Delegated Legislation in India

In the constitutional framework of India, the separation of powers among the Legislature, Executive, and Judiciary is a fundamental principle. The Legislature is entrusted with the power to make laws, the Executive is responsible for implementing those laws, and the Judiciary interprets them. However, the functioning of a modern state requires complex governance and the ability to respond swiftly to ever-evolving challenges. To achieve this, the process of delegated legislation has emerged as an essential tool in administrative law.

Delegated legislation refers to laws or regulations made by an authority, typically the Executive, under powers conferred by an Act of Parliament or a parent statute. The concept is also known as subordinate legislation or secondary legislation, as it derives its authority from a primary piece of legislation passed by the legislature.

While the legislature possesses the power to make laws, it cannot always address every intricate detail required for effective governance. Therefore, delegated legislation becomes a vital mechanism that allows the Executive to make detailed rules and regulations within the framework laid down by Parliament.

Meaning and Concept of Delegated Legislation

Delegated legislation is the process through which legislative powers are transferred from the Legislature to the Executive or other bodies designated by the legislature. In India, this concept is rooted in the Constitution, where the legislature enacts laws that may delegate the authority to make rules or regulations to the Executive. These rules and regulations are expected to be in harmony with the primary legislation and cannot alter or exceed the scope of the statute they are based upon.

In simpler terms, delegated legislation refers to laws made by persons or bodies other than the legislature, but under the authority of the legislature. The parent Act passed by the legislature typically sets out broad objectives, and the finer details of implementation are handled through delegated legislation. 

For example, an Act may provide for the regulation of a particular industry, but it is the responsibility of an executive agency or authority to develop the rules and regulations that will govern the operation of that industry.

Need for Delegated Legislation

The need for delegated legislation arises from several practical and conceptual challenges faced by the legislature in a rapidly evolving society. The legislature, being composed of elected representatives, may not possess the technical expertise or the time required to address the myriad issues that may arise in the implementation of laws. As governance becomes more complex, with an increasing number of specialised areas requiring legal attention, it becomes practically impossible for Parliament to delve into all the minute details of every legislative matter.

1. Pressure on Parliament: The sheer volume of work and the expansion of the state’s functions require timely and efficient lawmaking. Parliament cannot devote enough time to discuss every issue in depth, and therefore, it delegates certain legislative powers to administrative bodies.
2. Technical Expertise: Certain laws, such as those related to taxation, public health, or industry regulation, require a level of expertise that Parliament may not possess. Delegated legislation allows technical experts or specialised authorities to draft rules and regulations that are beyond the scope of general legislative discussion.
3. Flexibility and Speed: The legislative process in Parliament is slow and cumbersome. Bills have to go through multiple stages of scrutiny and approval. In contrast, delegated legislation offers flexibility and allows laws to be made rapidly in response to urgent needs. For example, in times of national emergency or crisis, the Executive can enact laws to address the situation immediately, without waiting for parliamentary approval.
4. Local Governance: Local authorities may be better equipped to understand and address the unique needs of their respective areas. Delegated legislation allows these authorities to enact laws that are tailored to local needs and circumstances, thus fostering decentralised decision-making.
5. Filling Legislative Gaps: Over time, new issues emerge that were not foreseen when the primary legislation was passed. Delegated legislation helps address these gaps and ensures that laws remain relevant and adaptive to changing societal needs.

Delegated Legislation under Constitution of India

India’s Constitution does not directly mention “delegated legislation,” but it provides a framework that enables the delegation of legislative powers. Article 245 of the Constitution grants the Parliament and State Legislatures the authority to make laws for the whole or any part of India. However, the Constitution also allows for the delegation of legislative powers, primarily through enabling Acts, to the Executive.

The case of D.S. Gerewal v. State of Punjab (1967) clarified that the Constitution does not restrict the power of the legislature to delegate its authority. The Supreme Court held that Article 312, which deals with the authority of the Parliament to create new All-India Services, should not be interpreted as negating the customary power of delegation vested in the legislature.

Similarly, in the case of Raj Narain Singh v. Chairman, Patna Administration Committee, the Supreme Court upheld the delegation of legislative powers to local authorities, emphasising the necessity of local laws to address specific community needs.

In J.K. Industries Limited v. Union of India, the Supreme Court reaffirmed that while the legislature can delegate its powers, it must do so within the parameters set by the parent Act, ensuring that delegated powers do not go beyond the scope or intent of the primary legislation.

