When the executive makes rules, regulations or modification in exercise of the powers conferred to them is known as Delegated legislation or subordinate legislation. The act by which the powers are conferred to the executive is known as Parent Act or Supreme legislation. Thus Delegated legislation happens when the function of legislation is entrusted to organs other than the legislature by the legislature itself. According to M.P Jain, the term Delegated legislation can be used in the following two senses.
1. The exercise of the legislative power by the executive
2. The rules which are made by the executive body in pursuance of the power conferred on it by the legislature
Delegation of rulemaking power is a compulsive necessity. It act as an advantage to the executive because Parliament with its onerous legislative time schedule may feel tempted to pass Skelton legislation with the details to be provided by the making of rules and regulations. In some situations it is necessary that the law must not be known to anybody till it comes to operation. For example, in case of imposition of restrictions on private ownership, it is necessary that the law must be kept secret till it comes into immediate operation; otherwise people could arrange their property rights in such a manner as to defeat the purpose of law. This secrecy can be achieved only through administrative action because the ordinary legislative process is always open.
Lack of viability and experimentation is a limitation to the legislative process by the Parliament. A law passed by the Parliament has to be in force till the next session of Parliament when it can be repealed. Thus, administrative rule-making is the only answer to the situations which require adjustments frequently and can help in experimentation of various aspects.
Reasons for the growth of Delegated legislation:
1. Pressure upon Parliamentary time: Even if today Parliament sits all the 365days in a year and all the 24hours,it may not give that quantity and quality of law which is required for the proper functioning of a modern government. It give arise to Delegated legislation by the executive.
2. Technicality: Legislature being himself a common man and the subject matter of modern legislation is technical in nature give rise to Delegated legislation. This resulted in conferring of powers to the experts to deal with the technical problems. Example: gas, atomic energy, drugs, electricity.
3. Flexibility: The slow and technical process of legislation and the impossibility to foresee all the contingencies which may arise in future at the time of passing any legislative enactment give rise to Delegated legislation. Example: bank rate, police regulations, export and import, foreign exchange etc.
4. Emergency: Delegated legislation is the only solution to meet the emergency situation. Therefore, in the times of war or other national emergencies, the executives are vested with more powers to deal with the situation.
5. Experiment: Rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience is one of the main reasons for the growth of Delegated legislation. Example: In road traffic matters, an experiment may be conducted and in the light of its application necessary changes can be made.
These are the functions which the executive can be delegated:
1. Commencement of the act
2. Power to fill in details
3. Power of inclusion and exclusion of any provisions of the act
4. Power to modify the statute
These are the functions which cannot be delegated by the executive authority:
1. Power to repeal a law
2. Retrospective operation
3. Power to impose tax
4. Essential legislative functions
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