The modern state performs a vast variety of functions, necessitating a large body of laws and rules to govern these spheres. It is not practical for the legislature to enact all such rules itself. Delegated legislation refers to the laws made by bodies like the executive, judiciary, or statutory entities under the powers delegated to them by the legislature. The concept occupies an important position in administrative law.
Definition of Delegated Legislation
Delegated legislation can be defined as “that form of legislation where the legislature, instead of making the law itself, delegates its law-making powers to some other authority”. The laws directly made by Parliament or state legislatures are termed as Supreme or Superior legislation, while laws made through delegation are called Subordinate legislation. The subordinate law-making bodies function as delegates of the legislature.
Also Read: Notes on Administrative Law
Need for Delegated Legislation
There are several factors that make delegation of legislative power in modern times a practical necessity:
- Increasing Legislative Burden: With the adoption of the welfare state model and expansion of governmental functions, the range of laws needed has amplified manifold. The Parliament does not have the time or resources to enact the mountain of regulations needed today. Delegation enables sharing of the legislative load.
- Need for Expert Knowledge: The executive has various departments like commerce, finance, defense etc. manned by specialized personnel. They possess expert knowledge regarding the technical aspects that need to be regulated under law. The legislature lacks such expertise.
- Flexibility and Expedition: Circumstances change frequently. The executive can amend and issue fresh rules more quickly through delegated authority to suit the changing needs without awaiting Parliament nod each time.
- Emergency Situations: Rapid action may be required at times to deal with unforeseen contingencies and crises. Ordinances are a common method used to empower authorities to promulgate urgent laws.
- Secrecy Needs: Certain regulations concerning defense equipment, installations, war strategy etc. need confidentiality which the executive is better placed to maintain. Broadcasting details can hamper security interests.
- Convenience in Administration: As the executive has to implement the laws, involving it in rule making on aspects incidental to the legislation policy facilitates administration.
Constitutional Validity of Delegated Legislation
Earlier judicial decisions had invalidated delegation of legislative power on two main grounds:
- Violation of Separation of Powers: Making laws is the exclusive domain of the legislature. Allowing the executive to frame laws results in encroaching on legislature’s functioning thereby breaching separation of powers between institutions.
- Delegatus Non Potest Delegare: The legislature being a delegate itself (of the people’s sovereignty) cannot further delegate, as per this principle.
However, on account of the multifarious advantages offered by delegated legislation, the courts changed their stance. In India, a Constitution Bench of the Supreme Court in Re: Delhi Laws Act case upheld constitutional validity of delegation subject to three safeguards:
- Essential Legislative Functions cannot be delegated – Functions like determining the legislative policy and formally enacting that policy into laws constitutes the ‘essence’ of legislative power, and rests solely with the legislature.
- Adequate Guidelines Must be Provided – The parent statute itself must chalk out proper guidance to steer the delegatee on exercising the delegated authority.
- Limits should be placed – Wherever feasible, the boundaries within which delegated powers can be used should be set out, for instance fixing upper limits for penalties to be imposed by rules.
Thus, barring core aspects of lawmaking like framing policies and setting standards, delegation of ancillary legislative powers is now constitutionally permissible in India.
Types of Delegated Legislation
There exist several modes adopted by the legislature for delegating law-making functions which can be categorized under:
- Skeleton Legislation: Here the legislature simply outlines the bare bones structure of the law in the Act, while leaving the rule-making body to flesh out details through subordinate legislation.
Example: Sec. 3 of Essential Supplies Act defined purposes for which rules can be framed but did not provide exhaustive elaboration, which was delegated. In Harishankar Bagla v. State of MP, creation of such skeletal legislation with adequate safeguards was upheld.
- Power of Inclusion/Exclusion: The parent law contains lists or schedules of entities like organizations, individuals, goods etc. to which it applies. The subordinate agency is thereafter empowered to add or remove entries to this list thereby expanding or shrinking the Act’s ambit.
Example: Where an Act specified industries for which minimum wages were fixed and permitted government to update the schedule by adding more industries, it was upheld in Edwad Mills v. Ajmer.
- Power to Modify Statute: Enabling the executive to extend statutes to different areas or allow incorporation of specific provisions from one law into another is a form of delegating amendatory authority. Judicial interpretation is required to ensure modifications do not amount to unauthorized substantive changes.
Example: Sec. 7(2) of Punjab Reorganization Act that empowered center to repeal/amend laws concerning divided assets/liabilities was upheld in Bhaiya Lal v. Harikishan Das by reading it narrowly to allow minor adjustments only.
- Taxation Powers: Here substantive power remains with legislature in imposing a tax, while delegated legislation provides for rate fixation and associated aspects. Such delegation for ancillary matters has been allowed by courts.
Example: Upholding customs duties imposed on imported coal under the Coal Mines Act through delegated legislation in Union of India v. Delhi Cloth &General Mills Ltd., the SC held such delegation was only to implement taxation already sanctioned by the law.
Control Over Delegated Legislation
Delegated authorities cannot be allowed unbridled powers. Adequate mechanism to check possible misuse is required, hence subordinate legislation is put under varied controls:
- Judicial Control
Using the tool of judicial review courts ensure delegated legislation does not overstep boundaries by applying the principle of ultra vires to invalidate transgressing rules. Grounds include violation of constitutional provisions or parent statute itself.
Example: Where rule prohibiting coal business without license was struck down in Dwarak Prasad v. Bareilly as violating freedom under Article 19(1)(g).
- Legislative Control:
Parliamentary scrutiny of delegated law making is maintained through devices like laying rules before Houses or conditioning commencement of rules upon legislative approval. Further, Parliament committees also examine delegated legislation.
Example: The Committee on Subordinate Legislation oversees whether rules contradict parent act or trespass into essential legislative domain.
- Procedural Control:
To ensure rule-making powers are carefully exercised various procedural safeguards have been evolved like requirements of prior publication and consultation with affected interests. Breach of mandatory procedures can invalidate rules.
In Raza Buland Sugar Co. v. Municipal Board Rampur, the SC held that when a law stated rules ‘shall’ be published in Hindi, using Urdu papers was valid as object of publicizing the law was met.
Other Aspects of Delegated Legislation Certain other facets concerning delegated legislation as discussed in judicial decisions are:
- Retrospective Operation- Legislature can enact laws having retrospective effect (except in criminal law). But subordinate legislation is prospective by nature. In ITC Bhadrachalam Paper Boards v. MRO, arbitrarily made retrospective rules resulting in tax liability for past periods were struck down by the SC.
- Excluding Judicial Review- Being quintessential to upholding rule of law and constitution, power of courts to review laws cannot be barred. In India legislative provisions barring review have been read down to uphold judicial authority.
- Delay in Framing Rules- Inordinate delay in framing essential rules can severely hamper implementation of the law itself. Courts have had to intervene and issue directions to fill such temporary vacuum. In T.K. Rangarajan v. Govt. of Tamil Nadu, the SC pointed out that GST delay in notifying forms under statutes paralyzes machinery under the law.
- Waiver of Rules- Relaxation in application of rules has to be in conformity with the parent law itself. Authorities cannot ignore or override statutory requirements through administrative instructions, notifications etc. as held in DTC v. BPL.
Conclusion
In today’s regulatory state delegated legislation has become indispensable, yet adequate control mechanisms are essential to prevent misuse and safeguard democratic values. The higher judiciary in India has had a defining role in evolving interpretative principles to keep this sphere of subordinate law making within constitutional bounds. With increasing powers being delegated even by legislatures, continuing vigilance is needed so that the delicate balance between expediency and propriety remains intact while using delegated legislation.