Landmark Cases on Delegated Legislation

In the case of Agriculture Marketing Committee v. Shalimar Chemical Works Ltd., the Supreme Court provided crucial reasons for the necessity of the legislature delegating its duties to the government. The Court outlined three main arguments:

1. Uncertainty of the Future: The Court acknowledged that not every circumstance can be easily anticipated or addressed by the legislature. As such, areas requiring delegation are often technically complex, and cannot always be predefined in legislation.
2. Role of the Executive in Filling Gaps: Delegated legislation allows the Executive to bridge gaps in policy. By experimenting and understanding the underlying intent of the legislation, the Executive can make informed changes that enhance its implementation.
3. Strengthening the Executive’s Role: By delegating certain powers, the legislature gives the Executive the opportunity to contribute valuable insights in shaping rules and regulations, alongside the legislative body.

In line with this reasoning, the Supreme Court in St. John’s Teachers Training Institute v. Regional Director, NCTE, affirmed the importance of delegated legislation in India. The Court emphasized its indispensable role in reducing the burden on the legislature, improving citizen welfare, and helping shape constitutional law. The Court noted that delegated legislation aids in developing the legal and administrative systems of the country.

Subordinate legislation in India can be understood in two distinct periods: pre-constitutional and post-constitutional. Two landmark cases from the pre-constitutional era shed light on the understanding of delegated legislation:

1. R v. Burah: In this case, Sections 8 and 9 of a particular Act were challenged on the grounds of excessive delegation. These provisions allowed the Lieutenant Governor to extend civil and criminal jurisdiction within certain areas. The Calcutta High Court held Section 9 to be ultra vires, citing the principle Delegatus non potest delegare, which states that a delegate cannot further delegate their powers. The Court argued that the Indian legislature, as a delegate of the British Parliament, could not delegate its duties. However, the Privy Council overturned this judgment, asserting that the Indian legislature had plenary power of legislation, independent of the British Parliament. The Court did not validate delegated legislation per se but supported the notion of conditional legislation.
2. Jitendra Nath Gupta v. State of Bihar: This case followed the interpretation from Burah, reinforcing that delegated legislation could only be in the form of conditional legislation. This ruling created confusion in understanding the scope of delegated powers, as it suggested that other forms of delegation were impermissible. However, this confusion was clarified during the post-constitutional period.

The In Re Delhi Laws Act case clarified the position of delegated legislation in the post-constitutional era. The Court set out three essential tests that must be satisfied for a legislative authority to delegate its powers:

1. Scope of Delegation: The subject matter of the delegation must fall within the legislative authority granted by the Constitution.
2. Non-negation of Other Instruments: The delegation of power must not undermine or contradict other legislative instruments created by the legislature (i.e., the power must not be ultra vires).
3. No Abdication of Legislative Powers: Delegation must not result in the creation of a new legislative body with identical functions, thus leading to the abdication of legislative powers.

This case also provided valuable insights into the varying perspectives on delegated legislation, expressed by the three presiding judges.

• Justice Kania’s View: Justice Kania adopted a strict interpretation of delegated legislation. He believed that the threshold for delegating powers should be very high, and that the legislature must fulfill its responsibilities without unnecessary delegation.
• Justice Fazl Ali’s View: Justice Fazl Ali interpreted delegated legislation more broadly. He argued that the legislature could delegate all its functions to subordinate bodies, provided it remained within the legislative framework. This perspective emphasized the importance of distributing legislative responsibilities across various governmental authorities.
• Justice Mukherjee’s View: Justice Mukherjee provided a balanced interpretation of delegated legislation. He agreed that the legislature should delegate its functions but cautioned against excessive delegation. He stated that delegation must serve as an ancillary or supportive tool to aid the proper functioning of the legislature’s lawmaking powers. Many consider this view the most ideal form of delegated legislation, as it strikes a balance between delegation and legislative authority.

Safeguards and Controls Over Delegated Legislation

While the legislature possesses wide powers to delegate authority, this does not imply that such delegation should be uncontrolled. The delegation of legislative powers must be regulated by strict safeguards to prevent misuse and to maintain a balance within the administrative system.

