This article is written by Anju Malik of Department of Law of Bhagat Phool Singh Mahila Vishwavidyalya Khanpur Kalan, an intern under legal vidhiya.
ABSTRACT
The term “Delegated Legislation” refers to legislation that has had its function transferred to a government body other than the legislature. The term “subordinate legislation” may also be used to describe this. Salmond divided the laws into two groups, namely, subordinate/delegated laws and supreme laws. Due to its many consequences, the topic of delegated legislation has been one of the ones that has generated the most discussion in the area of legal theory. The legislature of India is permitted by the constitution to draft national laws. The creation of a legislative strategy and its definition as a code of behavior is one of the most significant legislative duties. Of course, such power cannot be transferred to other institutions as a rule of behavior. It is impossible for the legislative branch to carry out all duties, nevertheless, considering the variety of welfare state activities. Delegated legislation becomes relevant in certain circumstances. Before we proceed, let’s take a quick glance at the meaning of delegated legislation.
KEYWORDS
Delegated legislation, Subordinate legislation, Administration, Executive
INTRODUCTION
Due to the multiple repercussions of delegated legislation, it is one of the most contentious issues in legal theory. The renowned four pillars of Indian democracy are the legislative, judiciary, executive, and press. These pillars are empowered by the Constitution to refrain from meddling in other people’s concerns. The legislative branch has legislative authority under the Constitution, and the executive branch is responsible for putting legislation into effect. In a same vein, the judiciary has the power to resolve conflicts and deliver justice. This essay will discuss administrative law’s delegated legislation under the Indian constitution, including its background, implications, many forms, and general idea.
CONCEPT OF DELEGATED LEGISLATION IN ADMINISTRATIVE LAW
Several nations adopt delegated legislation on a global scale. The courts must decide whether a country’s constitution has a clear limit on delegated legislation. Regarding the constitutions of nations like the United States, India, Australia, Canada, and South Africa, there is a notable lack of discussion in this context.
The legitimacy of administrative regulation in India should be discussed at various times, from the Privy Council to the current Supreme Court of India. The Supreme Court of India established legal standards in a number of decisions that are today used as a benchmark to determine whether a delegation is by definition constitutional or not. The judgments of the Supreme Court have the following implications:
- Any delegated law must be compatible with the parent act, the court said in Indian Oil Corporation v. Municipal Corporation,[1] Jullundhar Therefore, it shouldn’t go against any relevant legislative policies. A delegate is not anticipated to have greater legislative authority than any other delegate, the court intimated, to be more explicit.
- The legislature is not permitted to delegate any of the fundamental legislative duties, including formulating a strategy to oversee a specific act. The same statement could be used in numerous ways, implying that it is impossible to delegate non-essential tasks, regardless of how crucial they may be.
- The courts have agreed to accept any different declaration as a suitable policy for the contested Act, which will be necessary for assessing the grounds for constitutionality, after much study, discussion, and contemplation.
- The Supreme Court made it very plain that the purpose of delegated legislation should not be used to judge the competence of the authority. Instead, the court would take into account the significance and relevance of the setting and circumstances in which the rule-making power was used.
WHY DELEGATED LEGISLATION IS REQUIRED
The process for delegated legislation enables the government to pass laws without needing another Act of Parliament’s approval. Delegated legislation also grants the power to alter or revise the penalties imposed by a certain law or to make technical legal adjustments. Delegated laws have a big role in the legislative process because they are passed more frequently than Acts of Parliament each year. The legal status of delegated legislation is also the same as that of the originating Act of Parliament.
INDIAN DELEGATED LEGISLATION MEANING
According to the definition of delegation in Black’s Law Dictionary, it is “the act of entrusting a person with power or empowering him to perform on behalf of the person who has provided him with that power or to serve as his agent or representative.” The phrase “delegated legislation” describes the exercise of legislative authority by a person who has a lower status than the legislature or who is subservient to it. A law passed by a body other than Parliament is known as delegated legislation, commonly referred to as auxiliary legislation.
According to the Act of Parliament, Parliament has the authority to delegate the authority to enact laws to another person or entity. The system of a single or specific legislation is established by an Act of Parliament, which typically includes a statement of the Act’s purpose. Different people or organizations are given the authority to add further details to a Parliamentary Act by delegating legislation from Parliament to the Executive or another subordinate. According to Sir John Salmond, any authority other than the sovereign power is able to enact subordinate legislation.
HISTORY OF DELEGATED LEGISLATION
The Charter Act of 1833, which saw the East India Company start to regain political dominance in India, is where the historical framework of power delegation begins. The Governor-General-in-Council, an official body, was given sole administrative authority through the Charter Act of 1833. He was in charge of making rules and regulations that may be repealed, amended, or changed to apply to everyone, regardless of their nationality. The 1935 Government of India Act contained an important delegation scheme. It was decided that force assignment and nomination of enactment were required in India after the Committee of Ministers’ Powers report was submitted and approved.
