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  • LOVEPREET KAUR

DELEGATED LEGISLATION

Written by : Lovepreet Kaur, LL.B, Lovely Professional University

I. ABSTRACT:

In this era, the activities of the Government for the State have spreader nearly in each field and

in each sector of the world. Thus, there's a desire for the enactment of various Laws to

control this ever-increasing activity. As we all know that the function of ‘Legislation’ is

“to make the rules”. However, it doesn't have time to perform all the functions and examine all

the law points or measures that are necessary to implement the enacted Laws.

Therefore, there's requirement of “Delegated Legislation”. In easy words, ‘Delegated

legislation’ is nothing however the Law created by a body or the person to whom the Parliament

has delegated his power to Legislation. The concept, Delegated legislation has been derived back

too several centuries thus it’s not a plan of recent origin. However, the phenomena of Delegated

legislation have introduced a brand-new trend, by that a gradual shift has been witnessed out of

the thought of ‘separation of powers. Moreover, the other legislation that is subordinate to

primary legislation is understood as delegated that the exercise of legislative power by place of

work that's subordinate to the general assembly. Due to the widening scope, Delegated

Legislation has occupied a distinguished place within the law1. Thus, this paper first of all reflects the “concept of Delegated Legislation”. Secondly, this paper explores the ‘nature and scope’ for Delegated Legislation. Thirdly, this paper highlights the ‘factors that leads to growth of Delegated legislation’ and last but not the least, the paper puts into perspective the various problems with relevancy Delegated Legislation and recommends solutions relating to same.

Key words: Enactment, Legislation, Delegated Legislation, Separation of power, Subordinate.

II. INTRODUCTION:

The Indian Constitution gives the legislature the authority to draft the laws. Creating a legislative

policy and enclosing it as a code of conduct is one of the duties of the legislative branch. As a

result, this authority cannot be granted to other institutions. However, it is impossible for the

legislature to carry out all of the duties given the different activities that a State engages in.

Therefore, the Delegated Legislation enters the picture in such a circumstance2

and it is one of the key components of administration also which requires the manager to carry out specific legislative duties. So, Delegated Legislation is a procedure whereby the top authority receives capabilities from main legislation to create Laws in order to carry out and manage the desires.

III. HISTORICAL BACKGROUND:

Pre constitutional position:

In India, the historical evolution of Delegated Legislation commenced from the arrival of

English people and from the struggle they had made in order to carry the political power3

in their sub-continent. This was traced from the Charter Act, 1833 when the legislative powers

were vested in Governor General in council which was the main body of that time. He had the

powers to make the Laws, to repeal, to amend and to alter the any Laws according to the needs

of the people.

After this in 1935, the Government of India Act was passed in which provides the Delegated

Legislation unpreventable in India.

Afterwards position:

As our Constitution supported the principal of ‘separation of powers’. But we know very well

that whole separation of powers wasn't possible4

. However, the constitution of India

doesn't prohibit delegation of powers. on the contrary, there are certain provisions where the

manager has granted the Delegation of legislative powers. To be more precise, these powers of

the President under Indian constitution are prominent as stated in the case “Raj Narain Singh v

Chairman Patna Administration committee”.

IV. DEFINITION:

In the words of R. Dayal;

“Delegated Legislation is defined as "legislation passed by a body to whom the power of

legislation has been delegated by the statute."5

Salmond defines Delegated Legislation as;

"Legislation that has its source in any authority and is therefore reliant on another authority to

continue to exist and be valid."6

Delegated Legislation has two meanings, in M.P. Jain's opinion:

1) A subordinate agency exercising the Legislative authority granted to it by the legislature, or

2) the actual rules and regulations, which are created by the subordinate authority using the

authority granted to it by the Legislature.

V. MEANING OF DELEGATED LEGISLATION:

Basically, “the Delegated Legislation” means any Law made by the executive branch within

the powers conferred by the supreme legislative body7

. It presents as a way of rules and statutes.

