Open Access Research Article
GROWTH AND NEED FOR DELEGATED LEGISLATION BY: ARAVIND A
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Article Details
GROWTH AND
NEED FOR DELEGATED LEGISLATION
AUTHORED BY:
ARAVIND A,
SCHOOL OF
EXCELLENCE IN LAW, TNDALU,
III YEAR,
BA.LL.B (HONS),
MAIL ID:
aravindaravind5900@gmail.com
CONTACT
NO.: 9361710652
MEANING
The Indian Constitution grants the
Legislature the authority to enact laws for the nation, and the Executive is
tasked with administering and executing these laws. However, it's not uncommon
for laws to contain provisions that authorize the executive government, certain
bodies or office-holders, or the judiciary to formulate regulations or other
forms of instruments that, when properly executed, have legal effect. This form
of law is referred to as "delegated legislation", "secondary
legislation", "subordinate legislation", or "legislative
instruments". Another interpretation is that any law enacted by a
statutory authority or local body other than the Legislature, but under the
jurisdiction of a competent legislature, is considered Delegated Legislation.
Delegated legislation holds the same legal status as the Act of Parliament from
which it originated. While this setup may seem to significantly infringe upon
the doctrine of separation of powers, this principle has been largely upheld
through a system that allows parliamentary oversight of executive law-making.
In essence, delegated legislation refers to a subordinate agency's exercise of
legislative power, granted by an act of the legislature. This power is
transferred from the primary lawmaker to a lower entity - which could be the
executive, cabinet, council of ministers, or a specific administrative agency -
through delegation. Regulations and Statutory Rules are frequently encountered
types of Delegated Legislation. They are established by the Executive or a
Minister and apply broadly to the population. By-laws and occasionally
Ordinances are created by a Local Government Authority and apply to residents
within that area. Rules often outline the procedures to be followed in Courts.
Section 129 of the Civil Procedure Code (CPC) empowers various High Courts to
annul, alter or add to any rules contained in the Code.
DEFINITIONS
Sir John Salmond defines "Subordinate
legislation" as legislation originating from any authority other than the
sovereign power. Justice P.B Mukherjee has noted that delegated legislation is
a term that encompasses a wide range of confusion. He perceives it as a
justification for the Legislature, a defence for Executors, and a challenge to
the Constitutional Jurist.
According to M.P Jain, the
term can be understood in two ways:
1. The exercise of power by a
subordinate agency or an agency ranked lower than the legislature, delegated to
it by the Legislature.
2. The supplementary rules
established by the Subordinate Authority in carrying out the power granted to
it by the Legislature.
Delegated legislation is also known
as Subordinate, Ancillary, Administrative legislation, and Quasi-Legislation.
HISTORY OF
DELEGATED LEGISLATION
The origins of delegated power in
India can be traced back to the Charter Act of 1833, during a period when the
East India Company was regaining political influence in India. The Act placed
legislative powers solely in the hands of the Governor-General-in Council, an
executive body. This body was granted the authority to create, amend, or repeal
laws and regulations applicable to all individuals, regardless of nationality.
In 1935, the Government of India Act was passed, which included a comprehensive
plan for delegation. The Committee of Ministers' Powers submitted and approved
a report that firmly established the case for delegation of powers and
delegated legislation as inevitable in India. Despite the Indian Constitution
being based on the separation of powers, a complete separation was not
feasible. Therefore, it maintained the sanctity of the doctrine in a modern
sense. The Indian Constitution does not prohibit delegation of powers. In fact,
there are several provisions where the executive has been granted legislative
powers. For instance, the legislative powers of the President under the Indian
Constitution are significant. The issue of delegated legislation in India arose
during British rule when the controversy on the problem in the West was at its
peak. In independent India, resolving the issue of delegated legislative power
was primarily a conflict between adopting an English or American solution. The
Indian Constitution consists of over four hundred Articles, and it's
unsurprising that some solutions were incorporated by its creators. However,
these provisions were included because politicians in the Constituent Assembly
tended to multiply legal formulations. These issues were minor compared to
other significant constitutional issues that were bypassed by the Assembly and
left to future agreement or judicial interpretation. In Queen v. Burah,
the Privy Council considered the nature and extent of legislative power and its
feasibility for delegation. The Council ruled that the Councils of
Governor-General were supreme Legislature with ample powers entitled to
transfer certain powers to provincial executors. The Privy Council also
accepted the transfer of legislative power to the Executive when passing the
New Delhi Act of 1912. However, the stance shifted post-independence. The
matter of delegated legislation was presented before the Supreme Court in the
case of Jatindra Nath Gupta v. Province of Bihar, and the court finally
expressed its views on the issue in the case of re Delhi Laws Act, 1912. All
these opinions agreed that both the parliament and state legislatures possess
the power to delegate law-making authority. Yet, there were disagreements
regarding the extent of their power to delegate. One perspective held that the
legislature should not delegate its essential function of law-making or
rule-making and should establish guidelines and policies in the parent act.
Conversely, another view argued that legislative power should be delegated to any
extent as long as the legislature did not abdicate its legislative function.
The court adopted the first viewpoint, asserting that the legislative policy or
standard should be explicitly stated in the parent act.
CHARACTERISTICS
Delegated legislation has the
following characteristics:
- These laws are created by individuals or bodies
to whom Parliament has delegated law-making authority.
