DELEGATED

LEGISLATION
SUBMITED TO:
DR. VIRENDER SINDHU

SUBMITED BY:
RITU DUBEY
ROLL NO 255 (section-c)
LL.B: 3RD SEMESTER (3 year)

UNIVERSITY INSTITUTE OF LEGAL & MANAGEMENT STUDIES

SECTOR - 40, GURGAON

CONTENTS
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Introduction
Meaning of delegated legislation
Nature and scope
Need for delegated legislation
Advantages and Disadvantages
Judicial control and Legislative control
Types of Delegated legislation
Conclusion
Bibliography

INTRODUCTION
Administrative law is the bye-product of the increasing socio-economic functions of the
State and the increased powers of the government. Administrative law as a separate branch
of legal discipline, especially in India, came to be recognized by the middle of the 20th
century. Today the administration is ubiquitous and impinges freely and deeply on every
aspect of an individuals life. Therefore, administrative law has become a major area for
study and research. Administrative Law has been characterized as the most outstanding
legal development of the 20th century. Administrative Law is that branch of the law, which
is concerned, with the composition of powers, duties, rights and liabilities of the various
organs of the government

The issue of delegated legislation has been one of the most debated issues in the domain of legal
theory because of its various implications. Scholars have consistently presented differing and
even contradicting views about delegation of power to legislate and have thus taken different
stands on the issue. While Delegated Legislation has been a widespread practice in modern
times and is almost an accepted norm, there have been contrary views. For instance Cooley has
expressed a staunchly critical view of the power to delegate. He has stated that "One of the
settled maxims in constitutional law is that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body or authority. Where the sovereign
power of the State has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself
of the responsibility by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which
alone the people have seen fit to confide this sovereign trust. Further ha has also observed that
"No legislative body can delegate to another department of the government, or to any other
authority, the power, either generally or specially, to enact laws. The reason is found in the very
existence of its own powers. This high prerogative has been entrusted to its own wisdom,
judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it
undertakes to delegate the trust, instead of executing it. While such positions do raise the
questions about the propriety of delegating the power to legislate by higher legislative bodies to
the lower ones, the fact remains that this has been a general practice followed in all modern
democratic countries. Hence it is important to understand what is firstly meant by delegated
legislation and then analyze its various aspects.

Meaning of Delegated Legislation

Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the legislature's
authority. Often, a legislature passes statutes that set out broad outlines and principles, and
delegates authority to an executive branch official to issue delegated legislation that flesh out the
details (substantive regulations) and provide procedures for implementing the substantive
provisions of the statute and substantive regulations (procedural regulations). Delegated
legislation can also be changed faster than primary legislation so legislatures can delegate issues
that may need to be fine-tuned through experience. Legislation by the executive branch or a
statutory authority or local or other body under the authority of the competent legislature is
called Delegated legislation. It permits the bodies 1 Cooley's Constitutional Limitations, Volume
I at page 224 2 Cooley Constitutional Law 4th Edition, page 138 2 beneath parliament to pass
their own legislation .It is legislation made by a person or body other than Parliament.
Parliament, through an Act of Parliament, can permit another person or body to make
legislation. An Act of Parliament creates the framework of a particular law and tends only to
contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be
delegated it enables other persons or bodies to provide more detail to an Act of Parliament.
Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to
make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without having to wait for a
new Act of Parliament to be passed. Further, delegated legislation can be used to make technical
changes to the law, such as altering sanctions under a given statute. Also, by way of an example,
a Local Authority have power given to them under certain statutes to allow them to make
delegated legislation and to make law which suits their area. Delegated legislation provides a
very important role in the making of law as there is more delegated legislation enacted 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. 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 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. A portion of
law-making power of the legislative is conferred or bestowed upon a subordinate authority.
Rules & regulations which are to be framed by the latter constitutes an integral portion of the
statute itself. It is within power of parliament when legislating within its legislative few, to
confer suborbital administrative & legislative powers upon some other authority. Subordinate
legislation, is the legislation made by an authority subordinate to the sovereign authority,
namely, the legislature. According to Sir John Salmond, "Subordinate legislation is that which
proceeds from any authority other than the sovereign power and is, therefore, dependent for its
continued existence and validity on some superior or supreme authority." Most of the
enactments provide for the powers for making rules, regulations, by-laws or other statutory
instruments which are exercised by specified subordinate authorities. Such legislation is to be
made within the framework of the powers so delegated by the legislature and 3 is, therefore,
known as delegated legislation. Thus all law making which takes place outside the legislature
expressed as rules, regulations, bye laws, orders, schemes, directions or notifications etc. is
termed as delegated legislation.

Nature and Scope of delegated legislation

Delegated legislation means legislation by authorities other than the Legislature, the former
acting on express delegated authority and power from the later.
Delegation is considered to be a sound basis for administrative efficiency and it does not by
itself amount to abdication of power if restored to within proper limits. The delegation should
not, in any case, be unguided and uncontrolled.

Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects
which is to be exercised by them. It is only a nonessential legislative function that can be
delegated and the moot point always lies in the line of demarcation between the essential and
nonessential legislative functions.
The essential legislative functions consist in making a law. It is to the legislature to formulate
the legislative policy and delegate the formulation of details in implementing that policy.
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make notifications and
alterations in an Act while extending it and to effect amendments or repeals in the existing laws
is subject to the condition precedent that essential legislative functions cannot be delegated
authority cannot be precisely defined and each case has to be considered in its setting.
In order to avoid the dangers, the scope of delegation is strictly circumscribed by the Legislature
by providing for adequate safeguards, controls and appeals against the executive orders and
decisions.
The power delegated to the Executive to modify any provisions of an Act by an order must be
within the framework of the Act giving such power. The power to make such a modification no
doubt, implies certain amount of discretion but it is a power to be exercised in aid of the
legislative policy of the Act and cannot
Travel beyond it, or
Run counter to it, or
Certainly change the essential features, the identity, structure or the policy of the Act.
Under the constitution of India, articles 245 and 246 provide that the legislative powers shall be
discharged by the Parliament and State legislature. The delegation of legislative power was
conceived to be inevitable and therefore it was not prohibited in the constitution. Further,
Articles 13(3) (a) of
The Constitution of India lays down that law includes any ordinances, order by-law, rule
regulation, notification, etc. Which if found in violation of fundamental rights would be void.
Besides, there are number of judicial pronouncements by the courts where they have justified
delegated legislation. For e.g.

CASE: In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv.
State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K
4.
While commenting on indispensability of delegated legislation Justice Krishna Iyer has rightly
observed in the case of Arvinder Singh v. State of Punjab, AIRA1979 SC 321, 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.

A provision in a statute which gives an express power to the Executive to amend or repeal any
existing law is described in England as Henry viii Clause because the King came to exercise
power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in
India some traces of it are found here and there, for example, Article 372 of the Constitution
authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such
adaptations and modifications, (whether by way of repeal or amendment) so as to bring them in
accord with the provisions of the Constitution. The State Reorganization Act, 1956 and some
other Acts similar thereto also contain such a provision. So long as the modification of a
provision of statute by the Executive is innocuous and immaterial and does not affect any
essential change in the matter.

The Need for Delegated Legislation

Delegated legislation is necessary for a number of reasons: parliament does not have time
to contemplate and debate every small detail of complex regulations, as it only has a
limited amount of time to pass legislation, delegating legislation will allow however
thoroughly debated regulations to pass through as well as saving parliamentary time.
Delegating legislation allows law to be made more quickly than parliament, which is vital
for times of emergency. Parliament takes longer as it does not sit all the time and its
procedures is generally quite slow and complex due to the several stages each bill has to
pass through. Delegated legislation can also be amended or revoked relatively easily, so

that the law can be kept up to date and so that the law can meet future needs that arise
such as areas concerning welfare benefits, illustrating a great deal of flexibility in the
system. Otherwise statutes can only be amended or revoked by another complicated and
time-consuming statute.
MPs do not usually have the technical knowledge/expertise required in for example
drawing up laws on controlling technology, ensuring environmental safety, and dealing
with different industrial problems or operating complex taxation schemes whereas
delegated legislation can use experts who are familiar with the relevant areas. Jacqueline
Martin has suggested instead for parliament to debate the main principles thoroughly,
but leave the detail to be filled in by those who have expert knowledge of it.
Another argument for the need of delegated legislation is that parliament may not always
be the best institution to recognise and deal with the needs of local people. As a result
local people elect councillors from certain districts and it is their responsibility to pass
legislation in the form of by-laws to satisfy local needs.

Advantages of Delegated Legislation

Saves limited time in Parliament;
Allow rapid change;
MPs lack detailed or technical knowledge. E.g. Specific details in Abortion Act, Road
Traffic detail
Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of
Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited
groups.
Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle
changes.
Judicial review may be sought, by parties with locus standi (i.e. Persons sufficiently
affected by the legislation), so time is not wasted by Parliament considering them all.
Model bylaws available from Whitehall.
Withdrawal or amendment easy.

Disadvantages of Delegated Legislation

Implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing
legislation properly.
Sub-delegation of powers a further problem which causes complexity and confusion.
Sheer volume causes complexity - it is impossible for anyone to keep abreast of all
delegated legislation.
Lack of publicity, not known about by the public (and often lawyers).
It is undemocratic as most regulations are made by civil servant or other unelected people,
except for local authority bylaws made by elected councillors