Moreover, it is the transfer of powers of sovereign to the subordinate. Therefore, it can also be

said as ‘subordinate Legislation’. Along with this, it allows the institutions under the principal

authority or the Legislative body in order to make the Laws as per their needs.

For example; the local governments have delegated the powers according to their needs only

to make or amend the Laws in their respective areas.


VI. NATURE AND SCOPE:

The reach of Delegated Legislation is very broad. With the help of this legislation, the Indian

judicial system is now well-run. As Indian Law is so specialised, it is not acceptable to apply

the idea of non-delegability strictly. This enables the government to address social and

economic issues in a productive and effective way. Moreover, this Legislation contains the

ultra vires doctrine, which is defined as going beyond the purview, jurisdiction, or power of

any company or statutory body. It suggests a lack of ability to perform any action. When

delegated authority goes beyond its bounds, it commits an ultra vires violation that is either

illegal or void8.

Furthermore, as per the Article 245 and Article 246 of Indian Constitution, the parliament can

indirectly delegate the powers but that too are of the non- essential works and if it’s found in

violating the fundamental right then it will be considered as void.

Along with this, there are plethora of judicial precedents by the courts in which they justified

this concept of Delegated Legislation which are as follows:

▪ Avtar singh v State of Jammu and Kashmir.

9

▪ DS Grewal v State of Punjab.

10

▪ Panama Refining Company v Rayan11

.

VII. NEEDS:

Followings are the needs for Delegated Legislation:

1. Lessen the workload of Parliament:

During the brief time it is in session, the Parliament must enact a number of laws. It must put in

such a lot of effort that it can hardly enact the legal provisions in their entirety. If the Parliament

spends all of its time establishing minor and details of every piece of legislation then, it will take

too long and be able to address only a small portion of the Act in all. The operation of the

Parliamentary process is both time- and money-consuming. The expanding demands of

legislation are too great for it to handle. Therefore, overcoming that burden becomes necessary,

and it can be done only through Delegated Legislation.

2. Technical know-how:

Thanks to the development of modern methods and technology, today's world is exceedingly

technical and complex. The members of Parliament must therefore be knowledgeable in every

field, yet no one can be an expert in every topic. As a result, it is challenging for members of

Parliament to possess the necessary expertise to pass legislation in a variety of disciplines12.

Furthermore, Parliament is not a body that has the authority to enact laws governing

administrative and technical specifics; rather, it is primarily focused on social issues and the rule

of law. It is therefore believed that it is preferable for the Parliament to discuss the broad subject.

3. Emergency situations:

Delegated legislation permits the action, but Parliament takes much time to make decisions. It

must convene a meeting before the parliamentarian can consider the urgent matter. Then, if they

all adjourn, only that deed would have been accomplished. In some instances; the Parliament

lacks the time to make a piece of legislation precisely.

Illustration: The Act named “the Prevention of Terrorism Act”, which was created in the UK

as delegated legislation, has now added a new prohibited group to terrorism.

4. Experimental foundation:

It is an option for an experimental foundation. It enables speedy legislative action. A law can be

amended and a new law can be produced in its stead if it was created for a certain set of

circumstances and fails to fulfil those conditions and if this legislation is applied appropriately

to the circumstance, it will take effect there. In the eyes of the contemporary public, it is

advantageous in this way13

5. Flexibility:

Flexibility is made possible because in delegated legislation, the executive fills in the small print

after Parliament creates the broad framework of the Law. Thus, these inconsequential features

can be adjusted right away without a Parliamentary amendment. As a result, it is adaptable, and

the laws created as a result can be tailored to the demands of the general public in the current

world.

VIII. DELEGATED LEGISLATION DISTINGUISED FROM ADMINISTRATIVE

POWER14:

There are some key points under which we can noticed the Delegated Legislation as

distinguished from administrative power; these are as follows;

a. Publishing:

Administrative orders that refer to a specific person and must be served only on that person are

not typically needed to be published in the official gazette. However, Legislation orders are

required to be published in official gazette.

