & Orissa Act.However, a challenge was raised against this provision, and the government decided to apply Section 104 of the Act, with changes, to Patna. This Act contained a crucial provision that required inhabitants to have an opportunity to voice their objections before a municipality with the power to tax was imposed on their locality. Unfortunately, the sections that provided this opportunity were excluded from the notification, which was deemed to undermine the Act’s fundamental policy. This exclusion prevented people from exercising their right to be heard and object to the imposition of taxes by the municipality.
- Panama Refining Co. v. Rayan: Section 9(c) of the National Industrial Recovery Act in 1933 granted the United States President the authority to issue orders that could be enforced through penal provisions. The President utilized this power to prohibit certain actions, delegating the authority to the Secretary to Interior from exercising his powers under Section 9(c) of the same Act. In turn, the Secretary passed regulations to implement orders of the President. However, the constitutionality of the Section was challenged on the grounds that Congress had unconstitutionally delegated its legislative power to the President. The Apex Court of the USA ultimately held that such delegation of legislative power by Congress to the Executive branch is only valid if two conditions are met: First, the statute must lay down policies, and second, it must establish standards and limits within which the administration can make subordinate rules.
- State of Sikkim v. Surendra Sharma: The Directorate of Survey and Settlement of the Government of Sikkim advertised a number of temporary positions after Sikkim joined the Union of India, and the respondent was chosen for one of them along with other applicants.However, some non-local employees were terminated after the survey work was completed. In 1982, these employees applied for a writ petition in Sikkim’s High Court, objecting to their dismissal from service because they were not locals. The judge ruled that dismissing them on this ground was not permissible under Articles 14 and 16 of Indian Constitution, that provide for equality beforelaw and equal opportunities in public employment. The court decided that any rule issued as a result of the authority conferred by Article 371F subclause (k) was subordinate legislation. The 36th Constitutional Amendment Act allowed for the insertion of this article into the Constitution.
- HinsaVirodhak Sangh v. Mirzapur Moti KureshJamat: The court can only declare an act unconstitutional if there is clear evidence of a violation of constitutional provisions beyond any reasonable doubt.When the parent act is lawful or constitutional, the delegated legislation may be unconstitutional.This can occur if the delegated legislation struggles with the fundamental rights provided by the constitution.
- Dwarka Prasad Laxmi Narainv. State of Uttar Pradesh: It was decided that some provisions of the U.P. Control Order, 1953, which was made in accordance with section 3(2) of the Essential Supplies Act, 1946, violated the constitution’s Article 19(g). This fundamental right promises all citizens the ability to practice any occupation, trade, or business. As a result, these provisions were declared ultra vires, or beyond the authority of the law.
- Air India v. NergeshMeerza: The Indian Constitution’s Article 14 was violated, according to the Apex Court, by a number of norms governing how air hostesses work for government-run airline Air India. Equal protection under the law and equality before the law are guaranteed by this article for all Indian citizens. These rules were therefore ruled to be unconstitutional.
In conclusion, delegated legislation has emerged as an essential tool for governments to efficiently and effectively manage the complex legal and regulatory landscape of modern societies. India has a long and rich history of delegated legislation, which has evolved significantly over time, from early colonial-era regulations to the modern-day system governed by various statutes and rules.
While delegated legislation has proven to be an effective means of ensuring efficient governance, there have been concerns about its constitutionality and accountability. The Indian Constitution has provided for adequate safeguards and control mechanisms to ensure that delegated legislation remains within the constitutional framework and is not misused or abused by the executive.
Overall, it is important to recognize that delegated legislation plays a vital role in modern governance, and that it must be carefully balanced against constitutional safeguards to ensure that it serves the public interest and does not infringe upon individual rights and freedoms. As India continues to evolve and modernize, delegated legislation will surelyendure to play an important part in shaping the country’s legal and regulatory scene.
- Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson, Theory of Legislative Delegation, 68 Cornell L. Rev. 1 (1982) Available at: http://scholarship.law.cornell.edu/clr/vol68/iss1/1
- Srivastava, Ashish, The Notion of Delegated Legislation in India- A Critical Analysis, Scholars International Journal of Law, Crime and Justice
- Iancu, Bogdan, Legislative Delegation – The Erosion of Normative Limits in Modern Constitutionalism, Springer (2012)
- Swarnim, Pankhuri, Judicial, Legislative and Other Controls over Delegated Legislation in India, International Journal of Law Management & Humanities, volume 3, 2020
- Feldman, David. English Public Law. 3rd ed., Oxford University Press, 2018.
- Shapiro, Martin. Who Guards the Guardians? Judicial Control of Administration. 3rd ed., Sweet & Maxwell, 2013.
- Vora, Kintu. “The Constitutional Validity of Delegated Legislation in India.” NUJS Law Review, vol. 9, no. 1, 2016, pp. 37-61.
- Gupta, Om Prakash. “Judicial Control over Delegated Legislation in India: An Analysis.” The Indian Journal of Political Science, vol. 69, no. 4, 2008, pp. 1017-1034.
- MP Jain and SN Jain, Principles of Administrative Law 42 (2013)
- Cooley’s Constitutional Limitations, Volume I at page 224
- Delegated Legislation, Drishti IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/delegated-legislation (accessed 5 April 2023)
- Delegated legislation in India, Blog IPleaders, https://blog.ipleaders.in/delegated-legislation-in-india/ (accessed 5 April 2023)
- Delegated Legislation, Clear IAS, https://www.clearias.com/delegated-legislation/ (accessed 5 April 2023)
- SC demonetisation verdict: What is delegated legislation, Indian Express, https://indianexpress.com/article/explained/sc-demonetisation-verdict-what-is-delegated-legislation-8373315/ (accessed 5 April 2023)
Constitutional Limitations of Cooley, Volume I at page 224
 MP Jain and SN Jain, Principles of Administrative Law (2013)
Registrar, Co-operative Societies v. Kunjubmu AIR 1980 SC 350
Jain, Indian Constitutional Law, 7th Edition
 AIR 1997 SC 2502 at 2507
State of Rajasthan v. Basant Nahata AIR 2005 SC 3401
 (1878) ILR 3 Cal 64
 (1945) 47 BOMLR 260
 AIR 1949 FC 175
 1954 AIR 569
 293 U.S. 388
1994 AIR 2342
(2008) 5 SCC 33
AIR 1954 SC 224
AIR 1981 SC 1829