Control Over Delegated Legislation

Delegated legislation is controlled by the Legislative and the Judiciary. Overall, the Parliament
has control along with statutory committees who take into account the delegated powers made
by a Bill. Using the negative resolution procedure statutory instruments can become legislation
in either two ways. One of the ways it commences is when after the statutory instruments is
written, it is shown to Parliament. However, if after forty days there are no counter arguments it
instantly becomes law, if there is some concern then it is debated upon. The other procedure is
more oppressive as the Parliament does not amend any statutory instruments in fact only one out
of ten instruments are passed under this procedure. This is because this situation has to be
debated upon and by both Houses within twenty-eight to forty days. There are disadvantages to
this as it may take longer for Parliament to raise any issues especially from other parties. In
reality, its highly unlikely for the Government not to reach a majority when so many votes are
taken into account.
The Joints Committee gas control over statutory instruments paying attention to delegated
legislation being created. Special further consideration is made before the committee step of the
Bill and is reported to each House. If though the committee does not consider the virtues of
delegated legislation, it is then the House of Lords Merits of statutory instruments committees
responsibility. With both procedures time is an important issue and in this case a huge
disadvantage of the Joints Committee is that the committee may not even get discussing any
legislation. However, advantages of the affirmative resolution procedure includes attracting the
publics view and opinions, allows both Houses to advocate and is put before the parliament.
There are two grounds of ultra vires procedure, the definition ultra vires refers to beyond the
powers there are two types, procedural and substantive.

Types Of Delegated Legislative

Excessive Delegation
According to the doctrine of excessive delegation, if the legislature excessively delegates its
legislative function to any other authority, such delegation will be held unconstitutional. This
doctrine fulfils two objectives: first, it ensures democratic accountability in the laws through
which the people are governed and, second, minimum delegation provides the courts with some
discernible standard to judge if the rule/regulation is ultra vires the parent statute.

Permissible and impermissible delegation

There are two modes of permissible delegation. In America they are known as contingent and
subordinate.
Similarly in India also there are two types of delegated legislation, viz., conditional and
subordinate. In India, conditional legislation represents nearly the same idea as contingent
legislation in America. Therefore, a definition of contingent will help in understanding the
meaning of conditional.
Contingent legislation is defined as a statute that provides control but specifies that they are to
come into effect only when a given administrative authority finds the existence of conditions
defined in the statute. In subordinate legislation, on the other hand, the process consists of a
discretionary elaboration of rules and regulations.
The distinction between the two types of permissible delegation is said to be based on the point
of discretion. In contingent or conditional legislation, delegation is of fact- finding. In
subordinate legislation the delegation is of discretion. All this means that by delegated or
subordinate legislation the delegate completes the legislation by supplying details within the
limits prescribed by the statute and in the case of conditional legislation the power of legislation
is exercised by the legislature conditionally leaving to the discretion of an external authority the
time and manner of carrying the legislation into effect as also the determination of the area to
which it is to extend.

There is no specific bar in our constitution against the delegation of legislative power by the
legislature to the executive. However, it is now well settled that essential legislative functions
cannot be delegated by the legislature to the executive. It means that the legislative policy must
be laid down by the legislature itself and by entrusting this power to the executive, the
legislature cannot create a parallel legislature. Delegation of legislative power cannot amount to
abdication of essential legislative functions.

Conditional delegation
Conditional delegation may be defined as a statute that provides control but specifies that they
are to go into effect only when a given administrative authority finds the existence of conditions
defined in the statute
Such Legislation is usually complete in itself but its operation is made to depend on fulfilment
of certain conditions and what is delegated to an outside authority, is the power to determine
according to its own judgment whether those conditions are fulfilled.

Sub- Delegation
When a statute confers legislative powers on an administrative authority and that authority
further delegates those powers to another subordinate authority or agency, it is called subdelegation.
Thus, what happens in sub- delegation is that a delegate further delegates. This process of subdelegation may go through one stage to another stage. if enabling act is called the parent and
the delegated and sub-delegated legislation the children, the parent in his own life time may
beget descendants up to four or five de

Conclusion
Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate its
power to other bodies or persons. The statute which delegates such power is known as Enabling
Act. By Enabling Act the legislature, lays down the broad guidelines and detailed rules are
enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution.
It exists in form of bye rules, regulations, orders, bye laws etc. There are many factors
responsible for its increase: Parliament and State Legislature are too busy to deal with the
increasing mass of legislations, which are necessary to regulate daily affairs. Modern legislation
requires technicality and expertise knowledge of problems of various fields, our legislators, who
are politicians are not expected to have such knowledge. Subordinate legislations are more
flexible, quickly and easily amendable and revocable than ordinary legislation, in case of failure
or defect in its application. When contingencies arise which were not forceable at the time of
making it, subordinate legislation can pass an act quickly to handle them. Quick, effective and
confidential decisions are not possible in body of legislatives. So, executives are delegated with
power to make rules to deal with such situations. These are the main factors, besides many
others, for the fast increase in delegated legislation today. Justice P B Mukerjee has stated
Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for
the legislators, a shield for the administrators and a provocation to the constitutional jurists. It is
praised as a necessity and felt as inevitable in our world where social economic technological
psychological and administrative speed outstrips the spacious and placid traditional legislative
ideals and processes. It is criticized as an abdication of power by legislators and an escape from
the duty imposed on them by voters of democracy.

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