For instance: ‘Necessary Commodities Act of 1955’ may be helpful in this regard. Section 3

of that law states that the Central Government may order the regular movement of essential

commodities among other things, through an order. The administration may issue both

legislative and administrative orders in accordance with this clause. Section 3 Subsection 5

makes this apparent by mandating those orders of a "general nature" or those affecting "a class

of persons" must be published in the official gazette, but orders tailored to "specific" individuals

only be needed without publishing in official gazette.

b. Procedures followed by the administration:

Even if the statute that governs the action being taken is silent on the matter, the administration

must adhere to the principles of natural justice when adjudicating a case. However, when

legislating, only those procedural rules that are specified in the applicable statute must be

followed.

c. Grounds for Judicial review:

As mala fides may be stated as a ground for contesting an administrative action, although in

the event of delegated legislation, it is highly improbable that such a challenge will succeed.

IX. DELEGATED LEGISLATION UNDER CONSTITUTION OF INDIA:

Even though the Indian Constitution didn't address delegated legislation expressly, it can be

understood by looking at how Article 312 of the document is interpreted. This Article grants

the Rajya Sabha the authority to establish a new All India Service branch with a two-thirds

majority vote. This indicates that some legislative authority will be granted to the new All India

Service recruitment. Delegated legislation under the Indian Constitution is understandable

through a variety of situations. As follows:

1. D.S. Grewal v. State of Punjab15

In this Case, it was held by the Supreme Court of India that relation to Article 312 of the Indian

Constitution's delegated legislative power. The Central Government has launched an

investigation against the appellant because it is a very serious matter and because it has the

power to remove or forcefully dismiss him from his position. Article 312 of the Indian

Constitution makes no mention of anything that would eliminate Delegation Authority.

2. Panama Refining Co. v. Ryan16

In this case, the house of lords held that any delegation of the President's legislative authority

is invalid. The Court ruled that Congress can only give the Executive authority under two

circumstances. First and foremost, circumstance is; the Statute established certain guidelines.

The second step is to set the criteria and grant the administration the authority to impose the

subordinate regulation within the specified parameters.

X. DELEGATED LEGISLATION IN LIGHT OF COVID-19:

The COVID-19 epidemic has triggered the worst worldwide health crisis since World War II

and presented us with our greatest global challenge. The virus has spread to practically every

continent since it first appeared in China in December 2019. In addition to this, a rapid

pandemic breakout has had a significant impact on people all across the world, who are either

jobless or in great danger17. Furthermore, since the virus was found, there is no treatment for

it. As a result, the Indian government was under pressure to act swiftly and was forced to give

authority to experts for the reasons indicated below;

a) Emergency scenario:

A crisis situation necessitated immediate action because the virus has spread globally and

generated a pandemic, which was a serious concern for all relevant authorities when it was

initially discovered.

b) Pressure on parliament:

Only a few nations have been able to manage the pressure on legislative time extremely

successfully. This virus has touched every nation. The Government did not have enough time

to consider and respond appropriately to such circumstances. The choices were made quickly

in an effort to stop the virus's spread and contain it. So, Delegated Legislation came into force.

c) Need for expertise:

Because these issues are so serious, it is unreasonable to expect parliamentarians to handle

them. Instead, those who are skilled at handling these circumstances should take care of it.

Hence, it is necessary to hire specialists.

XI. PROBLEMS:

1. Violates the principle of separation of power:

That the executive branch of government is given too much power because individuals inside

it have the authority to enact laws. As a result, the practise dilutes the separation of powers and

all of its advantages.

2. Undemocratic:

since the people and organisations who carry out the legislative duties under it are not

legitimately elected representatives of the populace18. It is obvious that delegated legislation

compromises the widely held belief that there should be no taxation without representation.

3. It is not sufficiently controlled:

The only way to reduce the detrimental impacts of delegated legislation on democratic

government is to effectively control it. Regrettably, it is very hard to adequately control

delegated legislation. As a result, this turns into one of the drawbacks of delegated law.

