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According to the traditional theory, the function of the executive is to administer the law enacted
by the legislature, and in the ideal state the legislative powers must be exercised exclusively by
the legislatures who are directly responsible to the electorate...
Delegated Legislation:-
Meaning : Legislation by the executive branch or a statutory authority or local or other body
under the authority of the competent legislature is called Delegated legislation . It permits the
bodies beneath parliament to pass their own legislation .It 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.
Importance : There are several reasons why delegated legislation is important. Firstly, 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. Secondly, 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.
Thirdly, delegated legislation can deal with an emergency situation as it arises without having to
wait for an Act to be passed through Parliament to resolve the particular situation. Finally,
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
which Parliament had not anticipated when they enacted the Act of Parliament. Delegation of
Powers under the Indian Constitution : The Legislature is quite competent to delegate to other
authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of
Punjab , K.N. Wanchoo, the then justice of the Hon'ble Supreme Court dealt in detail the powers
of delegated legislation under the Article 312 of Indian Constitution. He observed: "There is
nothing in the words of Article 312 which takes away the usual power of delegation, which
ordinarily resides in the legislature.
The words "Parliament may by law provide" in Article 312 should not be read to mean that there
is no scope for delegation in law made under Article 312…." In the England, the parliament being
supreme can delegated any amount of powers because there is no restriction. On the other hand
in America, like India, the Congress does not possess uncontrolled and unlimited powers of
delegation. In Panama Refining Co. v. Rayans, the supreme court of the United States had held
that the Congress can delegate legislative powers to the Executive subject to the condition that it
lays down the policies and establishes standards while leaving to the administrative authorities
the making of subordinate rules within the prescribed limits. Criticisms : Delegated legislation is
not without its criticisms. The main defects of delegated legislation are as follows:-
• It has been suggested that by having delegated legislation to make and amend laws.
• Delegated legislation is the lack of publicity surrounding it. When law is made by statutory
instrument the public are not normally notified of it whereas with Acts of Parliament, on the other
hand, they are widely publicized.
One reason for the lack of publicity surrounding delegated legislation is because of the volume of
delegated legislation made and this result in the public not being informed of the changes to law.
There has also been concern expressed that too much law is made through delegated
legislation.
Delegation of powers:-
Meaning : Delegation of powers means those powers, which are given by the higher authorities
to the lower authorities to make certain laws, i.e., powers given by the legislature to
administration to enact laws to perform administration functions.
The law legislate by the administration with the powers given by the legislature is called
delegated legislation. Or we can say that when an instrument of a legislative nature is made by
an authority in exercise of power delegated or conferred by the legislature is called subordinate
legislation or delegated legislation. 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. Doctrinal of permissible limits Doctrine of permissible limit basically talks about the
powers of a legislature which can be delegated to the Administrative authorities a legislation
cannot delegate all its powers. The legislature has some limited powers which can be delegated.
The classic illustration of such a provision is found on the constitution itself. Usually, such a
provision is for a limited period. This provision has been vehemently criticized by Lord Hewart
and other jurists. It is nicknamed as the Henery VIII clause to indicate executive autocracy.
Henery VIII was the king of England in the 16th century and during his regime he enforced his
will and got his difficulties removed by using instrumentality of a service parliament for the
purpose of removing the difficulties that came in his way. According to the committees of
minister' powers, the king is regarded popularly as the impersonation of executive autocracy and
such a clause 'cannot but be regarded as inconsistent wih the principle of parliamentary
government'.
In Jalan Trading company v. Mill Majdur Sabha the supreme court was called upon to decide the
legality of such a clause. Section 37 (1) of the payment of Bonus Act 1965 empowered the
central government to make such orders, not inconsistent with the purpose of the act, is might be
necessary or expedient for the removal of any doubts or difficulties. Section 37 (2) made the
order passed by the central government under sub section (1) final. The court by a majority of 3:2
held section 37 ultra vires on the ground of excessive delegation in as much as the government
was made the sole judge of whether any difficulty or doubt had arisen, whether it was necessary
to remove such doubt or difficulties and whether the order made was consistent with the
provisions of the act. Again, the order passed by the central government was 'final'. Thus, in
substance, legislative power was delegated to executive authority, which was not permissible.