It should come as no surprise that the almost 400-article Indian Constitution’s framers incorporated a solution. The politicians’ tendency to adopt a variety of legislative formulations in the Constituent Assembly is the cause of this. These concerns were insignificant in importance compared to other crucial constitutional matters that the Assembly decided to overlook and leave to future negotiation or judicial interpretation.
NEED FOR DELEGATED LEGISLATION
The legislature is given a specific amount of time to adopt laws on all topics. It lacks the time necessary to carefully enact the legislation.
- LACK OF SPECIALISATION: The legislature has little experience with complex technical issues. After building a structure, the job is given to the government organization with the required expertise.
- CRISIS SITUATION: In the event of a domestic or international emergency, the legislature lacks the knowledge to provide a speedy solution.
- CONDITION THAT ARE COMPLEX: Due to the complexity of modern administration, legislation must pay more attention to broader topics like employment, health, education, regulating trade, etc.
SUPREME COURT VIEW ON DELEGATED LEGISLATION
- In the 1959 case of “Hamdard Dawakhana v. Union of India”[2], Due to its ambiguity, the SC nullified the delegation of powers. It was decided that the Centre’s authority to list diseases and ailments in accordance with the Drug and Magic Remedies (Objectionable Advertisements) Act of 1954 is “uncanalized,” “uncontrolled,” and goes beyond the permitted parameters of legitimate delegation. This led to the decision that it was unconstitutional.
- In a 1973 decision, the Supreme Court ruled that the idea of delegated legislation has developed as a result of the practical necessity and pragmatic requirements of a contemporary welfare State.
- DELEGATED LEGISLATION IN DEMONISATION CASE
- The Central Government is authorized to issue a notification ending the legal tender status of a certain currency denomination under Section 26(2) of the RBI Act, 1934.
- The central government, in this case, was given the authority to change the characteristics of legal money by Parliament, and it exercised that authority by publishing a gazette notification (on a legislative basis).
- This delegation of authority to the Center was contested on the grounds that Section 26(2) lacks any directives for how the Center should use its authority, making it arbitrary (and illegally )
DELEGATED LEGISLATION: STATUS UNDER INDIAN CONSTITUTION.
A significant portion of India’s constitutional provisions relating to delegated legislation were clarified by the “D.S. Gerewal v. State of Punjab” [3] case. It stressed that the intrinsic power of delegation held by the legislature is unaffected by Article 312 of the Indian Constitution, which deals with the authority of delegated legislation.
The Patna Administration Committee has the authority to apply some portions of the Bengal Municipality Act, 1884 to Patna with any modifications deemed appropriate under Section 3(1)(f) of the Bihar & Orissa Act in the “Raj Narain Singh v. Chairman Patna” case. After making adjustments, the government explicitly decided to apply Section 104 of the Act to the town of Patna.
The Act’s clause stating that no municipality with the power to charge taxes could be placed on a locality without giving its citizens a chance to be heard and to voice their opinions was one of its most important provisions. However, the notification excluded the clauses that provided for this chance to object.
Delegated legislation’s limitations were made clear by “ J.K. Industries Limited v. Union of India case”. Although the Legislature has broad delegation authority, the Supreme Court highlighted that it is not permitted to give away unrestricted or uncontrolled power. Legislative rules and regulations set limits on delegated legislation.
According to the court’s decision in this case, the Legislature is permitted to assign its authority, but it must do so within the bounds of enacted legislative rules and regulations. This makes sure that the delegated authority doesn’t have unrestricted discretion and that it acts within the limits that the legislation intended.
The Indian Constitution gives the legislature the authority to assign responsibility to other agencies and to create plans to implement the legislation it approves. In D. S. Gerewal v. State of Punjab, the Supreme Court decided that Article 312 of the Indian Constitution deals with the power of delegated legislation. Justice K.N. Wanchoo stated, “There is nothing in the language of Article 312 that takes away the regular authority of delegation, which generally belongs in the legislature. The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean that legislation passed under that provision is incapable of allowing delegation. The Parliament may transfer an infinite number of functions under English law.
CONSTITUTIONALITY OF DELEGATED LEGISLATION
Different examples can be used to demonstrate the status and validity of delegated legislation in India. Before independence (pre-independence) and after independence (sometimes known as post-independence) are the two distinct periods that make up this period.
- PRE – INDEPENDENCE ERA
In Queen v. Burah (1878)[4] the Privy Council only permitted conditional legislation. In this instance, the privy council gave the executive authority previously held by the legislature. Officials chosen by the Lieutenant-Governor on a regular basis may be entrusted with the administration of the civil and criminal justice systems in a territory.
