MEANING AND CONCEPT OF DELEGATED LEGISLATION

This article is written by Saloni of 7^th semester of BBALL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of Laws Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

These days, delegated legislation is a very popular practice. Apart from ‘pure’ administrative function; the executive performs legislative functions as well. Due to number of reasons, there is rapid growth of administrative legislation. Generally, legislature enacts a law covering only general principles and policies relating to subject matter and confers rule making power on the government or some other administrative agencies. The authority to amend legislation passed by the legislature is granted to the administration.  We shall go into great detail on the idea of delegated legislation in this piece of writing.

Keywords: delegated legislation, subordinate authority, supreme authority, delegates non potest delegare, separation of power

INTRODUCTION

Due to complexities and exigencies of intensive form of government, the institution of delegated legislation has come into existence. Delegated legislation is a widely utilized approach in nearly all countries, wherein the legislature transfers certain legislative responsibilities to the executive branch. The term ‘delegated legislation’ covers vast amount of legislation made by executive and the other government agencies. Delegated legislation is also referred as ‘subordinate legislation’. In other words ‘delegated legislation refers to the exercise of legislative power by an agency which is subordinate to the legislature. By the mechanism of delegation power is transferred from the principal lawmaker to the lower body.

MEANING OF DELEGATED LEGISLATION

Delegated legislation is type of subordinate legislation in which power is delegated from the higher authority to the lower authority. It is the power given by the parliament to the administrative authority. Generally the term delegated legislation refers to the law made by the executive under the powers delegated to it by the supreme authority. In simple words delegated legislation means when the function of legislation is entrusted to organs other than the legislature itself, the legislation made by such organ is called delegated legislation.

DEFINITION OF DELEGATED LEGISLATION

The term delegated legislation is difficult to define. Although various attempt were made to define it:

• Mukherjee J. define delegated legislation as- “delegated legislation is an expression which covers multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists.”[1]
• According to committee of ministers, “power, the expression ‘delegated legislation’ is used in two senses. In one sense delegated legislation means the exercise of power of rulemaking delegated to the executive by the legislature. In the other sense, it means the output of the exercise of that power.”

HISTORY OF DELEGATED LEGISLATION

• Delegated legislation has its roots in the legal system of Great Britain. It developed historically in order to handle the increasing administrative complexity in the 19th and 20th centuries. The rise of welfare states resulted in more laws than legislatures could handle due to their sheer volume and complexity, which forced them to cede some of their authority to individuals or expert groups.[2]
• With the passage of the Charter Act in 1833, the East India Company started to regain influence over politics in India, setting the historical framework for power delegation.
• The Governor-General-in-Council, an official body, was granted exclusive authority over all administrative responsibilities by the Charter Act of 1833. He had the authority to enact laws and rules that would change, repeal, or amend any rules that were universally applicable, regardless of a person’s nationality.
• In 1935, the Government of India Act, 1935, which included a significant delegation plan, was passed.[3]

FACTORS RESPONSIBLE FOR THE DEVELOPMENT OF DELEGATED LEGISLATION

Delegated legislation is not an isolated phenomenon. There are many factors which are responsible for the growth of delegated legislation. Because of the radical change in the philosophy of the role played by the state as a result the functions of the state also increased for promoting the welfare of the citizens. Consequently the concept of delegated legislation becomes indispensible. Following factors are responsible for the growth of delegated legislation:

1. Pressure upon parliamentary time: are there is rapid growth in the function of state, the no of legislation also increases that it is not possible for the legislature to devote sufficient time to discuss all the matters in detail, legislature on formulates general policies only and rest of the powers are given to the executive.
2. Emergency: some such a situation arises in which quick action is required to be taken. An emergency arises in case of war, floods, epidemics, economic depression etc. in such a case legislative process in not enough to deals with the urgent situation. Hence it is necessary that executive must have some power so that he can use such power in emergent situation.
3. Confidential matters: in some situations public demand that the law must not be known to any one till it comes into operation, i.e. rationing scheme or imposition of import duty.
4. Experimentation: ordinarily the legislative process lacks viability and experimentation. On the other hand delegated legislation enables the executive to experiment.
5. Flexibility: parliament does not function continuously; hence it is not possible to see all the contingencies while passing any legislative enactment. Therefore, executive is empowered to see all the contingencies. Delegated legislation provides quick amendment mechanisms.
6. Technicality: some time the subject matter of the legislation is of technical nature and requires consultation of experts. In such cases the legislative power is delegated to experts to deal with the technical problems, i.e. atomic energy, gas, drugs etc.
7. Complexities of modern administration: in the complexities of modern administration it is necessary to resort to new forms of legislation and to give wide powers to various agencies on suitable occasions. Hence it is necessary that administrative agencies should be given wide powers so that immediate action can be taken.

