The constitution empowers the legislation under Article 246 to make laws without violating the provisions of the constitution. But, in order to meet the growing needs of citizens, it is necessary to make laws that are suitable for them and effective ones. It is also not easy for the legislature to look after every matter. Since executive has direct contact with citizens, it was essential to delegate certain powers of the legislation to make laws that are useful and effective to maintain law and order and to guide people. It has been delegated to a body in the executive known as delegated legislation. The legislation is empowered to delegate its power under Article 312 of the constitution. This explanation of delegated legislation was given in a landmark case known as D.S. Grewal vs. The State of Punjab, 1959 AIR SC 512.
Delegated legislation is a debatable issue because the Indian democracy is said to have only three organs and those are Legislation, Executive and Judiciary. Moreover, these organs do not interfere on the matters of each other. But it was necessary to delegate power of legislation to executive to make speedy decisions due to inadequate time legislation has to look in to every minute detail to legislate. It is also called as Secondary legislation, Subordinate legislation, Ancillary legislation, Administrative legislation, and Quasi-Legislation.
- Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. ‘
- According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power.”
- According to M.P Jain, this term can be used in two senses:
- Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by the Legislature.
- The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed on it by the Legislature.
Growth of Delegated Legislation
Delegated legislation is the need of the hour because the hectic and long process of legislation would not be able to find solution of an issue immediately. It will help in making laws which will be either known as “enabling act” or “parent act”. The following are the reasons for the growth of delegated legislation:
- Reduces the pressure on Parliament:
Parliament is the law-making body of the country. They are constantly busy with passing bills and acts for the betterment of the country. Hence, it will be difficult for the Parliament to make laws in details. As a result, they prepare an outline of what the act is mainly dealing along with guidelines on what all matters this act should cover. Later, it is given to the officials in the executive to formulate the laws accordingly in detail. It is essential to note here that though executive is delegated power to make rules, there is always evaluation and control on the delegated legislation by the legislation. The laws will always go under the scrutiny of the legislation.
Parliament follows certain procedure in the formulation of any laws this makes the law-making procedure rigid. Whereas, the delegated legislation does not have any lengthy procedure and it will be helpful in making speedy decisions.
- Speedy decisions
It takes a lot of time by taking opinions of each and every members of the Parliament. Hence, an issue that requires immediate actions is efficiently dealt with by the delegated legislation.
- Expertise opinion and knowledge
Parliament members wouldn’t have proper knowledge of certain aspects since all are not expertise in every matter. So, the parliament will give a framework of policies to be formed. The delegated legislation is at the liberty to make use of the opinion and knowledge of expertise in the formulation of a law. Moreover, it provides us knowledge of the technical aspect of a particular subject. This will help in formulating laws that are efficient and gives clarity to the enacted laws.
- Meeting needs of unforeseeable contingencies or emergency
Emergency situations are those situations which require immediate actions to be taken without any delay. Delegated legislation helps in taking decisions immediately sue to its flexibility. Examples for emergency situations are war, deflation, inflation, economic depression, pandemics, etc.
- 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.
Criticisms for Growth of Delegated Legislation
- Chance of Arbitrariness
There is high chance of the delegated legislation will violate its power and try to control in an arbitrary manner. This will go against the rights and duties enshrined in the Constitution.
- Absence of discussion
There is an absence of discussion of between the delegated legislation as compared to the discussion held in the parliament by the MPs.
- Absence of transparency to the public
The public is not informed about the acts formulated by the delegated legislation. People are not aware of what is been done. There is an absolute absence of transparency in the formulation of law.
- Absence of balance of power:
The theory of separation of power is violated under this delegation. The executive is given more power through delegated legislation. It is having power to make laws and executive them as well.
Author: Silpa Ann Koshy (Kristu Jayanti College of Law)