DELEGATED LEGISLATION

Delegation has been defined by Black’s Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power
or to act as his agent or representative. ‘Delegated legislation’ means exercising of
legislative power by an agent who is lower in rank to the Legislature, or who is subordinate
to the Legislature. Delegated legislation, additionally alluded to as an auxiliary legislation, is
an enactment made by an individual or body other than Parliament. Parliament, through an
Act of Parliament, can allow someone else or some body to make enactment.

According to Sir John Salmond, “Subordinate legislation is that which proceeds from any
authority other than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was an expression
which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a
shield for Executors and a provocation to the Constitutional Jurist.

According to M.P Jain, this term can be used in two senses:

1. Exercise by subordinate agency or agency that is lower in rank to legislature
delegated to it by the Legislature.
2. The Subsidiary rules made by the Subordinate Authority in the execution of the
power bestowed on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation.

Delegated legislation under the Constitution of India:

Although the concept of delegated legislation was not mentioned specifically in the Indian
Constitution it can be understood by interpreting Article 312 of the given Constitution. This
Article gives right to the Rajya Sabha to open a new branch of All India Service with a
majority of two-thirds majority vote. This means that some powers of legislation will be
delegated to the new recruiter of All India Service. There are many cases through which
delegated legislation under the constitution of India can be understood.

Constitutionality of delegated legislation:

It basically means the limits that are permissible within a Constitution of a country through
which Legislature with all his right can delegate its power of rule making to other agencies of
administration. The aim of extending the power of the government is to handle
socio-economic problem.
Position in India:
The position and Constitutionality of delegated legislation in India can be seen in various
cases. It is divided into two phases i.e., before independence or we can say it as
pre-independence and post-independence.

Pre Independence:
In Queen v. Burah, only Conditional Legislation has been validated by the Privy Council and
therefore delegated legislation is not permitted as per its reasoning. The administration of
civil and criminal justice of a territory can be vested in the hands of those officers who were
appointed by the Lieutenant-Governor from time to time.
The Privy Council has stated that it is better to take help from the subordinate agency in
framing the rules and regulations that are going to be the part of the law and giving another
body the essential legislative features that has only given to the Legislature through the
Constitution. He also stated about the essential legislative function that included in
determining the legislation policy.

In King v. Benori Lal Sharma, Condition legislative was again applied by the Privy Council,
the same as in the case of Queen v. Burah. In this case the validity of the Emergency
Ordinance given by Governor-General of India was challenged inter alia. It was challenged
on the ground that he is taking the power of the Provincial Government. He was setting up
special criminal courts for particular kind of offences but for the settling of any court, power
has been given only to the Provincial Government. The judicial committee held that this is
not delegated legislation. Privy Council also held that it is an example of an uncommon
legislative power by which the local application of the provision of State determined by the
local administrative body when it is necessary.

Post Independence:
The Constitution of India does not provide the same position as the prominent British
Parliament provide to the delegation of legislative powers and also how far delegation is
permissible has got to be confirmed in India as a matter of construction from the express
provisions of the Indian Constitution. It cannot be said that an exhaustible right of delegation
is inherited in the legislative power itself.
In the case of Raj Narain Singh v. Chairman, Patna Administration Committee Air,[9] the
Supreme Court of India upheld the delegation of power given to the executive by the
legislature.
Lachmi Narain v. Union of India- It was held in this case that the notification issued by the
Central Government is beyond its power conferred on it by Section 2 of the Union Territories
(Laws) Act,1950 and in consequence of any type of notification issued by the Central
Government is invalid and ineffective.

Causes of its growth: from book

Advantages of Delegated legislation:

1. Reduce the workload of Parliament: The Parliament has to pass several legislation
within a short span of its life. It has to take such type of intensive work that it can
hardly enact the law provisions in detail. If the Parliament devotes its time in laying
down minor and subsidiary detail of each and every legislation by making all the rules
required for that legislation then it will take too much time and in that time it can only
deal with a small amount of Act in detail. It is lengthy, time consuming process and
also it is expensive to operate Parliament process. It cannot cope up with the growing
needs of legislation. So there arises the need to overcome that load and it can be
possible only through delegating ones legislative authority to the subsidiary ones or
the executives. Delegated authorities which an expert resides are more appropriate
to make laws and to meet the needs of the community. It saves ample amount of time
 of the Parliament because it gives the members a chance to create or to make rapid
changes in small items.
2. Technical Expertise: Today’s world has become very technical and complicated by
the introduction of modern means and advancement in technology. So it is necessary
for the members of parliament to know each and every field but one cannot be the
master of all fields. Therefore, it is difficult for the members of Parliament to have all
knowledge needed for making laws in various fields like on controlling technology,
ensuring environmental safety, dealing with various industrial problems which need
basic knowledge. Also, Parliament is not a forum which can make laws on
administrative and technical details but it is more concerned with social issues and
the rule of law. Therefore, it is thought that it is better for the parliament to debate on
the broad topic or the main topic and leave the rest detail for the fulfilment by the
expert of that particular field. Thus, delegates authorities with extra skills, experience,
and knowledge are more suitable for making law.
3. Decentralized decision making: The local councils are more suited to make laws for
their constituencies as they better know the condition of their constituencies than any
other. These local bodies can make better laws for their area that a Parliament
cannot do so because they knew their locals need, whats they want? And it is very
essential to know a person for whom we are making laws. The Parliament makes the
laws for broad principle while its delegate handles the local principle. This separation
of power helps in the smooth running of the legislature.
4. Enables flexibility: In delegated legislation, Parliament makes law in broader skeletal
form and the executive had to fill the minor details. So these minor details can be
changed immediately without making any amendment in the Parliament. Therefore, it
is flexible and the legislation made by this can be best for the needs of modern
public.
5. Experimental basis: It can be used as an experimental basis. It allows in quick
lawmaking. If a law made for some circumstances and it does not fulfill the condition
for which it has made then it can be changed and a new law can be made at the
place of the older one. And if this law gets fitted according to the situation then this
law will prevail in that area. In this way, it is an advantage in the view of modern
public.
6. Emergencies: Delegated Legislation allows for rapid action in case of an emergency
but Parliament take too much time in taking any decision. It has to call for a session
then the Parliamentarian discusses the emergency topic. And after that, if they all
conclude then only that act would have passed. In some cases, the Parliament have
not enough time to accurately make a piece of legislation and a quick and safety
legislation is required for the safety of a nation. For example, in the UK, the
Prevention of Terrorism Act was created as delegated legislation and now this act
has added a new prohibited group to the terrorism. Therefore, it is more appropriate
for the delegate authorities to make legislation and deal with it.

