ASSIGNMENT NO# 2

Submitted by: Swaira Fariyad

Section: 9th CB
Roll no. 19011624-068
Topic: Delegated Legislation
Subject: Administrative Law
School of Law, University of Gujrat
DELEGATED LEGISLATION

 Introduction:
One of the most significant developments of the present century is the growth in the legislative
powers of the executive. The development of the legislative powers of the administrative authorities
in the form of the delegated legislation occupies very important place in the study of the
administrative law. There is no such general power granted to the executive to make law; it only
supplements the law under the authority of legislature. Such type of power is known as delegated
legislation.
The underlying object of parliamentary control is to keep watch over the rule-making: - authorities
and also to provide an opportunity to criticize them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made.

Understanding Delegated Legislation:

According to Jain and Jain,
Delegated legislation can be seen in two ways: either as the exercise of legislative power by a
subordinate agency, or as the actual rules created by this subordinate authority based on the power
granted by the legislature. The term "subordinate legislation" is used because the authority making
these laws is subordinate to the legislature and must stay within the limits set by the statute.

 History of Delegation of Powers: Pre – constitutional Position:

The history of delegation of powers can be traced from the charter stage of 1833 when the East
India Company was regaining political influence in India. The of 1833 vested the legislative powers
exclusively in Governor – General – in council, which was an executive body. He was empowered
to make laws and regulations for repealing, amending or altering any laws or regulations, which
were in force for all persons irrespective of their nationality. In 1935 the Government of India Ac,
1935 was passed which contained an intensive scheme of delegation. The report of the committee
on ministers’ powers was submitted and approved which fully established the case for delegation of
powers and delegation of legislation was regarded as inevitable in India.

 PERMISSIBLE AND IMPERMISSIBLE DELEGATED LEGISLATION

Permissible Delegated Legislations:
This type of delegations includes those which Executive may exercise its power to legislate.

1. Supplying Details:
If the legislative policy is formulated by the legislature, the function of supplying details may be
delegated to the executive for giving effect to the policy. e.g. Section 3 of the All India Services
Act, 1951 authorizes the Central Government to make rules to regulate conditions of service in the
All India Services.

2. Inclusion:
Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to some areas
and classes of persons, but empowers the Government to extend the provisions thereof to different
territories, persons or commodities, etc. e.g., the Transfer of Property Act, 1882 was made
applicable to the whole of India except certain areas, but the Government was authorized to apply
the provisions of the Act to those areas also.
Exclusion: There are some statutes which empower the Government to exempt from their operation
certain persons, territories, commodities, etc.

3. Suspension:
Some statutes authorize the Government to suspend or relax the provisions contained therein. e.g.
under Section 48(1) of the Tea Act, 1953, the Central Government is empowered under certain
circumstances to suspend the operation of all or any of the provisions of the said Act.

4. Application of existing laws:

Some statutes confer the power on the executive to adopt and apply statutes existing in other States
without modifications (with incidental changes) to a new area. There is no unconstitutional
delegation in such cases, as the legislative policy is laid down in the statute by the competent
legislature.

5. Modification:
Sometimes, provision is made in the statute authorizing the executive to modify the existing statute
before application. This is really a drastic power as it amounts to an amendment of the Act, which is
a legislative function, but sometimes, this flexibility is necessary to deal with local conditions.

6. Framing of Rules:
A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided
that the rules, bye-laws and regulations are required to be laid before the legislature before they
come into force and provided further that the legislature has power to amend, modify or repeal
them.

Impermissible Delegated Legislations:

The following functions, on the other hand, cannot be delegated by the Legislature to the Executive:

1. Essential legislative functions:

Even though there is no specific bar in the Constitution of India against the delegation of legislative
power by the legislature to the executive, it is now well-settled that essential legislative functions
cannot be delegated by the legislature to the executive. In other words, legislative policy must be
laid down by the legislature itself and by entrusting this power to the executive, the legislature
cannot create a parallel legislature.

2. Repeal of law:
Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the
executive to repeal a law is excessive delegation and is ultra vires.

3. Modification:
Power to modify the Act in its important aspects is an essential legislative function and, therefore,
delegation of power to modify an Act without any limitation is not permissible.

4. Exemption:
The aforesaid principle applies in case of exemption also, and the legislature cannot delegate the
power of exemption to the executive without laying down the norms and policy for the guidance of
the latter.
5. Removal of difficulties:
Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a
Henry VIII clause and thereby delegate essential legislative functions to the executive, which could
not otherwise have been delegated. 6.Retrospective operation: The legislature has plenary power of
law making and in India, Parliament can pass any law prospectively or retrospectively subject to the
provisions of the Constitution. But this principle cannot be applied in the case of delegated
legislation.

 Reasons for the Growth of Delegated Legislation:

1. Pressure on Parliamentary Time:

The sheer volume of legislative matters makes it challenging for the legislature to discuss every
detail thoroughly. Hence, the legislature outlines the general policy, and the executive fills in the
details through rules and regulations. Delegating power is seen as a practical way to manage the
extensive workload and meet the demands of modern public opinion.
2. Technicality:

In cases where the subject matter is highly technical, lawmakers might lack the expertise needed.
Delegating legislative power to experts in certain fields, such as gas, atomic energy, or
pharmaceuticals, ensures that these complex matters are appropriately addressed.

3. Flexibility:
Legislative enactments can't anticipate all possible situations. Delegated legislation provides a
quick way for the executive to respond to unforeseen circumstances, avoiding the slow and
cumbersome process of formal amendments. For instance, clauses allowing for the 'removal of
difficulty' empower the administration to address challenges through delegated powers.

4. Experimentation:
Delegated legislation allows the executive to experiment with different approaches. This flexibility
enables the quick application of lessons learned, leading to necessary adjustments in the
implementation of provisions. For example, experimenting with regulations in road traffic matters
can lead to effective changes.

5. Emergency Situations:
During emergencies, quick action is crucial. Delegated legislation becomes a convenient and rapid
solution when the legislative process is not equipped to provide urgent measures. In times of war,
epidemics, or economic crises, the executive is granted special powers to handle the situation
effectively.

6. Complexity of Modern Administration:

The intricate nature of modern administration and the expanded role of the state in economic and
social matters necessitate new forms of legislation. Delegated legislation becomes essential to
regulate private trade and business, adapting to the evolving needs of modern administrative
practices.

Conclusion:
In a nutshell, delegated legislation has become crucial in modern governance. It helps manage the
overwhelming workload of lawmakers, especially when dealing with technical or urgent matters.
Delegating powers allows for quick responses to unforeseen situations and encourages
experimentation for better outcomes. While parliamentary control is vital, finding a balance ensures
that delegated legislation remains a practical and effective tool in addressing the complexities of
contemporary administration.