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Meaning and Concept of Delegated Legislation

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This Article is Written By Sanskriti Sharma, University School of Law and Legal Studies, an intern under Legal Vidhiya.

Introduction

The term legislation is constituted to two separate words of foreign origin, these are latin words legus and latum. The former means law and the latter means to make law. Hence, etymologically, legislation refers to the making or framing of laws.

The legal theorist Austin believed strongly on the part of legislation as one of the sources of law for society and claimed, “There can be no law without a legislative act.” He was of the view that even when a judge acting upon his capacity to adjudicate on a matter in his court, while doing so exercises the legislative powers and the judicial powers. Although the term legislation is often used in very loose terms but in its essence, the term has genesis in the expression of the will of the legislature, whether law making or not. It is on these grounds that Professor Gray, an eminent legal theorist, has referred to legislation as the formal utterances of the legislative organs of the society. Herein the contents of the rule are formulated by the legislature and the legal force is imparted by the sovereign power which authorises the written law. The different schools of jurisprudence are often in conflict regarding the interpretation of the legislation as being an appropriate source of law. The analytical school opines that law typically constitutes of statues and hence legislation is accepted as the normal process of creating law. Contrary to this is the historical school that stands with the notion that this particular source of law is the least creative and popular one. It stands against laws being made by human actions and abrogating or changing such law through human volition.  However, both these schools hold extreme and differentiating views on legislation as a law.

Likewise, Salmond too observed legislation as a source of law that is sourced in decisions of the competent authority. He lays down the. He differentiates legislation as source of law in three different senses. The first one looks at legislation as inclusive of all law making methods. The second view contemplates to be direct and indirect and the third view includes all expression of wills of the legislature as the law whether law making or not.  These types of laws as divided into supreme and subordinate by Salmond become essential to understand the concept of delegated legislation.

Supreme and Subordinate legislation

Legislations can be divided under the head of supreme and subordinate legislation. It is classified as supreme when the power of authorising such legislative acts flows from the supreme authority, which is the state in a sovereign nation. Supreme legislations having origin in the sovereign rights of the state thus cannot be repealed, annulled or amended by any other authority which does not enjoy such supreme authority or is subservient to supreme authority. Contrary to this is the subordinate legislation which is dependent on the supreme and sovereign authority for its validity as they proceed not from the supreme authority. tic-mzdx-jom

For example, in the UK the parliament is the supreme and sovereign authority and hence enjoys the potency of supreme legislation. However in India, the constitution is supreme and the parliament is sovereign but the parliament is considered to have the capacity of supreme legislation as bodies inferior to the sovereign authority are tasked with subordinate legislation.  Based on this principle is the concept of delegated legislation which is nothing but the legislation made by any authority other than the legislature. This means that laws which are the result of some power being delegated by subordinate authorities by the parliament, such laws are delegated legislation. It can range from by-laws, rules, ordinances, regulations, circulars, schemes to notices etc. It often is used in two senses, one to refer to the exercise of Executive’s rule making power and in the other sense refers to the output of exercise of such powers.

However there needs to be caution while equating delegated legislation to executive legislation. Delegated legislation stands for the laws formulated by authorities which have been delegated these powers by the legislative bodies. Executive legislation, conversely refers to only those laws which are made by the president and Governor under the powers conferred to them under article 123 and 213 which details on ordinances. The ordinances have an effect of only six weeks after the assembly of Legislature in which they might be ratified or repealed.

Validity of Delegated Legislation

Certain conditions are prerequisite for considering any delegated legislation as valid and enforceable. These are –

  1. The parent act must be valid. A parent act is the one which enables and imparts power to the delegated legislation.
  2. The clause regarding delegation of authority must be valid
  3. The statute such made must be in consonance with the delegation clause in terms of procedure, substance and form.
  4. The statue must not violate the norms and guidelines laid down in myriad judicial decisions.
  5. The statute must also not violate any fundamental right or provision of the constitution. 

Need for Delegated Legislation

  1. Increase in the work of the State.

The newly introduced concept of welfare states in the 20th and 21st century led to an increase in the work of the government which had to assume more responsibilities. The advent of technology and various other developments have also broadened the ambit of subjects requiring assistance of the Parliament. Considering the paucity of time, the Parliament only legislates on essential principles leaving the intricacies to be decided by the executive.

  1. Lack of expertise and knowledge

The parliament may not in all circumstances have adequate knowledge about the technical nature and details of certain fields on which legislations are required. In such scenarios, the need for delegated legislation becomes quintessential. For example, the subjects of nuclear energy, electricity, gas, atomic energy etc. are extremely technical and conceptual in nature.

  1. Cases of Emergency

Delegated legislation becomes important in unforeseeable and extraordinary circumstances of war, floods, natural disasters, economic depressions, epidemics etc. These require immediate and speedy actions to combat the challenges at the earliest, the legislative process being deliberative and lengthy may not be appropriate.

  1. Scope for Adaption

The delegated legislation also provides scope for adaptation in line with the future conditions by making laws, rules and regulations supplementing the supreme legislation without the need to bring repetitive amendments.