These safeguards ensure that the delegated powers are not abused and that the delegation process is fair and transparent. There are several key safeguards that help regulate the process of delegated legislation:

1. Parliamentary Control: Parliament exercises control over delegated legislation by scrutinising the rules and regulations laid before it. This ensures that the delegation is within the scope of the parent Act and does not exceed the powers granted by the legislature.
2. Judicial Control: The judiciary plays a crucial role in reviewing delegated legislation to ensure that it complies with constitutional principles and does not violate the rights guaranteed under the Constitution. Courts have the power to strike down rules that are ultra vires or in conflict with the parent statute.
3. Executive Control: The executive is also subject to internal controls, such as consultations with experts and adherence to established procedures when making rules and regulations. This ensures that the rules made by the executive align with the broader legislative intent.

When these safeguards are adhered to, delegated legislation can serve as an efficient and effective tool for governance. By regulating the process, the government can enact laws that address the complexities of modern administration while maintaining democratic accountability.

Criticism of Delegated Legislation

While delegated legislation has its advantages, it is not without criticism. Several concerns have been raised about its impact on democratic processes and the separation of powers.

1. Democratic Deficit: Delegated legislation often empowers unelected officials or bodies to make laws, bypassing the democratic process. This concentration of lawmaking power in the hands of the Executive raises concerns about accountability and representation, as those who create the laws are not directly accountable to the electorate.
2. Lack of Parliamentary Scrutiny: Unlike primary legislation, delegated legislation undergoes significantly less scrutiny by Parliament. While Parliament may have some control through committees, the detailed scrutiny that is afforded to primary legislation is often lacking, leading to the possibility of hasty or ill-considered laws being passed.
3. Overlapping Jurisdictions: Delegated legislation can sometimes lead to confusion due to overlapping jurisdictions between the legislature and the executive. Conflicting regulations from different bodies can create inconsistency and uncertainty in the legal framework.
4. Arbitrary Exercise of Power: There is a risk that delegated legislation may be exercised arbitrarily, especially when adequate checks and balances are not in place. Without proper oversight, the Executive could misuse the power granted to it by Parliament, leading to laws that deviate from the original intent of the parent Act.
5. Violation of Rule of Law: Delegated legislation must adhere to the principles of natural justice and the rule of law. However, rules that are made in a manner contrary to the provisions of the parent Act, or that violate fundamental rights, can be struck down by the courts.

Control Mechanisms for Delegated Legislation

To ensure that delegated legislation does not exceed the powers conferred by the parent statute, both Parliament and the Judiciary play significant roles in overseeing its operation.

1. Parliamentary Control: The Legislature retains control over delegated legislation through mechanisms such as laying rules before Parliament, requiring committees to review the regulations, and ensuring that they comply with the parent Act. There are three main methods of parliamentary control:
   • Simple Laying: The rules are laid before Parliament for a set period, allowing Parliament to raise objections.
   • Negative Laying: Parliament must actively object to the rules within a specified period for them to be disallowed.
   • Affirmative Laying: Rules will only take effect if Parliament expressly approves them.
2. Judicial Control: The Judiciary plays a critical role in ensuring that delegated legislation conforms to the Constitution and the enabling Act. Courts have the authority to strike down rules that are ultra vires, or beyond the power granted by the parent Act. Judicial review is a key safeguard to prevent misuse or abuse of power.
3. Executive Control: The Executive itself is subject to checks through procedures such as consultations with experts, publication of regulations, and pre-legislative scrutiny. These mechanisms ensure that the process of delegated legislation remains transparent and in accordance with the public interest.

Advantages of Delegated Legislation

Despite the criticisms, delegated legislation offers several advantages that make it a necessary part of modern governance:

1. Efficiency: It saves time for the legislature by allowing the Executive to focus on the finer details of lawmaking.
2. Flexibility: Delegated legislation allows laws to be quickly adapted to changing circumstances, such as during emergencies or crises.
3. Expertise: It ensures that laws are created by specialists in specific fields, ensuring that technical matters are handled competently.
4. Localised Decision-Making: Delegated legislation allows local authorities to tailor laws to their communities, fostering decentralisation and better governance.

Conclusion

Delegated legislation plays an indispensable role in the administration of justice in India. While it has the potential to enhance the effectiveness of governance, it must be accompanied by adequate checks and balances to prevent misuse. The need for technical expertise, flexibility, and rapid action in modern governance necessitates the delegation of certain legislative functions to the Executive. However, this delegation must always remain within the confines of the Constitution and the enabling Act.

The Indian system provides for a robust framework of control over delegated legislation, with both parliamentary and judicial oversight. It is imperative that this balance is maintained to ensure that delegated legislation serves the public interest without undermining the democratic process or the rule of law. With proper regulation and accountability, delegated legislation will continue to play a crucial role in the effective functioning of the Indian state.