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DELEGATED LEGISLATION

Introduction
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 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; 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.
Meaning
Delegated legislation (sometimes referred 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 legislatures authority.
Legislation by any statutory authority or local or other body other than the Legislature
but under the authority of the competent legislature is called Delegated legislation. It is
legislation made by a person or body other than Parliament. Parliament thereby,
through primary legislation, enables others to make law and rules through a process of
delegated legislation.
Need For Delegated Legislation
The process of delegated legislation enables the Government to make a law without
having to wait for a new Act of Parliament to be passed. Further, delegated legislation
empowers the authority to modify or alter sanctions under a given statute or make
technical changes relating to law. Delegated legislation plays a very important role in the
process of making of law as there is more delegated legislation each year than there

are Acts of Parliament. In addition, delegated legislation has the same legal standing as
the Act of Parliament from which it was created.
Delegated Legislation is important because of several reasons. They are1. Delegated Legislation reduces the burden of already overburdened Legislature by
enabling the executive to make or alter the law under the authority of Legislature.
Thus, this helps the Legislature to concentrate on more important matters and frame
policies regarding it.
2. It allows the law to be made by those who have the required knowledge and
experience. For instance, a local authority can be permitted to enact laws with
respect to their locality taking into account the local needs instead of making law
across the board which may not suit their particular area.
3. The process of delegated legislation also plays a significant role in an emergency
situation since there is no need to wait for particular Act to be passed through
Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting 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: Position under Constitution of 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 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, the 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.

Safeguards

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. A copy also tabled in Rajya Sabha.
If executives make some mischief in law making, parliament / SLA can always
over ride 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
i) The parent act (enabling act) itself is ultra vires (against the Constitution).
ii) The provisions of subordinate legislation violates the Constitution
iii) Subordinate legislation is moving in a different direction than the parent act
(enabling act).

Limitations on Delegated Legislation


1. The Legislature cannot delegate Essential Legislative Functions which consist in
the determination or choosing of the Legislative Policy and of formally enacting
that policy into a binding rule of conduct. Justice Cardozo famously stated that
the Legislature cannot delegate uncanalized and uncontrolled power, the power
delegated must not be unconfined and vagrant, but must be canalized within
banks that keep it from overflowing.
2. Thus what is permitted is the delegation of ancillary or subordinate legislative
functions or a power to fill up the details.
3. Whether any particular legislation suffers from Excessive Delegation has to be
decided by courts having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble, and the facts and circumstances
in the background of which the statute is enacted.
4. Essential Legislative Functions include the power to repeal or modify a law and
cannot be delegated.
5. In the absence of an express or implied power to that effect, Delegated
Legislation, be it a rule, bye-law or a notification, cannot have retrospective
operation.
6. A power to Tax or levy any fee cannot be inferred from mere generality of the
powers conferred by the enabling enactment. Such power of imposition of tax or

fee by Delegated Authority must be very specific and there is no scope of implied
authority for imposition of such tax or fee.
7. One of the important conditions prescribed under Section 23 of the General
Clauses Act, 1897 is that the authority having power to make the rules or byelaws shall, before making them, must publish a draft of the proposed rules or
bye-laws for the information of person likely to be affected thereby.
8. Where the delegating statute itself is ultra vires to the Constitution of India, the
rules made under such statute are also unconstitutional.
9. The power to modify the parent statute is limited to bringing about consequential
changes and cannot be exercised to subvert the policy laid down by the
legislature. No radical changes in the enacted law is permitted.
10. The legislature is the master of policy and if the delegate is free to switch policy it
may be usurpation of legislative power itself.
11. Delegated Legislation may also be declared invalid on the following grounds:
a) Violation of the Constitution of the India.
b) Violation of the Enabling Act.
c) Violation of Principles of Natural Justice when the Statute itself provides of
such requirement.

Criticism Of Delegated Legislation


Delegated legislation apart from having many advantages is criticized on many
grounds It is argued that delegated legislation enables authorities other than Legislation to
make and amend laws thus resulting in overlapping of functions.
It against the spirit of democracy as too much-delegated legislation is made by
unelected people.
Delegated legislation 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. Delegated legislation, therefore, has
the potential to be used in ways which Parliament had not anticipated when it
conferred the power through the Act of Parliament.
Delegated legislation generally suffers from a lack of publicity. Since the law
made by a statutory authority not notified to the public. On the other hand, the
laws of the Parliament are widely publicised. The reason behind the lack of
publicity is the large extent of legislation that is being delegated. There has also
been concern expressed that too much law is made through delegated
legislation.

The argument that politicians lack technical expertise is hollow because even
executives (bureaucrats) are not expert on all technical matters, theyd need to
consult the experts in the respective field (e.g. medicine, IT, economics etc.)
Government (and its Bureaucrats) often make provisions under delegated
legislation that it becomes difficult and cumbersome for common man to seek
remedy even in the courts. For example, in 1999, Department of
Telecommunications had issued a notification under the TRAI Act that if there is
any dispute between licensee (company) vs Government, then only Government
can make reference to TRAI. (Meaning company cannot directly approach TRAI
in case of telecom related dispute.) this is a blatant misuse of delegated
legislative powers.
Law making power in the hands of executive = curtails individual liberty, leads to
arbitrariness and injustice.
sometimes even tax related laws are also delegated, it goes against the principle
of no taxation without representation.
Administrators dont consult common people even while making laws that affect
their lives.
Delegated legislation will decrease the control of legislature over executives.
The constitution entrusts the duty of law making to the parliament and the various
state legislatures. They cannot betray the trust and transfer this duty to some
other authority.
In the name of technical law making by executive sometimes even basic or those
that can be made by the legislature.
The executive is unconnected with the people and thus they would not take into
account a lot of substantive interests of people. Theyre more focused on
technicalities of implementation or whatever serves their interest. (e.g. presently
under R.T.I act, the bureaucracy must give information within 30 days. But if the
same R.T.I law making was delegated to them, theyd have given deadline of 90
days instead of 30 days!)
Parliament does not have adequate facilities to scrutinize every piece and
section of delegated legislation. (The parliamentary committee on subordinate
legislation is not a Committee of technical experts. hence lacks the acumen to
check.) this turn delegated legislation into one form of despotism.

Conclusion
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 with 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.