The minority, however, took a liberal view and held that the functions to be exercised by the
central government was not legislative functions at all but were intended to advance the purpose
which the legislature had in mind. In the words of Hidautllah, J. (as he then was): "parliament has
not attempted to set up legislation. I have stated all that it wished n the subject of bonus in the
act. Apprehending, however, that in the application of the new act doubts and difficulty might
arrive and not leaving there solutions to the court with the attendant delays and expense,
parliament have chosen to give power to the central government to remove doubt and difference
by a suitable order." It is submitted that the minority view is correct and after Jalan trading
company, the Supreme Court adopted the liberal approach. In Gammon India Ltd. V. union of
India a similar provision was held constitutional by the court. Distinguishing Jalan Trading
Company, the court observed: "in the present case, neither finality nor alteration is contemplated
in any order under section 34 of the act. Section 34 is for giving effect to the provisions of the act.
This provision is an application of the internal functioning of the administrative machinery." It,
therefore, becomes clear that after Jalan Trading Company, the court changed its view and
virtually overruled the majority judgment. In Patna University v. Amita Tiwari, the relevant statute
enabled the chancellor to issue the directions to universities "in the administrative and academic
interest."
In exercise of that power, the chancellor directed the university to regularize services of an
ineligible teacher "on compassionate grounds." When the action was challenged, it was sought to
be supported on the basis of "removal difficulties" clause. Holding that the "removal of difficulties"
clause had only limited application, the Supreme Court quashed the order. It is submitted that by
using a 'removal of difficulties' clause, the government "may slightly tinker with the act to round
off angularities and smoothen the joint or remove minor obscurities o make it workable, but it
cannot change or disfigure the basic structure of the act. In no case can it under the guise of
removing a difficulty, change the scheme and essential provision of the act" the committee on
ministers' powers rightly opined that it would be dangerous in practice to permit the executive to
change an act of parliament and made the following recommendations: "the use of the so called
Henery VIII clause conferring power on a minister to modify the power of on a minister to modify
the provision of acts of parliament should be abounded in all but most exceptional cases and
should not be permitted by parliament except upon special grounds stated in a ministerial
memorandum to the bill. Henery VIII clause should never be used except for the sole purpose of
bringing the act into operation but subject to the limitation of one year." Conclusion:- Delegated
legislation permits the body beneath parliament to pass their own legislature. Delegated
legislation is the legislation made by person or bodies other than parliament. That person or body
must be permitted by the parliament by an Act passed by the parliament. 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. 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. There are several reasons why delegated legislation is important. Firstly, 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.
Delegated legislation, also referred to as secondary legislation. Delegation of powers means
those powers, which are given by the higher authorities to the lower authorities to make certain
laws, In order to delegate its powers to any person or body, parliament has its own limitations.
Parliament cannot delegate all its powers to any Administrative authority. There are some
powers which cannot be delegated. Those powers which can be delegated can come into the
preview of the Doctrine of permissible limits.
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Bibliography
Books Referred:-
1. Takwani C.K. Lectures on Administrative Law. (Lucknow: Eastern Book Company) 2007. 2.
Joshi K.C. An Introduction to Administrative Law, (Allahabad: Central Law Publication) 2006.
Cases Referred and Citated:-
1. D.S. Gerewal v. state of Punjab, AIR 1960 SC 512.
2. Jalan Trading Company v. Mill Majdur Sabha, AIR 1967 SC691.
3. Gammon India Ltd. V. Union of India, (1974) 1 SCC 598.
4. Patna University v. Amita Tiwari, (1997) 7 SCC 198.
The author can be reached at: BhagwatiDanCharan@legalserviceindia.com
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