June 13, 2021

Meaning and Evolution of Delegated Legislation

administrative law

Delegated legislation (sometimes referred as secondary legislation or subordinate legislation or subsidiary legislation) is a process by which the executive authority is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature’s authority. Legislation by any statutory authority or local or other body other than the Legislature but under the authority of the competent legislature is called Delegated legislation. It is legislation made by a person or body other than Parliament. Parliament thereby, through primary legislation, enables others to make law and rules through a process of delegated legislation.

Why Delegated Legislation Is Important?

The process of delegated legislation enables the Government to make a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to modify or alter sanctions under a given statute or make technical changes relating to law. Delegated Legislation is important due to various reasons. They are as follows-

1.Delegated Legislation reduces the burden of already overburdened   Legislature by enabling the executive to make or alter the law under the  authority of Legislature. Thus, this helps the Legislature to concentrate on more important matters and frame policies regarding it.

2.It allows the law to be made by those who have the required knowledge and  experience. For instance, a local authority can be permitted to enact laws with respect to their locality taking into account the local needs instead of making law across the board which may not suit their particular area.

3.Finally, delegated legislation often covers those situations which have not been anticipated by the Parliament during the time of enacting legislation, which makes it flexible and very useful to law-making. Delegated legislation is, therefore, able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

There are three forms of delegated legislation i.e., statutory instrument, orders in council and by-laws.

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 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.

But there should be control over delegated legislation. Delegated legislation is controlled by the Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as it takes account with the statutory committees which make law through bills. The main object of parliamentary control is to look that there is no abuse or unnecessary use of the powers given to rulemaking authorities.

In the case of Narendra Kumar v. Union of Indiait was held by the Supreme Court that the provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in the Parliament.

There Are Many 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.
  • The complexity of modern administration – With the increasing complexity in modern administration and the functions of the state being expanded and rendered to economic and social spheres too, there is a need to shift to new reforms and providing more powers to different authorities on some specific and suitable occasions. In a country like Bangladesh, where control over private trade, business or property may be needed to be imposed, and for implementation of such a policy so that immediate actions can be taken, it is needed to provide the administration with enough power.

Advantages Of Delegated Legislation-

  • Save time for the legislature.
  • Allow for flexibility.
  • Expert opinion is required in legislation.
  • Parliament is not always present in the session.
  • Used as an experimental basis.
  • It is restored to use it in a situation of emergency.
  • Can be easily Settle down with consulting the required party of the case

Classification Of Delegated Legislation

Power to bring Act into Action  As it is already given that in a specified date this Act will come into force prescribed by Central or State Government by giving a notice in the Official Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the Act into force and it should not be excessive in delegated power of legislation. So, here the court rejected the contention that the power was excessive in nature as per prescribed. It was practically difficult for enforcement. Therefore, power is given to the executive authority to decide the date of enforcing the act.

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.

Types of Conditional Legislation-

  • Power to bring the act into action.
  • Power to extend the time period or life of the act.
  • Power to extend the application of the act to any territory and to make restriction or make an alteration in the act itself.
  • Exempt the operation on certain ground or subjects of territories.

Criticism of Delegated Legislation

  1. Delegated legislation results in overlapping of functioning  as the delegated authorities get work to amend the legislation that is the function of the legislators.
  2. It has been a matter of question that if the Legislature control has come down after the arrival of the delegated legislation.
  3. Unelected people cannot make much delegated legislation as it would be against the spirit of democracy.
  4. After getting too much power from the Legislature, the Executive has encroached upon the domain of legislature by making rules and regulations.
  5. The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment. Parliament, along these lines, has an absence of authority over appointed enactment, and this can prompt irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners which Parliament had not foreseen when it was given the power through the Act of Parliament.
  6. Delegated legislation makes laws without much discussion. So, it may or may not be better for the public.

Conclusion

Delegated or subordinate legislation means rules of law made under the skilled person of the Act of Parliament. In spite of the fact that law making is within the capacity of the law making body, it might, by a resolution, delegate its capacity to different bodies or people. The resolution which delegates such power is known as the Enabling Act. By Enabling Act the council sets out the wide rules and nitty-gritty principles are instituted by the delegated authority.

If in India the control of Parliament over the delegated legislation has to be made a living continuity, then it is important that the job of the advisory groups of the Parliament must be fortified and a different law like the Statutory Instruments Act, accommodating uniform standards of laying and production, must be passed. The board of trustees might be enhanced by a specific authority body to make the watchfulness of assigned enactment progressively successful. Other than the different measures mentioned above, it should be taken to reinforce the control of Parliament over designated enactment. The tenets and standards created by the Legal Executive should be connected by the necessities of the advanced age. In spite of the fact that there are no express arrangements in the Constitution of India to allow the appointment of authoritative power, the legal pattern saw in regard of assigned enactment is as per the aim of establishing fathers our Constitution whose principal concern was the flexibility of the Constitution with changing needs of the time. If you want to make certain that the power of delegated law in the arms of the government is not misuse, it is vital to adopt powerful modes of control as applicable in the USA which India has now not integrated yet.

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Author Details: Aditya Dogra (Maharaja Agrasen Institute of Technology)

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