JAMIA MILLIA ISLAMIA, NEW DELHI

FACULTY OF LAW

ASSIGNMENT FOR ADMINISTRATIVE LAW

TOPIC : NEED FOR DELEGATED LEGISLATION

SUBMITTED TO: MR. VINOD CHAUHAN

(Faculty, Administrative Law)

PRESENTED BY:

NAME : ASHAY KAUSHIK

ROLL NO. : 14

SEMESTER: III rd Sem, 3rd Year

COURSE: B.A.LL.B (Hons.)

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 TABLE OF CONTENTS

Sr. No. TOPIC Pg. No.

1. ACKNOWLEDGEMENT 3

2. INTRODUCTION 4

3. DELEGATED LEGISLATION 5

4. NEED FOR DELEGATED LEGISLATION 6-9

5. CONCLUSION 10

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 ACKNOWLEDGEMENT

The success and final outcome of this assignment required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
assignment. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I respect and thank Mr. Vinod Chauhan, for providing me an opportunity to do the project work
on the topic “Need for Delegated Legislation”. Working upon the topic I acquired a great deal
of understanding and clarity of thought over this aspect of Administrative Law. Provided all
support and guidance without which this assignment could not be duly concluded. I am
extremely thankful to him for providing such a nice support and guidance.

I’d also like to thank my parents for their constant support and co-operation through this and all
phases of my life.

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 INTRODUCTION

With the growth of the administrative process in the 20 th Century, administrative rule- making or
delegated legislation has assumed tremendous proportions and importance. Today, the bulk of
the law which governs people comes not from the legislature but from the chambers of the
administrators. The fact is that the direct legislation of the Parliament is not complete, unless it is
read with the help of rules and regulations framed thereunder; otherwise by itself it becomes
misleading.

Delegated legislation also referred to as secondary legislation, is legislation made by a person or

body other than Parliament. Parliament, through an Act of Parliament, can permit another person
or body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act.

The function of delegated legislation is it allows the Government to amend a law without having
to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to
make technical changes to the law, such as altering sanctions under a given statute. Also, by way
of an example, a Local Authority have power given to them under certain statutes to allow them
to make delegated legislation and to make law which suits their area. Delegated legislation
provides a very important role in the making of law as there is more delegated legislation enacted
each year than there are Acts of Parliament. In addition, delegated legislation has the same legal
standing as the Act of Parliament from which it was created.

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 DELEGATED LEGISLATION

Black’s Law Dictionary defines ‘Subordinate Legislation’ as:

“Legislation that derives from any authority other than the Sovereign Power in a state and that
depends, for its continued existence and validity, on some superior or supreme authority.”

Delegated Legislation or delegation of powers means the powers passed on by the higher
authority to the lower authority to make laws. Delegated legislation, also referred to as secondary
legislation, is legislation made by a person or body other than Parliament. Parliament, through an
Act of Parliament, can permit another person or body to make legislation. An Act of Parliament
creates the framework of a particular law and tends only to contain an outline of the purpose of
the Act. By Parliament giving authority for legislation to be delegated it enables other persons or
bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary
legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated
legislation. The legislation created by delegated legislation must be made in accordance with the
purpose laid down in the Act.

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses:

(a) Exercise by a subordinate agency of the legislative power delegated to it by the

legislature, or
(b) The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the power conferred on it by the legislature.

The concept can be further substantiated with the help of an example. The Parliament of UK
itself made the Road Traffic Act, 1930, and so the legislation is original (rather than
delegated). Section 30 of that Act provides that, “the Minister (of Transport and Civil
Aviation) may make regulations as to the use of motor vehicles, their construction and
equipment.” Accordingly the Minister made the Motor Vehicles (Construction and Use)
Regulations, 1955. The regulations were made by someone other than Parliament and are,
therefore, delegated (rather than original) legislation.

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 NEED FOR DELEGATED LEGISLATION

In the present day context of free market economy, there has been a tremendous growth of
administrative and regulatory forces which has made outsourcing of law making power to the
administrative authorities a compulsive necessity. Therefore, legislature limits its functions to
merely law down the Polices and guidelines of the law, outsourcing all ancillary law making
powers to the administrative authorities to make relevant laws to the needs of the people.1

Delegated legislation is not a new phenomenon. Going back to the history one can find the
Statutes of Proclamation, 1539 under which Henry VIII was given extensive powers to legislate
by proclamations. The exigencies of the modern state, especially social and economic reforms,
have given rise to delegated legislation on a large scale, so much so that a reasonable fear arises
among the people that they are being ruled by the bureaucracy.2

There are several reasons why delegated legislation is important. It avoids overloading the
limited Parliamentary timetable as delegated legislation can be amended and/or made without
having to pass an Act through Parliament, which can be time consuming. Changes can therefore
be made to the law without the need to have a new Act of Parliament and it further avoids
Parliament having to spend a lot of their time on technical matters, such as the clarification of a
specific part of the legislation. Delegated legislation allows law to be made by those who have
the relevant expert knowledge. By way of illustration, a local authority can make law in
accordance with what their locality needs as opposed to having one law across the board which
may not suit their particular area. A particular Local Authority can make a law to suit local needs
and that Local Authority will have the knowledge of what is best for the locality rather than
Parliament. It enables the Government to make a law without having to wait for a new Act of
Parliament to be passed; dealing with an emergency situation as it arises without having to wait
for an Act to be passed through Parliament to resolve the particular situation. Delegated
legislation can be used to cover a situation that Parliament had not anticipated at the time it
enacted the piece of legislation, which makes it flexible and very useful to law-making.
Delegated legislation is therefore able to meet the changing needs of society and also situations
1
I.P.Massey, Administrative Law, Eastern Book Publication (Ninth Edition).
2
Agricultural Market Committee v. Shalimar Chemical Works, (1997) 5 SCC 516.

