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Delegated Legislation

Introduction

The Constitution of India grants the power to the legislature to make laws for the country.
However, due to the multifarious activities of a welfare state, it becomes impractical for the
legislature to perform all functions.

In such cases, delegated legislation comes into play. Delegated legislation is the process by
which the executive is given the authority by the legislature to make laws in order to
implement and administer the requirements of primary legislation.

While delegation of legislative powers is necessary, it is crucial to maintain control over the
process to prevent abuse of power.

Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and
administer the requirements of the primary authority. It can be said that it is the law made by
any person or authority under the power of parliament. It is also known as subordinate
legislation in administrative law. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament,
Parliament has full authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline of the
purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement
then sanctions can also be altered by the delegated legislation as the technology changes. It is
believed that when such authority is delegated by the Parliament to any person or authority it
enables such person or the authority to provide more detail to the act of the Parliament.
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For example, the local authority has power conferred by the superior one to make or amend
laws according to the requirement of their respective areas. The delegated legislation plays a
very important role as the number of them are more than the acts of the Parliament. It has the
same legal standing as the act of Parliament from which it is created.

Meaning of Delegated Legislation

Delegated legislation, also known as subordinate or secondary legislation, refers to laws

made by individuals or bodies authorized by the legislature to create detailed regulations
under a specific Act of Parliament. Delegated legislation derives its authority from an
enabling Act passed by the legislature. The Act grants the responsible authority the power to
create regulations within the scope defined by the primary legislation.

Forms of Delegated Legislation

 Statutory instruments: They are the one which is formed by the government. For
example – a parent act is an act which permits the parliament for making the law.
 Orders in the council: Orders in the council are generally made by the government
when there is a need and it can affect the public at large as well as an individual.
 By-Laws: They are created by the local authority which is approved by the Central
Government. There are many reasons for the delegation of the legislature. The
parliament does not have that much time to deliberate and debate about every topic.
Therefore, delegated legislation helps in making laws rapidly than the Parliament and
the procedure of the Parliament is also very slow as the bills for every law needs to
pass from every stage. Further, it is also believed that the Member of Parliament does
not possess the technical ability which is required to make law.

For example – making any law regarding taxation requires knowledge as well as experience
which can be done by the person who is professional in that field. In the case of welfare
purpose, the local authority can understand the needs of the people in his area more
effectively than others. The democratic bodies have many important powers for the
delegated legislation which can be easily used for updating the legislation according to the
requirement which leads to social welfare.
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Factors responsible for the rapid growth of Delegated Legislation

Pressure on Parliament – The number of activities in states is expanding which requires law
and it is not possible for the Parliament to devote sufficient time to every matter. Therefore
for this, the Parliament has made certain policies which allows the executives to make laws
accordingly.

Technicality – Sometimes there are certain subject matters which requires technicality for
which there is a requirement of the experts who are professional in such fields and members
of Parliament are not experts for such matters. Therefore, here such powers are given to
experts to deal with such technical problems like gas, atomic, energy, drugs, etc.

Flexibility – It is not possible for the Parliament to look after each contingency while passing
an enactment and for this certain provisions are required to be added. But the process of
amendment is very slow as well as the cumbersome process. Thus, the process of delegated
legislation helps the executive authority to make laws according to the situation. In the case
of bank rate, policy regulation, etc., they help a lot in forming the law.

Emergency – At the time of emergency, it is not possible for the legislative to provide an
urgent solution to meet the situation. In such case delegated legislation is the only remedy
available. Therefore, in the times of war or other national emergencies, the executives are
vested with more powers to deal with the situation.
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Advantages and Disadvantages of Delegated Legislation

In the grand scheme of legislative procedure, delegated legislation comes with its unique set
of advantages and disadvantages. This mixed bag of benefits and challenges warrants a
deeper dive to appreciate its role and implications fully.