CHARACTERISTICS OF DELEGATED LEGISLATION

• These are the laws enacted by individuals or organizations to which the parliament has granted legislative authority.
• It is necessary in the parent Act or enabling legislation.
• These are made in accordance with the Principal Parliamentary Act, which specifies who has the authority to make subsidiary legislation and provides a mechanism for its creation.
• There are a lot of administrative elements in it that are required to make sure the Act’s provisions work as intended.
• It could be run by courts, local councils, or government departments.

CLASSIFICATION OF DELEGATED LEGISLATION

Delegated legislation can be categorized in a number of ways:

1. Titled based classification
2. Nature based classification (exceptional delegation)
3. Discretion based classification
4. Purpose based classification
5. Authority based classification (sub-delegation)

1. Titled based: parliament does not follow any particular policy in choosing the forms of delegated legislation. It is therefore, that delegated legislation appears in several forms for example rules, regulation, order bye-laws and notifications.

2. Nature based: delegated legislation may also be classified on basis of nature and extent of delegation of legislative power.

3. Discretion based: the executive may receive a conferred discretion in order to make the act operational such type of legislation is termed as ‘conditional’ and ‘contingent’ legislation.

4. Purpose based: the purpose has its basis on nature and the level of power granted and the purposes to which those powers can be practiced. The executive is empowered to enforce the act on a particular day, to include or exclude the working of the act to particular territories, industries and commodities etc.

5. Authority based: the authority based that make rules may either delegate to itself or to a subordinate authority. This practice of rulemaking power is called sub-delegated legislation.

TYPES OF DELEGATED LEGISLATION IN INDIA

In India there are two types of delegated legislation:

• Conditional legislation and
• Subordinate legislation

In India ‘conditional legislation represents nearly the same idea as ‘ contigent’ legislation in America. Contingent legislation is defined as ‘a statute that provide control but specifies that they are to come into effect only when administrative authority finds the existence of some condition as specified in the statute. Delegation is of fact-finding in contingent or conditional legislation.

On the other hand, subordinate legislation the process consists of a discretionary elaboration of rules and regulations. In subordinate legislation the delegation is of discretion.

NEED FOR DELEGATED LEGISLATION

• It permits the Government to enact legislation without waiting for the passage of a fresh Act of Parliament.
• It makes it possible for the government to quickly adapt to the shifting requirements of society.
• It gives the authority to adjust the penalties imposed by a particular statute, as well as to make technical legal changes.
• When an emergency occurs, it is crucial to have delegated legislation to handle it immediately, rather than waiting for an Act to be approved by Parliament to address the specific issue.
• A scenario that wasn’t anticipated by Parliament when the law was passed frequently comes up. Under such circumstances, the Act’s shortcomings may be addressed by delegated law.
• Many times, the local government has accurate and impartial knowledge of the situation on the ground. As a result, the local government can enact laws that best suit the needs of the community. Delegated legislation, therefore, permits people possessing the necessary expert knowledge to make laws.

CONSTITUTIONAL PROVISIONS RELATED TO DELEGATED LEGISLATION IN INDIA

The concept of delegated legislation was not mentioned specifically in the Indian constitution it can be understood by interpreting article 312 of the Indian constitution. As per this article right has been granted to the Rajya Sabha to open a new branch of all india service with two third majority. This means that some power of the legislation will be delegated to the new recruiter of all India service. There are many cases through which the concept of delegated legislation can be understood. 

