2.1.
Delegated Legislation-Meaning, Need for administrative Rule-
making, Classification of Delegated Legislation, Constitutionality of
Delegated Legislation .
Meaning: The expression ‘Delegation of Authority or Delegated Authority’
means “transfer of authority/power by the superior to the subordinate”.
Accordingly, when a subordinate by virtue of delegated authority passed a
law/legislation, it is called ‘delegated legislation’.
Delegated Legislation is also known as ‘Subordinate Legislation’ or
‘Administrative Legislation’.
It means, “Conferring one’s power of law making to another”. It is the
extension of law making power to the Executive by the Legislature.
Black’s Law Dictionary: The term delegation has been defined in Black’s
Law Dictionary as “the act of entrusting another with authority by
empowering another to act as an agent or representative”.
Nature: Salmand has classified the legislation into 2 types;
Supreme Legislation.
Subordinate / Delegated legislation
- “Supreme Legislation” is the legislation made be the supreme, power
of the state i.e., parliament.
-“subordinate Legislation” is the legislation made by the authority other
than the supreme Authority in the state.
The Delegated Legislation is made when law making power is delegated
to the executive ore administrative authority through parent act or
enabling act.
There are three different types of delegated legislation: these
are,
Orders in Council: These are issued by the Queen and Privy Council, or
by the government and often used for situations of national importance
and may affect the public at large.
Statutory Instruments: This is the most common form of delegated
legislation, typically issued by government ministers or made by the
government.
By-laws: These are laws created by local authorities or certain public
corporations and apply to specific geographical areas or industries.
Need for administrative Rule-making or delegated legislation
Pressure upon Parliamentary Time: In modern welfare State the bulk
of the Legislature has increased and it does not have sufficient time to
discuss minor details and also to provide all the details. Consequently, it
has to confer on the executive or other agency, the authority to make
subordinate legislation (e.g. rules, by-laws, regulations, etc.) to
supplement the legislation made by the Legislature. The Legislature, thus,
passes skeleton legislation and gives authority to the concerned authority
to supply flesh and blood to the skeleton by making rules, regulations, by-
laws, orders, etc.
ii. Technicality: Sometimes the subject matter of the legislation is of
technical nature and it requires handling by the experts. In such cases, it
becomes necessary to delegate to appropriate authority the power to deal
with such subject matters.
iii. Experimentation: Many a times the executive requires time to carry
out necessary experimentation for the purpose of bringing into effect the
legislation. The executive faces many challenges in giving effect to social
welfare legislations and often requires time to understand the working of
the law and its impact on the people and implement effectively. It may
need to bring the law into force in phases.
iv. Not flexible: Delegated legislation or subordinate legislation is more
flexible than ordinary legislation. The rules, regulations, by-laws, or
orders, etc. if found to be defective, may easily be amended . Delegated
legislation enables experiment. If the experiment is found to be
unsuccessful, the rules and regulations may be revoked or modified
according to the requirements and if the experiment is found to be
successful, the rules and regulations may be extended or made perpetual.
v. Emergency Situations: Sometimes the economic and national
emergencies require quick action but because of being overburdened, the
legislature finds it very difficult to act as promptly as the situation
demands. Hence, the executive delegates the power to make rules,
regulations, etc. to deal with such situation.
vi. Unforeseen contingencies: In some case, it becomes essential in
view of public interest that provisions of the law should not be known until
the time fixed for that to come into operation. So in these cases the
Executive must be amply empowered to make rules and regulations as it
deems necessary because in absence of delegation of legislative powers,
such contingencies cannot be meted out properly. The other
circumstances may be that when an Act is passed by the Parliament, the
Act may be required to come into operation at different dates at different
times. It is possible only for the executive to apply it by passing orders or
making regulation to the effect as when shall it be enforced or brought
into operation.
vii. Secrecy: In some cases the public interest demands that the
provisions of the law should not be known until the time fixed for their
operation comes, e.g. imposition of import duty or exchange control,
rationing schemes, etc. This also necessitates the delegation of power to
make rules, regulations, by-laws, etc. to the executive or other agency.
vii. Direct contact with the people.
Executives are those who are in direct contact with the citizens and they
know the problems faced by people. Therefore, they can form laws that
will help in eliminating the problems faced by them.
Classification of Delegated Legislation
A. Title Based Classification.
B. Purpose Based Classification.
C. Discretion Based Classification.
D. Authority Based
E. Nature based
A. Title Based Classification: Parliament does not follow any particular
policy in choosing the forms of delegated legislation. Therefore, the
process of delegated legislation appears in several forms. Hence, the
delegated legislation may be classified as follows:
a) Rule: It means a rule made in exercise of powers
conferred by any enactment
b) Regulation: It means an instrument by which decisions, orders and acts of
the government are made known to the public.
c) Order: There is not much difference between rule and order. Only in the
name it differs. Depending upon the nature of the power delegated to the
executive, it can make two kinds of orders such as General and Particular
orders.