Advantages of Delegated Legislation

Some of the advantages of delegated legislation are as follows:

 Time Efficiency: One of the primary benefits of delegated legislation is that it aids in
efficient time management. The parliament often finds itself inundated with a
multitude of issues that require legal attention. Delegating some legislative powers
allows for a smoother, quicker process of law-making.
 Flexibility: Delegated legislation provides a higher degree of flexibility compared to
primary legislation. Given its ability to be modified, expanded, or revoked relatively
easily, it can be tailored to meet changing needs and circumstances more efficiently.
 Expert Input: Certain domains demand specific technical knowledge that the
parliamentarians may not possess. Delegated legislation enables experts in specific
fields to contribute to law-making, thereby ensuring laws are comprehensive,
practical, and well-informed.
 Prompt Response: In times of crisis or emergency, swift legislative action becomes
crucial. Delegated legislation allows for the prompt formulation and implementation
of laws without having to wait for the parliamentary process, ensuring a swift
response to immediate issues.
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Disadvantages of Delegated Legislation

While delegated legislation comes with its strengths, it is not without its pitfalls.

 Risk of Power Imbalance: Delegating legislative powers to the executive or other

bodies may lead to an imbalance of power. It could potentially result in the
overstepping of boundaries, thus blurring the lines of separation of powers, a
fundamental principle of democracy.
 Lack of Public Scrutiny: As delegated legislation is often crafted behind the closed
doors of administrative or executive bodies, it may lack the public scrutiny integral to
the democratic process. This could lead to laws that may not entirely align with public
interest or sentiment.
 Potential for Overlegislation: There is a risk that bodies vested with legislative power
may overuse or misuse this power, leading to overlegislation. This can result in an
excessive number of rules and regulations, making the law too complex and difficult
for the common citizen to navigate.
 Lack of Uniformity: Different bodies exercising legislative powers may lead to
inconsistencies in the laws enacted. This lack of uniformity can create confusion and
challenges in the application and interpretation of these laws.

In conclusion, while delegated legislation plays a crucial role in modern governance, it is

vital to address its potential challenges. Ensuring appropriate checks and balances are in
place can help leverage its benefits while mitigating the risks.
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Delegated Legislation: Position under the Constitution of India

The case of D. S. Gerewal v. State of Punjab, provided important clarity on the constitutional
provisions regarding delegated legislation in India. It emphasized that Article 312 of the
Constitution of India, which pertains to the authority of delegated legislation, does not curtail
the inherent power of delegation vested in the legislature.

The Court highlighted that the wording of Article 312 should not be interpreted as negating
the customary power of delegation that is typically vested in the legislature. This ruling
reaffirmed the significance of delegated legislation as a legitimate and recognized process for
the efficient functioning of the legislative system in India.

In the case of Raj Narain Singh v. Chairman Patna Administration Committee, Section 3(1)
(f) of the Bihar & Orissa Act granted the local administration the power to extend certain
provisions of the Bengal Municipality Act, 1884 to Patna, with modifications as deemed
appropriate. The government specifically chose to apply Section 104 of the Act to the town
of Patna after making modifications.

One crucial aspect of the Act was the provision that no municipality with the authority to levy
taxes could be imposed on a locality without providing its residents an opportunity to be
heard and to raise objections. However, the sections that allowed for such an opportunity to
object were omitted from the notification. The court held that this action amounted to
interfering with the intended policy of the Act.

The case of J.K. Industries Limited v. Union of India, provided clarity on the boundaries of
delegated legislation. The Supreme Court emphasized that while the Legislature has broad
powers of delegation, it cannot delegate unrestricted or uncontrolled power. Delegated
legislation is confined by legislative policies and guidelines.

The court’s ruling in this case signifies that even though the Legislature can delegate its
powers, it must do so within the framework of established legislative policies and guidelines.
This ensures that the delegated authority does not have unfettered discretion and operates
within the intended boundaries set by the legislature.
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Control Mechanism

Under Delegated Legislation there are mainly three kinds of control mechanism

1. Parliamentary Control
2. Judicial Control
3. Executive Control

Parliamentary Control Over Delegated Legislation

This is up to Parliament to give anyone the powers that it possesses, just as parliament
transfers legislative powers to some other entity, e.g. executive, they must ensure that such
powers are duly exercised by the government and there is no abuse of authority that the
executive is provided with.