In case of D.S. Gerewal v. state of Punjab (1959),[4] the court held that article 312 of the Indian constitution deals with the powers of delegated legislation. In this case justice K.N. Wanchoo observed that, “there is nothing in the words of article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.

CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION

The position of delegated legislation in India can be understood under two heads:

• Pre- constitution period and
• Post-constitution period

Pre-constitution period

Regarding the pre-constitutional period of delegated legislation in India, Queen v. Burah is regarded as the key case that established the principle of conditional legislation.

The question of constitutional validity of delegation of powers comes for consideration before the federal court in Jatinder Nath Gupta v. Province of Bihar (1949)[5] In this case the federal court held that the power of extension with modification is not a valid delegation of legislative power because it is an essential legislative function which cannot be delegated. It is for this first time when it was ruled that in India legislative powers cannot be delegated.

Post-constitutional period: as the decision in Jatindra Nath Case has created confusion, the question of permissible limits of delegation of legislative power became important The Delhi Laws Act can be regarded as “siddhantawali” in terms of the validity of delegated laws. The importance of the case cannot be underestimated because it permitted delegation of legislative power by the legislature to the executive, while on the other hand; It defined the boundaries of what the legislature may legally delegate.

In Re Delhi laws act case[6] it was held that the essential legislative function cannot be delegated where as nonessential function can be delegated. In this it was propounded that:

• Parliament cannot abdicate itself by creating a parallel legislative body
• Legislative authority is secondary to the power of delegation.
• Revocation authority is legislative in nature and cannot be transferred.
• The legislature is unable to relinquish the fundamental legislative authority that the constitution has specifically bestowed upon it.

CRITICISM OF THE GROWTH OF DELEGATED LEGISLATION

• There is overlapping of functions since delegated legislation allows authorities other than Legislation to make and alter laws.
• There may be discrepancies in the law as a result of the reduced parliamentary oversight and inspection.
• The delegated legislation typically lacks visibility because the law passed by a statutory authority is not made public.
• Since too much legislation is enacted by unelected individuals, it goes against the essence of democracy.

CASE LAWS

Hamdard Dawakhana v. Union of India (1960)[7], parliament passed the srugs and magic remedied (objectionable advertisement) act, 1954 to control the advertisement of certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited and authorized the central government to include in other diseases in the list. The court ruled that section 3 was unconstitutional because the legislature had not established any guidelines for the government to follow when choosing which diseases to include.

In case of parasuraman v. state of tamil nadu (1990),[8] the supreme court held in Tamil nadu private educational institutions (regulations) act, 1966 ultra vires. In this case the Supreme Court observed that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. After the legislature establishes sufficient guidelines for the exercise of power, it is acceptable to assign the duty of carrying out the act’s purpose to the designated authority.

In quarry owners association v. state of Bihar (2000),[9] apex court has held that when policy is laid down in the legislation delegation power to the government it cannot be said to be arbitrary or excessive. The court went on to say that another safeguard against the arbitrary use of authority is the state government’s accountability to the state legislature.

 In Gwalior rayon silk mfg. Co. Asstt. Commissioner[10], under section 8(2)(b) or the central sales tax act, 1956, the parliament did not fix the rate of central sales tax but adopted the rate applicable to the sale or purchase of goods within the appropriate state in case such rate exceeds 10%. The validity of the said section was challenged on the ground of excessive delegation  because the parliament is not fixing the rate itself and in adopting the rate applicable within the appropriate state has laid down any policy under the act and thus abdicated its legislative function.

CONCLUSION

Although the legislature has the power to make rules, also it has been given power it can delegate the law-making power to some other authority by a resolution. But it does not mean that all the lawmaking power of the supreme law making to be delegated to the subordinate authority. In simple word delegation must be in such a way that subordinates authority should not do a particular act which the superior authority can only do.