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which Parliament had not anticipated when they enacted the Act of Parliament. Delegated
legislation plays a very important role in the process of making of law as there is more delegated
legislation each year than there are Acts of Parliament. In addition, delegated legislation has the
same legal standing as the Act of Parliament from which it was created.

The basis of need matrix of administrative rule making lies in the fact that the complexity of
modern administration are so baffling and intricate and bristle with details, urgencies, difficulties
and a need for flexibility that our massive legislatures may not get off to start if they must
directly and comprehensively handle legislative business in all their plentitude, proliferation,
particularization. Therefore, the delegation of some part of a legislative power becomes a
compulsive necessity for viability. If the 525 odd parliamentarians are to focus on every
minuscule of legislative tail leaving nothing to subordinate agencies the annual output maybe
both unsatisfactory and negligible. Law making is not a turnkey project, readymade in all detail
and once the situation is grasped, the Dynamics of delegation easily follows. Fromm the above
generalization, the factors leading to the growth of administrative rule making may be
particularized as follows:

1. Legislation on ever-widening fronts of a modern welfare and service state is not possible
without the technique of delegation. Even if today parliament sit all the 365 days in a
year and all the 24 hours it may not give the quantity and quality of law which is required
for the proper functioning of a modern government. Delegated Legislation reduces the
burden of already overburdened Legislature by enabling the executive to make or alter
the law under the authority of Legislature. Thus, this helps the Legislature to concentrate
on more important matters and frame policies regarding it.Therefore delegation of rule
making power is a compulsory necessity and also gives an advantage to the executive in
the sense that the parliament with an onerous legislative time schedule may feel tempted
to pass skeleton legislation with the detail to be provided by the making of rules and
regulations.

2. Today legislation has become highly technical because of the complexities of a modern
government. It allows the law to be made by those who have the required knowledge and

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 experience. For instance, a local authority can be permitted to enact laws with respect to
their locality taking into account the local needs instead of making law across the board
which may not suit their particular area. Therefore it is convenient for the legislature to
confine itself to policy statements only as legislatures sometimes are innocent of legal
and technical skills and leave the law making sequence to the administrative agency.

3. Ordinary legislative power suffers from the limitation of lack of liability and
experimentation. A law passed by Parliament has to be in force till the next session of
parliament when it can be replaced therefore in situation which requires adjustments
frequently and experimentation, administrative rulemaking is only answer.

4. Situations where crisis legislation is needed to meet emergency situations sensitive rule
making is a necessity because the ordinary rule making process is overburdened with
constitutional and administrative difficulties and involves delay. The process of delegated
legislation also plays a significant role in an emergency situation since there is no need to
wait for particular Act to be passed through Parliament to resolve the particular situation.

5. Delegated legislation often covers those situations which have not been anticipated by the
Parliament during the time of enacting legislation, which makes it flexible and very
useful to law-making. Delegated legislation is, therefore, able to meet the changing needs
of society and also situations which Parliament had not anticipated when they enacted the
Act of Parliament.

6. In some situations it is necessary that the law must not be known to anybody till it comes
into operation. For example, in case of imposition of restrictions on private ownership it
is necessary that the law must be kept secret till it comes into immediate operation
otherwise people could arrange their property rights in such a manner so as to defeat the

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 purpose of the law. This secrecy can be achieved only through administrative action
because the ordinary legislative process is always very open.

7. Where government action involves discretion, that is expansion of public utility services,
administrative rule making is the only valid preposition.

8. Today there is a growing emergence of the idea of direct participation in the structural
equation of law by those who are supposed to be governed by it because indirect
participation through their elected representative more often proves a myth. Therefore
administrative rule making is a more convenient and effective way and provide for this
participation.

One make go on multiplying the factors responsible for the growth of administrative rulemaking,
yet the list may not be exhaustive. It will suffice to say that the technique of administrative
rulemaking is now regarded as useful, inevitable and indispensable.

However one must not lose sight of the fact that though the technique of administrative
rulemaking is useful and inevitable yet constitutional legitimization of unlimited power of
delegation to the executive by the legislature, may, on occasion be subversive of responsible
government and erosive of Democratic order.

Therefore if the technique of administrative rulemaking is to serve it's laudable task, the norms of
the jurisprudence of delegation of legislative power must be dutifully observed. These storms
include a clear statement of policy, procedural safeguard and control mechanism.

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 CONCLUSION

Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate its
power to other bodies or persons. The statute which delegates such power is known as Enabling
Act. By Enabling Act the legislature, lays down the broad guidelines and detailed rules are
enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution.
It exists in form of bye rules, regulations, orders, bye laws etc.

There are many factors responsible for its increase: Parliament and State Legislature are too busy
to deal with the increasing mass of legislations, which are necessary to regulate daily affairs.
Modern legislation requires technicality and expertise knowledge of problems of various fields,
our legislators, who are politicians are not expected to have such knowledge. Subordinate
legislations are more flexible, quickly and easily amendable and revocable than ordinary
legislation, in case of failure or defect in its application. When contingencies arise which were
not enforceable at the time of making it, subordinate legislation can pass an act quickly to handle
them. Quick, effective and confidential decisions are not possible in body of legislatives. So,
executives are delegated with power to make rules to deal with such situations. These are the
main factors, besides many others, for the fast increase in delegated legislation today.

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