CONCEPT OF DELEGATED LEGISLATION

MEANING

Delegated legislation means the making of laws which are outside the legislature. It is mostly brought out as rules, regulations, orders, byelaws, directions or schemes. When an authority practicing power is given by the legislature makes a tool of a legislative kind, it is known as delegated legislation or subordinate legislation.

According to Salmond, delegated legislation is the legislation that comes from any form of authority apart from the sovereign power and depends on a supreme authority for the continuance of its existence.

Delegated legislation is a kind of subordinate legislation. It generally means that law made by the executive under the powers delegated to it by the Supreme legislative authority. Statutory instrument, orders in council and by-laws are the three different 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 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. The procedure of the parliament is also very slow, delegated legislation helps in making of the laws rapidly than the parliament.

Case

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, explains that any rules framed under the Act must be presented before both the houses of the Parliament.

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, delegated legislation helps the executive authority to make the laws according to the situation.
  • Emergency – At the time of emergency, it is not possible for the legislative to provide an urgent solution to meet the situation then the delegated legislation can be used. 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.

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.

CRITICISM OF DELEGATED LEGISLATION

  • It has a long duration of bearing for legislative control because the legislature is the supreme organ of the state as it consists of three main organs which are: Judiciary, Legislative and Executive.
  • All of them have to work with or in relation to each other and it should be done in a balanced way on the basis of power given to each organ for working effectively.
  • With the help of delegated legislation the executive has become stronger, it can easily encroach the rules and regulation of the legislation by making rules.
  • This concept opposes the rule of Separation of Power.
  • It is not been accepted with the principle of rule of law.
  • It is not stable in nature, as it keeps on fluctuating on the ground of Political changes.

 

CONTROL OF DELEGATED LEGISLATION

Delegated legislation has three types of control:

  1. Parliamentary or Legislative Control
  2. Judicial Control
  3. Executive or Administrative Control

 

·        Parliamentary or Legislative Control

Under the parliamentary or legislative control it is the function of the legislature to legislate, and it’s not only the right but the duty of the legislature to look upon the working of their agents. It is a fact that due to a delegation of power and general standards of control, the judicial control has diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because the executive is responsible to the legislature at two stages of control.

  1. Initial stage
  2. Direct and Indirect stage

In the Initial stage, it is to decide how much power is required to be delegated for completing the particular task, and it also observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

  1. Direct control
  2. Indirect control

Direct control  

Laying is an important and essential aspect under direct control and it is laid down as per the requirement which means that after making the rule it should be placed before the Parliament. It includes three important part as per the degree of control needs to be exercised.

  1. Simple Laying
  2. Negative Laying
  3. Affirmative Laying

Indirect control

This is a control exercised by Parliament and its committees. Another name for such type of committee is Subordinate legislation. The main work of the committee is to examine

  1. Whether rule are according to general object of the act.
  2. It bars the jurisdiction of the court in direct or indirect ways.
  3. Whether it has retrospective effect or not.
  4. Whether it safeguards or destroys the Principle of Natural Justice.
  5. Expenditure involved in it is from the Consolidate fund.

 

·        Procedural and Executive Control

 Until the legislature makes it mandatory for the executive to follow certain rules or procedure there is no particular procedure for it.

It may take a long time to follow a particular format 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. It includes three components:

  1. Pre publication and consultation with an expert authority,
  2. Publication of delegated legislation.
  3. Laying of rules.

It can be either Mandatory or Directory, to know, certain specified parameters are given:

  1. Scheme of the Act.
  2. Intention of Legislature.
  3. Language used for drafting purpose.
  4. Inconvenience caused to the public at large scale.

 

·        Judicial Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is within the ambit of the constitution as prescribed. Judicial review is more effective because the courts do not recommend but it clearly strikes down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined under the  Constitution of India which clearly indicate that State should not make any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:

  1. It is ultra vires to the Constitution of India, and
  2. It is ultra vires to the enabling Act.

 

Conclusion

Delegated legislation is a kind of subordinate legislation. It generally means that law made by the executive under the powers delegated to it by the Supreme legislative authority. If the Parliamentary control overlaps the delegated legislation then it is mandatory for the parliament to make the committee which is strong enough and separate laws are made and passed which gives a uniform rule for the purposes of publication. The committee which is made by the Parliament must contain a special body which looks upon the delegated work, whether it’s going in the right direction or not. All the three organs should focus on their work and do not interrupt unnecessarily to prevent chaos in the system.

Aishwarya Says:

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