REFERENCES:

1. Tripathi, A. (2018b, January 5). Delegated legislation. jusprudentia. https://www.jusprudentia.com/single-post/2018/01/06/delegated-legislation#:~:text=Mukherjea%2C%20J.,is%20either%20supreme%20or%20subordinate.
2. Testbook. (2023, August 9). Delegated Legislation: meaning, types & Legal framework explained. Testbook. https://testbook.com/ias-preparation/delegated-legislation
3. Rai, D. (2022, January 26). Delegated Legislation in India : analysis and overview. iPleaders. https://blog.ipleaders.in/delegated-legislation-in-india/Ltd, A. A. (2023, May 17). Constitutionality of administrative rule making. https://www.lawteacher.net/free-law-essays/constitutional-law/constitutionality-of-administrative-rule-making-constitutional-law-
4. (D. S. Garewal vs The State Of Punjab And Another, 1958) https://indiankanoon.org/doc/615469/
5. (In Re The Delhi Laws Act, 1912,The … vs The Part C States (Laws) Act, 1951) 1.https://fitinlaw.wordpress.com/2021/06/17/in-re-the-delhi-laws-act-1912-air-1951-sc-332-case-summary/(Hamdard Dawakhana (Wakf) Lal … vs Union Of India And Others, 1959) 1.https://judicateme.com/wp-content/uploads/2021/11/The-Hamdard-Dawakhanna-and-Another-v.-Union-of-India-and-Others_JudicateMe.pdf
6. (A.N. Parasuraman Etc vs State Of Tamil Nadu, 1989) https://indiankanoon.org/doc/1773467/
7. (The Quarry Owners Association vs The State Of Bihar & Ors, 2000) https://indiankanoon.org/doc/281568/#:~:text=It%20further%20held%2C%20there%20are,for%20the%20purposes%20connected%20therewith.
8. (Gwalior Rayon Silk Mfg. (Wvg.) Co. … vs The Asstt. Commissioner Of Sales, 1973)1.https://blog.ipleaders.in/section-73-of-companies-act-2013/#Gwalior_Rayon_Silk_Manufacturing_Weaving_Co_Ltd_v_Assistant_Provident_Fund_Commissioner_2016

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[1] Tripathi, A. (2018b, January 5). Delegated legislation. jusprudentia. https://www.jusprudentia.com/single-post/2018/01/06/delegated-legislation#:~:text=Mukherjea%2C%20J.,is%20either%20supreme%20or%20subordinate.

[2] Testbook. (2023, August 9). Delegated Legislation: meaning, types & Legal framework explained. Testbook. https://testbook.com/ias-preparation/delegated-legislation

[3] Rai, D. (2022, January 26). Delegated Legislation in India : analysis and overview. iPleaders. https://blog.ipleaders.in/delegated-legislation-in-india/

[4] (D. S. Garewal vs The State Of Punjab And Another, 1958) https://indiankanoon.org/doc/615469/

[5] Ltd, A. A. (2023, May 17). Constitutionality of administrative rule making. https://www.lawteacher.net/free-law-essays/constitutional-law/constitutionality-of-administrative-rule-making-constitutional-law-

[6] (In Re The Delhi Laws Act, 1912,The … vs The Part C States (Laws) Act, 1951) https://fitinlaw.wordpress.com/2021/06/17/in-re-the-delhi-laws-act-1912-air-1951-sc-332-case-summary/

[7] (Hamdard Dawakhana (Wakf) Lal … vs Union Of India And Others, 1959) https://judicateme.com/wp-content/uploads/2021/11/The-Hamdard-Dawakhanna-and-Another-v.-Union-of-India-and-Others_JudicateMe.pdf

[8] (A.N. Parasuraman Etc vs State Of Tamil Nadu, 1989) https://indiankanoon.org/doc/1773467/

[9] (The Quarry Owners Association vs The State Of Bihar & Ors, 2000) https://indiankanoon.org/doc/281568/#:~:text=It%20further%20held%2C%20there%20are,for%20the%20purposes%20connected%20therewith.

[10] (Gwalior Rayon Silk Mfg. (Wvg.) Co. … vs The Asstt. Commissioner Of Sales, 1973)https://blog.ipleaders.in/section-73-of-companies-act-2013/#Gwalior_Rayon_Silk_Manufacturing_Weaving_Co_Ltd_v_Assistant_Provident_Fund_Commissioner_2016