  1. Need for confidentiality

The laws made in the interest of the larger public and welfare of the citizens, confidentiality on certain issues and subject matters becomes pertinent. It becomes feasible to delegate legislation in such matters to the concerned and competent authorities.

  1. Socio-economic goals

The welfare schemes of the state have increased tremendously and the socio economic objectives enshrined in the directive principles of the state policy can be effectively realised through implementation of delegated legislation.

Types of Delegated Legislation  

The myriad types of delegated legislations are –

The Imperial legislature granted limited powers of self-government in varying degrees to the British colonies and other dependent countries. The colonies made use of this power and benefited from their legislative authority. Even then, the Imperial Legislature, namely the British Parliament, had the authority to repeal, amend, or replace legislation created by colonial governments. The self-governing dominions under the Crown, however,later had the authority to enact laws on their own while still being subject to the national supremacy of the British Crown thanks to the 1931 passage of the Statute of Westminster.

The executive branch of government’s departments frequently receive the authority to make rules on behalf of the Parliament. The regulations created under this delegated authority are binding.

However, the legislature may choose to repeal or replace them as and when it sees fit. According to Keeton, this type of subordinate legislation has resulted in a sizable body of regulations known as administrative law, which is also known as “public law” since it characterises the nature of the executive branch of the government’s operational activity.

In India, the executive branch has the authority to enact laws, rules, and regulations, as well as to choose the most suitable place for market or to make decisions regarding more general issues like taxation and the creation of incorporated bodies.

In some circumstances, the judicial system regulates their procedure in the exercise of their power, also known as judicial legislation. It is authorised to be delegated to the judiciary and the courts. However this must not be confused with judicial precedents which are a separate source of law through the decisions of the court.

The constitution of India empowers the Supreme court under article 145 and likewise the high courts under article 227 to make its own rules regarding its operation. They may conduct rules and regulations governing the manner in which business is conducted and for supervising the subordinate courts.

Article 145 details the following matters on which the supreme court may make rules-

These rules under article 145 are subjected to two limitations –    they should be enacted under the law passed by Parliament and they should have the approval of the President.

The municipal authorities are permitted by law for creation of rules inside their regions. The by laws may be created for specific goals such water taxes, land urban cess, property taxes, town planning, public health, and sanitation, among others.

The State may sporadically permit private organisations, such as universities, businesses, and corporations, to create bylaws that govern how they conduct their operations. These bye-laws were created through the rule-making process and grants these entities authority by the state.

Control of Delegated Legislation

The control of delegated legislation is imperative to prevent misuse of power and dilution of separation of powers resulting in encroachment of the functions of other organs of the government, specifically of legislature by the executive. It can be controlled in the following ways –

The Parliament is equipped with various procedures to ensure general control. Any bill before becoming a statute or legislation needs the assent and support of the parliament. It thus also has capacity to amend, modify or completely refuse the bill conferring powers on any subordinate authority to protect the provisions of the constitution. 

Another measure to keep the delegated legislations and their prospective usage in check is to lay down the laws made under delegated legislation before the supreme legislature i.e. the Parliament to seek its opinion and approval to provide an opportunity for amendments in the aforementioned legislation if necessary.

This is an indirect form of control as opposed to the direct control practised by the legislation. Herein the courts may prevent the application of any law by expressing its opposition to it. This does not abrogate the said law but prevents its usage in future circumstances, turning it effectively into a dead law. This is the doctrine of ultra vires which assesses whether the delegation legislation falls within the ambit of the powers conferred to it.  

An internal control of the delegated legislation can be achieved if there is a constitution of a trustworthy body of person to whom the power can be delegated.

Seeking public opinion can be another way of curtailing the extensive powers of the delegated legislation and preventing its arbitrary exercise. Public opinion can be formulated by the publicity of the delegated laws.

In matters of technical nature, the opinions of experts is useful in formulating effective legislations and restricts vague and blanket legislations from being passed.

Furthermore, in the Re Delhi Laws Act[1] case, it was held by the apex court that the exercise of delegated law making power was invalid since the enabling act from which the authority was sourced had exceeded the constitutional limits in permitting the executive to repeal a law.

Similarly, in the case of Air India v. Nargesh Meerza[2], the Supreme Court struck down the delegated legislation on the grounds of being contrary to the provisions of article 14 of the constitution.

Apart from this, in the infamous case of Deepak Sibal v. Punjab University,[3] the Punjab University Rules for enrollment in the evening LL.B. course classes were considered discriminatory for restricting admission only to government and semi government employees. 

Conclusion

Delegated legislation as a source of law is becoming an essential component of the legal framework. With the advent of technology and rapidly changing society, delegated legislation is a useful instrument in ensuring the law and order situation in the country. The myriad benefits and needs of the delegated legislation makes us realise the importance of this source of law and enlightens us about the need to keep legislative powers under supervision.

References

  1. V. D. Mahajan, Jurisprudence and Legal Theory, 178 (5th ed, 1987)

[1] Re Delhi Laws Act Case, AIR 1951 SC 347

[2] Air India v. Nargesh Meerza, AIR 1981 SC 1829

[3] Deepak Sibal v. Punjab University, AIR 1989 SC 909

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