4. Abuse of delegated laws:

Officials that are power-hungry or power-drugged are known to seize unauthorised authority

and use it anyway they choose, all in the name of delegated legislation. This is how delegated

law has made it possible for harmful behaviours like political discrimination and corruption to

flourish19

.

XII. SUGGESTIONS:

1) If, as is the case in India, parliamentary control overlaps with delegated legislation, a powerful

enough parliamentary committee and separate laws providing a uniform standard for laying

down and publishing requirements must be created and passed.

2) A committee needs to have a separate body to assess whether the assigned work is being done

correctly and efficiently.

3) To avoid systemic disorder, all three organs should concentrate on their tasks and avoid taking

unnecessary breaks.

4) Besides these, it should be sufficiently controlled by the authorities as well.

5) It should not violate the principle of separation of powers, there must be an eye on it.

6) There should be effective publication and promotion of rules and regulations.

XIII. CONCLUSION AND OBSERVATION:

To recapitulate, Legislation that has been delegated to another body and has not been created

directly by a Parliamentary Act but rather with its permission, known to be the ‘Delegated

legislation’.

The Executive Government has received substantial and frequent delegations from Parliament

granting it limited authority to implement specific Acts. Any prejudices that may have existed

in the past towards delegated regulation are now recognised as inevitable. It would be more

crucial to comprehend the safeguards that should control how delegated law operates in the

area than to fight against it. There is little doubt that the legislature's constitutional

responsibility is partially abandoned by the practise of delegated law. The system of delegated

legislation significantly strengthens the executive's authority while reducing that of the

legislative.

REFERENCE

1 Amit kumar, “Delegated Legislation development and parliamentary control” 2421 Journal of Legal services India 2 (2021)

2 Ashish Srivastava, “The Notion of Delegated Legislation in India” 25 Saudi Journals 2 (2019)

3 Delegated Legislation and its Constitutionality, India, available at: https://unacademy.com/content/upsc/studymaterial/law/delegated-legislation-and-its-constitutionality/(Last visited on August 21, 2022)

4 Delegated Legislation in India: Analysis and overview, available at: https://blog.ipleaders.in/delegatedlegislation-in-india/(Last visited on: August 21, 2022)

5 Meaning and Definition of Delegated Legislation, India, available at: https://tyrocity.com/administrativelaw/meaning-and-definition-of-delegated-legislation-1m8l (Last visited on August 21, 2021)

6 Meaning and Definition of Delegated Legislation, India, available at:www.srdlawnotes.com/2019/02/delegated-legislation-meaning-and.html(Last visited on August 21, 2022)

7 Bhoomi Mishra, “Meaning and evolution of Delegated Legislation” 22 Journal of Law Bhoomi India 1 (2021)

8 Nishu Singh, “Delegated and Sub Delegated Legislation: Concept under Administrative Law” 8 Journal of Ijalr.

In 2 (2020)

9 AIR 1980 J K 50

10 1959 AIR 512, 1959 SCR Supl. (1) 792

11 293 U. S. 388 (1935)

12 Arshiya Firdpus, “Importance of Delegated Legislation” 22 Journals for Law students and researches 3 (2021).

13 Importance of Delegated Legislation in light of COVID 19, available at:www.legalserviceindia.com/legal/article-4066-importance-of-delegated-legislation-in-the-light-of-covid-19.html(Last visited on August 26, 2022)

14 CK Takwani, Lectures on Administrative Law 27-30 (Eastern Book Company, 2022)

15 Supra note 10 at 5

16 Supra note 11 at 5

17 Supra note 13 at 7

18 Advantages and disadvantages of Delegated Legislation, available at: https://bscholarly.com/disadvantages-ofdelegated-legislation/(Last visited on August 30, 2022)

19 Advantages and disadvantages of Delegated Legislation, available at: https://connectusfund.org/14-advantagesand-disadvantages-of-delegated-legislation(Last visited on August 30, 2022)

 

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