DELEGATED LEGISLATION8 min read

BY- YASHORI SHEKHAR

 Essentially, delegated legislation means the bulk of the legislation promulgated by the Executive. In two senses, this term is used. It is either when the subordinate agency exercises power as conferred on it by the legislature or when the subordinate agency, in accordance with the power conferred on it, makes subsidiary rules. In the first sense, it refers to subordinate legislation where, as it is subordinate to such legislation, the executive makes laws within the limits prescribed by the parent act. In the second sense, it refers to all the executive-framed rules, regulations (which are essentially made by corporations), by-laws, etc. An example may be given of the Essential Commodities Act wherein the list of essential commodities given in the statute are not exhaustive and the executive may add to it as and when it feels necessary.

Delegated legislation may be distinguished on the following grounds from administrative action—

(a) Publication- Usually, for the purposes of notification, legislative acts or orders must be published in the official gazette. Administrative orders, however, generally need not be published as they are applied only to a specific individual or a specific group of individuals.

(b) Procedure- In the case of legislation, it is only necessary to comply with the rules of procedure laid down in the statute, whereas, in the case of administrative action, the principles of natural justice must be observed, even if the parent statute is silent on that issue.

(c) Grounds for judicial review- As regards administrative action, Malafide may be pleaded as a ground, but several of the same may be used as a ground to challenge delegated legislation.

(d) Differences between legislative and non-legislative functions also come to the forefront when questions about sub-delegation arise.

The Committee on Ministerial Powers has, however, stated that the test for differentiating between the two is that the power to formulate general laws, rules, etc. is legislative, whereas the power to apply those rules and make orders in specific cases is administrative. This was stated in the test of generality and perspectivity as given in Union of India v. Cyanamide India Ltd. in which, as an administrative action, an order of the Central Government setting the maximum prices for the sale of certain bulk drugs was challenged on the basis of violating the principles of natural justice. On the other hand, the HC held that pricing here affects the rights of the general public and not just specific drug manufacturers and was, therefore, a piece of delegated legislation and would not apply the principles of natural justice. The application of this rule was rejected in K.I. Shepherd v. Union of India. The rights of specific bank employees have been affected by the termination of services due to the merger of certain banks.

 Need for legislative power to be delegated—

Factors contributing to the increase of delegated legislation-

(a) Increase in state functions due to the creation of a state of welfare instead of a state of laissez faire.

(b) It helps to save time for the legislature, which is usually overburdened these days.

(c) It reduces the legislature’s burden.

(d) If every piece of legislation consisted of all possible details, it would become too complex to be understood by the common man.

(e) It would be better to leave such tasks to specialists who are better placed to carry out such technical rules, regulations, etc.

(f) Consultations with persons who will be affected by the schemes may sometimes become necessary and the same may be done by the administration which operates at the grassroots level.

(g) Delegated legislation entails a great deal of flexibility and experimentation opportunities.

(h) Because of the changing circumstances, it may not be possible for the legislature to foresee the possible effects of an act each time.

Such legislation is required, in particular in times of emergency, such as war, armed aggression, natural disasters, etc., where extensive and complex legislative processes may not be possible.

Delegated Legislation Drawbacks-

(a) It has often been criticized by the legislature as being an abdication of its powers/tasks. Only the skeleton of the legislation is often laid down, leaving even the executive’s policies and principles to be formulated.

(b) It leads to arbitrariness as no guidelines are often laid down that may be used by the delegate to perform his duties and thus he has complete authority to do whatever he likes.

(c) Delegated legislation has been criticized as undemocratic because, as is the case with any statute, it is not discussed or criticized in Parliament. It may not reflect the general opinion of the public.

Thus, both at the legislative level by not allowing for excessive delegation and at the executive level by avoiding arbitrary use of power and application of mind, an effective system of checks and balances must be developed.

Delegated Legislation Restrictions

(a) Within India, –

The first important case relating to the limits of delegated legislation was that of Jatindra Nath v. Bihar Province, in which it was concluded that no delegation other than conditional legislation may exist. The general piece of legislation is made by the legislature, as per the principle of conditional legislation, and it is to be enforced by the executive subject to the fulfillment of a condition. Whether or not the law will take effect will depend on whether or not the administration has met that requirement. However, only at the time of independence was this principle followed.

(ii) A fresh approach was adopted later in the Delhi Laws Act case. After independence, India’s states were divided into three categories: Part A(British India provinces), Part B(princely states), and Part C. (smaller territories that were previously governed by Governor Generals). The States of Part A and Part B had their own legislatures to make laws, but the Central Government controlled the States of Part C. Therefore, due to time constraints, the Parliament passed the Part C States (Laws) Act, 1950, by virtue of which the Central Government could extend to a Part C State any law in force in a Part A State with amendments as and when required and thus could also repeal/amend the provisions of any law, provided that it is not a law enacted by the Centre that is in force in a Part C State to the ext. All seven judges gave different views, but agreed on two main points, i.e. taking into account the practical need for delegated legislation, the same must be continued and since the legislature in India derives power from a written constitution, there must be certain limits on the ability to delegate (there should not be any excessive delegation). It was therefore held, keeping the same in mind, that the part of the law that allowed it to repeal/amend provisions of laws prevalent in a Part C state was bad and should therefore not be allowed (excessive delegation). Also, when the law is being made applicable to Part C state subject to modifications, the modifications must not be such that they change the underlying policy of the law itself. Furthermore, only those laws which are listed in the Union and which are applicable to the States of Part A and Part B must be extended to the States of Part C in such a way that the legislatures of the States may not abdicate their legislative responsibilities. In this case, it was also stated that the legislature may not delegate its fundamental policy formulation functions, etc.

In Gwalior Rayon Co. v. Asst. (iii) Commissioner of Sales Tax, it was held that whenever the legislature delegates authority to an authority, it must lay down the fundamental policy, principles or guidance standards to be followed by that authority. Matthew J, however, in his dissenting judgment. It stated that as long as Parliament retains its power to repeal the delegation provision, its responsibilities are not abdicated (stated in the previous case by Attorney General). However, this view is not appropriate because, after conferring such authority, keeping in mind the current political scenario, the Parliament may not be able to repeal the delegating statute because most current executives exercise almost complete power over the legislature as they themselves have a majority in the legislature.

Laying processes and their effectiveness

Since it is the legislature that delegates, it can conduct a better check. At the moment the rules are being made, the first step comes into the picture. In accordance with Rule 70 and Rule 65 of the Lok Sabha and Rajya Sabha Rules of Procedure respectively, any form of delegated legislation must first be introduced in Parliament as a bill.Such a proposal must be accompanied by a memorandum setting out both the reasons for the delegation and the scope of the delegation. This will allow the legislature to discuss and pose questions about the bill at length. After the rules have been made, the second step comes into the picture. With regard to the laying procedure, that is. In all common law countries, a laying procedure is generally provided for.It ensures that all such regulations are placed for discussion before the house and informs the legislature as to which regulations have been made as part of delegated legislation. In general, the laying procedure occurs under the parent statute. The laws, regulations, etc. are laid before the house for a period of 30 days and if they violate the provisions of the constitution or the parent statute, they can be annulled.

Judicial control of delegated legislation Delegated legislation

1. Judicial control is generally exercised at the time of delegation and legislative power is exercised after such delegation, with the help of committees, etc.

2. Delegated legislation can be reviewed by the courts on the grounds discussed as follow-up.

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