Judicial Control Over Delegated Legislation

The legislation that has been delegated does not fall beyond the reach of the Judicial Review
and in almost all countries the courts are allowed to decide on the validity of delegated
legislation. Despite the presence of parliamentary control, judicial control of delegated
legislation is recognized as an integral form of control mechanism. The fundamental
justification for judicial review is based on the Courts' constitutional obligation to obey the
rule of law principle. In a constitutionally controlled state, maintaining that the laws made by
Parliament are not Ultra vires under the Constitution is the essential function of the judiciary,
and that the delegated legislation enacted under the statute falls within the limits of both the
parent statute and the constitution. Judicial control is considered to be a more effective form
of control, since the courts have the power to strike down a law if it is ultra vires with the
parent statute or the Constitution. The term Ultra virus means that beyond power or authority
or lack of power. An act may be said to be Ultra Virus when it has been done by a person or a
body of persons which is beyond his, its or their power, authority or Jurisdiction.
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Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure. To follow a particular format it may take a
long time which will definitely defeat the actual objective of the act. Hence, procedural
control means that under Parent act certain guidelines are given which need to be followed
while whether it is mandatory or directory to follow it or not.

The Delegation of Power in the Demonetisation Case

 The Section 26(2) of the Reserve Bank of India Act, 1934 essentially gives powers
to the Centre to notify that a particular denomination of currency ceases to be legal
tender.
 Based on the recommendation of the Central Board, the declaration can be given by
the Central Government, by a notification in the Gazette of India.
 With effect from such date as may be specified in the notification, any series of bank
notes of any denomination shall cease to be legal tender.
 Here, Parliament, which enacted the RBI Act, is essentially delegating the power to
alter the nature of legal tender to the central government.
 The Centre exercised that power by issuing a gazette notification, which is essentially
the legislative basis for the demonetisation exercise.
 While deciding on this case, the Court applied the “policy and guideline” test to
decide the constitutionality of the delegated legislation.
 The Attorney General for India argued that the RBI Act itself has guidance for
exercise of delegated powers.
 He cited the Preamble and Section 3 of the Act as guidance on the purpose of the law
and the Centre’s role in “regulating” monetary policy.
 Section 3 deals with establishment and incorporation of Reserve Bank.
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 Decision - The majority verdict held that since the delegation of power is to the
Centre which is anyway answerable to the Parliament, the delegation power cannot be
struck down.
 The dissenting opinion, however, disagreed with this view.
 It held that Centre could not have exercised its delegated powers because Section
26(2) of the RBI only gives powers to the Centre when the recommendation is
“initiated” by the RBI Central Board.
 It held that the proposal originated from the Centre and so the Centre could not have
drawn its powers to demonetise from Section 26(2).

Conclusion

Delegated legislation plays a crucial role in managing the increasing number of legislations
and the technicalities involved. However, it is essential to maintain control over the
delegation of powers to prevent potential abuses. Judicial control, along with legislative and
procedural control, can help maintain a balance.

Delegated legislation can be challenged on grounds of substantive ultra vires, the

constitutionality of the parent act, and reasonableness. With proper checks and balances,
delegated legislation can be a useful tool in adapting to the changing needs of society while
ensuring accountability and transparency.
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References:-
1. https://blog.ipleaders.in/delegated-legislation/
2. https://lawctopus.com/clatalogue/clat-pg/delegated-legislation-in-
administrative-law/
3. https://www.iasparliament.com/current-affairs/delegated-legislation
4. https://www.legalserviceindia.com/legal/article-4944-understanding-
the-control-mechanism-over-delegated-legislation-in-india-and-
critically-analyzing-the-judicial-control-of-delegated-legislation-with-
relevant-case-laws.html