- They are made in accordance with the Principal
Parliamentary Act, which includes a provision for Subsidiary Legislation and
specifies who has the power to do so under that Act.
- It is required in the enabling or parent Act.
- It encompasses numerous administrative details
that are crucial for ensuring the successful operation of the Act's
provisions.
- It may be administered by Government Departments,
Local Councils, or Courts.
In the case of Devi Das Gopal
Krishan v. State of Punjab, Chief Justice Subba Rao provided another
justification for delegated legislation, stating that due to the complex nature
of a welfare State, the legislature cannot presumably work out all the details
to suit varying aspects of a complex situation. Therefore, it must delegate the
working out of details to the executive or any other agency.
In D. S. Gerewal v. State of
Punjab, Justice K.N. Wanchoo observed that Article 312 of the Indian
Constitution deals with the powers of delegated legislation and stated that
there is nothing in the words of Article 312 which takes away the usual power
of delegation, which ordinarily resides in the legislature.
In Raj Narain Singh v. Chairman Patna
Administration committee, it was held that tampering with the policy of an Act amounts to
excessive delegation.
In J.K. Industries Limited v.
Union of India, the Supreme Court explained the limits on delegated
legislation by stating that though the Legislature has wide powers of
delegation, it cannot delegate uncontrolled power and must confine itself to
legislative policies and guidelines.
REASON FOR
GROWTH OF DELIGATED LEGISLATION
Several factors contribute to the
rapid expansion of delegated legislation in contemporary times. The
transformation of governance from a 'police state' to a 'welfare state' has
increased the role and necessity of delegated legislation. The reasons for this
growth can be outlined as follows:
Parliamentary Time Constraints: As state activities continue to
expand, it becomes challenging for Parliament to legislate on every issue due
to their extensive workload and the need to legislate on various matters.
Parliament, preoccupied with foreign policy and political issues, often only
drafts the broad aspects of legislation, leaving the executive or its
subordinates to fill in the details according to necessary rules and
regulations.
Technical Complexity: As society progresses, matters
become more complex and technical. Understanding every topic's intricacy
requires expertise in that particular field. Over time, it has been observed
that some legislators may only be familiar with politics or a few topics.
Therefore, after Parliament frames policies on a topic, it is handed over to a
government department or an individual familiar with that topic's
technicalities.
Flexibility: Delegated legislation allows for
more expedient law-making compared to the slow parliamentary amendment process.
For instance, regulations related to police, bank rates, import and export,
foreign exchange, etc., can be quickly enacted with the help of executives.
Also, Parliament cannot anticipate every contingency while enacting a law, so
delegating tasks to lower bodies can ensure smoother and more efficient
operations.
Emergency Situations: In emergencies, quick action is
crucial. The legislature may not be equipped to provide urgent solutions in
such situations. Delegated legislation is an effective way to address these situations
by granting wide powers to the executive during times of emergency and war.
Experimentation: Delegated legislation allows the
Executive to experiment with new laws and assess their effectiveness. This
approach enables the use of experience and implementation of necessary changes
in the application of provisions made by Parliament.
NEED FOR
DELEGATED LEGISLATION
Delegated legislation has become an
indispensable tool in today’s governance, particularly for managing a large and
diverse population. It should not only be allowed but also wisely and
efficiently used to yield the best results that align with ground realities. As
societies become more complex, there is a growing trend towards delegating the
legislative process to subordinate authorities. A significant portion of
today’s legislation is issued by administrative authorities, making the
delegation of law-making powers an absolute necessity.
Here are some reasons why delegated
legislation is essential for effective and practical governance:
Easing the Legislature’s Load: Parliament often finds itself
overburdened. By delegating administrative rule-making, the quality of work can
be enhanced as the subordinate authority can provide more attention to detail.
This delegation can save crucial time for the legislature, which can be
diverted towards other important work.
Decentralizing Law-Making: The principle of ‘empathy is
stronger than sympathy’ best explains this. When law-making power is delegated
to those who can better understand the needs of the people on the ground, the
resulting laws are more likely to be accepted by those governed.
Expertise in Specific Subjects: With increasing advancements in
various fields, particularly technology, modern societies have become complex.
Delegating tasks ensures that officials with specific knowledge related to the
issue can propose more effective formulations and details.
Flexibility in Legislation: Delegated legislation allows for
flexibility in law, enabling Parliament to focus on broad principles and
allowing the executive to work out the details as suited to local people.
Experimentation on a Small Scale: Certain laws can be implemented on
a small scale by the executive to test their efficacy. This approach helps
improve governance as laws are tried and tested at a local level before being
implemented nationally.
Considering these advantages, it’s
clear that delegated legislation should be encouraged and widely used to make
governance easier and more effective for such a large population.
In the case of Arvinder Singh v.
State of Punjab, Justice Krishna Iyer noted that modern administration’s
complexities are so intricate and filled with details, urgencies, difficulties,
and need for flexibility that extensive legislatures may struggle if they must
directly handle all legislative business. Therefore, delegating some part of
legislative power becomes a necessity for viability.
REFERENCE
Article Information
GROWTH AND NEED FOR DELEGATED LEGISLATION BY: ARAVIND A
Authors: ARAVIND A
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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