As it had done in Queen v. Burah, the Privy Council applied statutory restrictions once more in the case of “King v. Banwari Lal Sharma.” In this lawsuit, among other things, the legality of the Emergency Ordinance of the Governor-General of India was contested. Because he tried to steal authority from the Provincial Government, it was opposed. For particular types of crimes, he was creating specialized criminal courts, but only the provincial government had the power to establish any courts.
The judicial committee has determined that this is not delegated legislation. The Privy Council went on to say that it is an illustration of an atypical legislative authority in which the local administrative body decides whether local application of State law is necessary.
- POST – INDEPENDENCE ERA
The strong British Parliament did not delegate as many legislative powers as the Indian Constitution does. Determining the permissible scope of delegation in India requires extrapolating from the explicit provisions of the Indian Constitution. A limitless right of delegation inherited with legislative authority does not exist.
The Supreme Court of India upheld the legislative body’s delegation of power to the executive body in the case of “Raj Narain Singh v. Chairman, Patna Administration Committee Air (1954).” The Bengal Municipality Act was extended in this case, giving local government the authority to do so.
The Indian constitution does not specifically prohibit the legislature from appointing representatives. In the “1951 case Re Delhi Laws” Act, two constitutional limitations on legislative delegation were established:
- The legislature Is not allowed to delegate its own authority.
- An executive body’s or subordinate authority’s power shouldn’t be jeopardized by excessive delegation
ADVANTAGE OF DELEGATED LEGISLATION
- Don’t waste time before the legislature.
- Give yourself some leeway.
- Legislation requires the advice of experts.
- In the session, the Parliament is not always present.
- As a starting point for experiments.
- To use it in an emergency, it has been restored.
- Easily capable Consult the necessary case party before coming to a decision.
CRITICISM OF DELEGATED LEGISLATION
- It has a significant long-term impact on legislative power since the legislature—which is made up of the three primary state organs of the judiciary, legislature, and executive—is the ultimate organ of the state.
- Since each organ needs a certain amount of power to function properly, they all need to work with or in connection to one another in a balanced manner. Delegated legislation has actually undermined the legislative control executive, contrary to its many benefits.
- As a result of delegated legislation, the executive is now more powerful and has the ability to quickly interfere on the rules and regulations of legislation.
- This idea is opposed to the separation of powers principle.
- Before drafting the statute, there was no pertinent discussion.
- It is incompatible with the idea of the rule of law.
- It is not a stable thing by nature; it is always shifting due to political changes.
CONCLUSION
Legislation that was created with parliamentary approval is referred to as delegated or subordinate legislation. The governing body may, by resolution, transfer its power to pass laws to other organizations or people even if it has that capacity. The Enabling Act is the decision that conferred such authority. Delegated authority establishes specific guidelines, whereas the Enabling Act specifies general rules for the Council. Constitutionality of delegated authority Legislation simply refers to the constraints in a nation’s constitution that permit the legislature to assign the responsibility for enacting laws to other authorities or administrative agencies. To handle socioeconomic difficulties as soon as feasible, the government’s power must be increased. Delegation in the legislative process has benefits and drawbacks. If the courts must place restrictions on the legislative delegation power, they must do so using wide legal theories and notions.
Even while the legislative body has the power to enact laws, it can use a resolution to transfer that power to different groups or individuals. This delegation was permitted under the Enabling Act, a piece of legislation. Through the Enabling Act, the council defines basic regulations, while the delegated power decides on specific principles.
Although it plays a crucial role in the legislative process, delegated legislation frequently doesn’t get enough attention. As stated by Justice Krishna Iyer in “Avinder Singh v. State of Punjab”, “the law-making procedure leaves plenty to subordinate legislation, which, in practical terms, signifies submission to the substitute, viz., the bureaucracy which maintains commanding heights inside the Secretariat.” The technocracy and bureaucracy, which create the majority of the secondary legislation, may be well-intentioned and knowledgeable. In its most severe manifestations, the concept of delegation is fraught with democracy through the medium of a clique that the country may be ignorant of due to its naivete. That the entire process of delegated legislation is so pervasive in our system is a result, which is not surprising. Delegated legislation must be implemented immediately in light of the current situation. Government officials are given the freedom to make judgments that are best suited to the situation during national emergencies like the COVID-19 pandemic. The judiciary’s existence as a check and balance on laws passed by authorities other than the legislature is the only requirement for delegated legislation. In general, it is impossible to ignore the idea that laws persist profoundly.
REFERENCES
[1]Indian Oil Corporation v. Municipal Corporation, Jullundhar, AIR 1993 SC 844: (1993) 1 SCC 333.
[2]Hamdard Dawakhana vs. Union of India, AIR 1960 SC 554: (1960) 2 SCR 671
[4]1878 3
[5]https://legalvidhiya.com/constitutionality-of-delegated-legislation/
[6]https://blog.ipleaders.in/delegated-legislation-in-india/
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