Disadvantages:

1. Delegated legislation has to depend upon the legislature for delegation.

2. Delegated legislation has weakened the legislative control executive.
3. The executive has become stronger with delegated legislation, it can easily encroach
the rules and regulation of legislation by making rules.
 4. This concept opposes the rule of Separation of Power.
5. Lack of relevant discussion before framing the law.
6. It is not stable in nature, it keeps on fluctuating on the ground of Political changes.

Types of Delegated legislation: from the book

Classification of Delegated legislation:

1. Orders in Councils: This type of Delegated legislation can be given by Queens or

the Privy Councils. This Delegated legislation allows the Parliament to make laws
without going through the Parliamentary proceedings. Today, its main use is that it
gives legal effect to European directives. When the order issued under the privilege
of the Queen or the Crown such order is subject to review by the courts. But order
issued by the Parliament may or may not be subject to review by the courts as it is
made within the prescribed limits Act of Parliament. In both the case the question can
arises that if this legislation is the same as the Executive legislative. The answer to
this question is yes, it is equivalent to executive legislative. There is no major
difference between these orders and Executive legislative almost they both are
same. The meeting of Privy council in such case could simply means a meeting of
some Privy Councillors which includes three or four ministers, President, Councils
and Clerk of Privy Councils. This shows that this order is issued by the Executive
who exercises powers of the Council.
2. Rules of the Supreme Court and the County Courts: The Parliament by statutes
bestow some persons or authority with the power to make laws for a specific
purpose. But it is different in England where a Court has been given wide power to
make laws. This task of making law has been entrusted upon the Rules Committee of
the Supreme Court and the County Courts. Entrusting Judicial branch to control its
Procedural law to a great extent has an advantage as it is given to that authority who
knows better about it than any person. Procedure and cost that are drawn by Rules
Committee of County Courts deals by the County Courts itself. Such rules are not
subject to the control of Parliament. When these rules used to come into force? It
comes into force when the Lord Chancellors with the consent of the Rules Committee
of the Supreme Court confirms it.
3. Departmental or Executive instructions or regulations: When the power of
legislature directly delegated to the administration such as a Board, Ministers or a
Committee, then the exercise of that given power results in delegation through
Departmental or Executional Instructions or Regulations. Sometimes very wide
powers are given to the administration or the delegated person. But this wide
delegation of legislation is not accepted by the judiciary as it is difficult for them to
control administrative action. There is extensive use of this delegated legislation in
today’s world. Nowadays only the broad line of making legislation is in the hands of
Parliament and the rest power is given to the Administrator.
4. Delegated legislation by laws: It can be given in two ways, firstly, it can be given by
laws of autonomous bodies, e.g., Corporation and secondly, it can be given by-laws
of a local authority.
(a) By-laws of autonomous bodies: These autonomous bodies have got the
power to pass by-laws on matters affecting them and other people in that
locality or people residing in a particular area. For example, they can make
 laws as public utility authorities for light, water, etc. Usually, these authorities
are given the power to make rules for regulating their working. Such by-laws
are subject to judicial review. It can be reviewed to check that it must not be
ultra vires the Parent Statute. These autonomous bodies have the power to
frame rules for themselves. One more example of this autonomous body is an
association of Employers. The rules of these association are termed as
voluntary but this is not so in reality. It is fictitious as in its effect these rules
are binding upon members like other rules such as rules of a professional
association, industrial organisation, etc.
(b) By-laws of the local authority: Parliament has the power to make new local
bodies or it can alter the existing body. It empowers such body with powers to
make by-laws for themselves for specific purposes. These authority exercises
excess power for public health, safety, and for good rule and governance.
These by-laws incur a penalty on its breach.
5. Conditional Legislation : The rules are framed or designed by the legislature but to
implement or enforce it, is done by the executive organ, so executive has to look that what
all conditions need to be fulfilled to bring it in operation. If all conditions are satisfied then it is
well and good otherwise notice will be issued to bring the law into operation and it is known
as Conditional Legislation.

Various kinds of control under delegated legislation: from the book