D) Bye-laws: It means rules made by the semi-Government authorities
established under the Act or statute, e.g. rules made by local authority.
e) Direction: Directions are generally framed by the head of the department
to regulate the internal functions of the department. It may be mandatory or
recommendatory in nature.
f) Scheme: It is used to refer to a situation where the executive or
administrative authority is authorized by the Act or statute to lay down a
framework within which the concerned authority is to function.
B. Purpose Based
Legislation maybe classified on the basis of purpose for which the
delegation is made.
a) To bring the act into operation
b) To modify the act of the statute-
The legislature may pass an act declaring that it is applicable to
limited territories or persons or commodities or it shall apply for a
particular period in the first instance and later it empowers the
executive to extend its jurisdiction.
c) To prescribe punishment-
The law will be made in its full form by the legislature but executive
will be empowered to prescribe punishment for the breach of the
provisions of the act.
d) To adopt laws from another state- executive is given the power to
adopt and apply statutes existing in other states.
e) To remove difficulties
f) To include or exclude persons or objects, institutions.
C. Discretion based
A discretion may be conferred on the executive to bring the act into
operation on fulfilment of certain conditions, such legislation is called
‘conditional legislation’.
Conditional legislation tends to provide control (not law-making power)
and also specifies that the legislation will come into force only after
fulfilment of conditions provided by the statute.
The discretion is vested in the rule making authority.
D. Authority Based Classification & (sub-delegation).
Parent acts may empower the executive to further delegate power to
subordinate are known as sub delegation.
It occurs when the parent act confers Legislative power to the
Executive, which then delegate it to a subordinate authority.
The parent act can allow sub- delegation to a max 4 or 5 degrees.
However the Latin maxim ‘Delegatus non potest delegare’ translates to
“a delegate cannot delegate.”
E. Nature based
Delegated legislation may also be classified on the basis of nature to
extend legislative powers
Positive:- where the limits Of delegation are clearly defined in the statute .
Negative:- where power delegated does not Include power to do certain
things.
Constitutionality of Delegated Legislation
Under the Constitution of India, Articles 245 and 246 provide that the
legislative power shall be discharged by the Parliament and the State
Legislatures.
There is nothing in the Constitution whereby it can be inferred that the
Legislature cannot delegate its legislative power to anybody else. But it does
not mean that power of legislation includes the power of delegation.
In the Constitution itself we find several provisions where the Executive
heads, i.e., the President and the Governors of the different States have been
empowered to make laws under certain conditions, for instance, when the
Parliament or State Legislatures are not in sessions.
During the President’s rule in any State the Executive has been authorized to
make laws for the State.
It is clear from these provisions that it was not the intention of Constitution-
makers that the legislative functions should be carried out by the
Legislatures only. The delegation of legislative power was conceived to be
inevitable and therefore it was not prohibited in the Constitution.
However article 13 3 A confers on the legislature, implied authority to
delegate the law making power. This article defines the term law and
according to the this article law includes any rules ,orders, by laws,
regulations and notification.
In the case of D. S. Gerewal v. State of Punjab, the Supreme Court
clarified that Article 312 of the Indian Constitution deals with the power of
delegated legislation. There is nothing in the language of Article 312 that
diminishes the ordinary power of delegation, which typically resides with the
legislature. The phrase “Parliament may by law provide” in Article 312 should
not be interpreted to mean that there is no room for delegation in a law
enacted under Article 312.
Grounds to Determine Constitutionality of Administrative Delegated
Legislation
Consistency with Parent Act: In the Indian Oil Corporation v. Municipal
Corporation, Jalandhar case, the court ruled that any delegated legislation
must align with the parent act and should not contradict its legislative
policies. It was implied that a delegate should not have more legislative
authority than that of the delegator.
Limits Determined by the Legislature: The permissible boundaries of
administrative rule-making are to be set by the legislature. This limit applies
to all forms of delegated legislation.
Essential Legislative Functions: The legislature cannot delegate its
essential legislative functions, including setting the policy to govern an act.
Delegation of non-essential functions, no matter how significant, is also not
allowed.
The Indian Constitution allows for delegation, but it must adhere to certain
constraints. Delegated legislation must align with the parent act, ensuring it
does not contravene legislative policies. The extent of delegation is
determined by the legislature, while essential legislative functions cannot be
delegated.
