Meaning of Delegated Legislation, Types of Delegated Legislation, Control of Delegated Legislation


Introduction

In this post, we will cover below things
  • What is delegated legislation ?
  • Why do we need delegated legislation ?
    • Growth of delegated legislation
  • What is the problem with delegated legislation ?
  • Types of Delegated Legislation
  • What CAN and what CANNOT be delegated ?
  • Control of delegated legislation

What is delegated legislation ?

Parliament or Senate are primarily responsible for formulation of law. We call them legislature. In India, at central level Parliament is body who makes a law. It consist of MPs(Lok Sabha, Rajya Sabha). At state level we have Legislative Assembly (Vidhan Sabha) and Member of Legislative Assembly makes a Laws.

After Law making comes the executives. They are responsible for executing the Laws. Generally President/Prime Minster is head of executive body. Ministers are also executive. Their main purpose is to execute the law.

There is separation of power. Legislature will make the law, Executives will executes the law. Sometimes. for various practical reason, it's not possible for Legislature to formulate a Law in extreme detail.

Why would they spend a time discussing on amount of tax needed to be imposed in small items like Keyboard, Wheat, Cloths, Needle, and Law Books. In such scenario, what they do is they make a Law wherein they say Government cannot tax more than 30%, and what tax to be imposed on individual item will be decided by Ministers or other administrative authority.

Here, in nutshell they have passed some authority to executives to impose some tax on individual item according to situation, necessity of items etc. This passing of some authority by legislature to an executive in Law formulation, filing the details, or making the rules is nothing but a delegation.

Well, this is to illustrate the idea of delegated legislation. Let us see some technical definition

As per Halsbury
When an instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation

Delegated Legislation is also known as Ancillary, Subordinate or Administrative Legislation.

Alex Salmond about Subordinate legislation
  • Legislation is either subordinate or supreme
  • The former proceeds from sovereign power or superior powers, the latter flows from any authority other than the sovereign power, and is, therefore dependent for it's existence and continuation of superior or supreme authority
Jain and Jain about delegated legislation
Exercise by subordinate agency of the legislative power delegated to it by legislature.
Delegated legislation include Rules, Notifications and bye-laws.

Article 13(3) considers Ordinances, Rules, Notifications by laws on part with Law.

 Why do we need delegated legislation ?

We need delegated legislation for below purpose

  1. Time of Lawmakers : Currently government deals with almost all the aspect of Citizen's life. Making Laws on all the subject and making quality law is time taking process. Hence legislature only formulates overall policy and outline and delegate the power to fill in the details to executive. It saves the time of legislature. (MPs Fight in Parliament., lawmakers are so busy fighting,they have to delegate lawmaking power to executives)
  2. Technicality : Many a times legislature is not an expert on some subject matter. (BJP's 40% MPs have Criminal Background). They may be expert in committing a Crime, fooling people on promise but they may not be an expert in Biotechnology, Artificial Intelligence etc. In such a case legislature may delegate Law making power to someone who is expert in these areas.
  3. Flexibility : Law cannot be rigid. Changes are inevitable. Hence to accommodate the changes legislature may delegate powers to executives so that administrator at the time can form proper rules that suits the time to handle situations not envisaged in Law. Delegated legislation in a way offers flexibility
  4. Emergency : Currently world is facing CORONA problem. Law making process is slow and time taking. In cases of emergencies quick action is needed. The legislative process is not equipped to provide urgent solution to meet the solution, and hence delegated legislation is convenient, or rather only remedy available to deal with such situation. Emergencies could be anything like Pandemic, Floods, Inflation, Economic Depression
  5. Removal of Difficulty : Parliament while at the time of making of the law may not foresee or guess the difficulties of future.  Many a time then legislature provide "removal of difficulty" clause and gives power to executives.

Growth of Delegated Legislation

A trends of growing delegated legislation have been observed lately with growth of State powers. There are various factors that contributed to growth of delegated legislation.

 A traditional theory of "laissez fair" (Free market with Minimal State intervention) has been given up the State and now old "Police State" had become "Welfare State". Because of this change in philosophy states functions have grown exponentially in recent times. Due to this delegate legislation had become essential and inevitable.


Our judiciary also recognized the need of delegated legislation.

In Arvinder Singh Vs State of Punjab, AIR 1979, SC 321, Justice Krishna Ayer commented
That the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to start if they must directly and comprehensively handle legislative business in their plentitude, proliferation and particularization Delegation of some  part of legislative power becomes a compulsive necessity for viability.
 

What is the problem with delegated legislation?

There is serious, serious problem with delegated legislation.

You must be aware about separation of Power. Separation of Power is essential for checks and balances. "Power corrupts, and absolute power corrupts absolutely". Therefore separate powers are give to each branch of State i.e Legislature, Executive and Judiciary.

Delegated legislation kind of blur the line of separation of power, and we could be in danger if too much power is given to too few people.

Delegated legislation could be a threat to liberty.

Lord Heward made a strong case against delegated legislation. He considered increased government control and interference in individual activity as usurpation of legislative power by executives. He showed the dangers inherent in the practice and argued that wide powers in legislature entrusted to the executives lead to absolute tyranny and despotism.

Remember Hitler ? He was given too much power. Despotic rule of him turned out to be disastrous for Germany. Hence if legislature start delegated most of the power to executive it could turn out to be dangerous for people.

Types/Classification of Delegated Legislation

Now, they are of different types. Let's first consider two major ones

1) Skeleton Delegation : In such type, the main Law have broader set of principles and objective and it delegates the power to executives to set out rules to achieve the object of the Act. In Companies Act, 2013 Government is empowered to make different rules regarding Accounts, Filing of Reports etc.

2) Machinery Type : This is most common type of delegation, where act is supplemented by machinery provision. Power in below things is conferred to executives or administrative authority
  • The kind of forms
  • The method of publication
  • The manner of making returns
  • Administrative details
  • Application Format
3) Henry VIII Clause : Well, in England power was given to executives to repeal or amend any law because King came to exercise power to repeal parliamentary law. King is King and he could repeal/amend any law and if law contain such clause that would be Henry VIII Clause. However modern day delegation don't give such power to executives. Still in India, Article 372 have given similar power to President to repeal/modify to bring them in accord with Constitution. Though this power was never exercised.


Apart from these types, Delegated legislation have been classified on basis of different criteria.

Classification Based on Title

Based on title delegated legislation can be classified into following
  1. Rules
  2. Regulation
  3. By-Laws
  4. Notifications
  5. Schemes
  6. Orders
  7. Ordinances
  8. Directions

Discretion based classification

A discretion may be conferred on the executives to bring the Act into operation on fulfillment of certain condition. Such legislations are called "conditional" or "contingent" legislation.

Purpose based classification

A classification may be based on the nature and extent of power conferred and purpose for which such power can be exercised

An executive can be empowered
  • To appoint a day to Act to come into force. (e.g Companies Act, 2013)
  • To supply details
  • To extend the provisions of the Act to other areas
  • To exclude or include operation of the Act to territories, persons, commodities industry
  • To suspend or modify provision of the act

Authority based classification

A statute may empower the executives to delegate further power conferred on it to it's subordinate authority. This is also known as "sub delegation".

What CAN and What CANNOT be delegated ?

Not everything can be delegated. There are limits to it.

What can be delegated

  • Commencement of Statute: To decide a date from which law will come into effect can be delegated to executive. Law will have something like "Act shall come into force on such date as Central Government may notify". In such case Act becomes effective when government issue notification.
  • Supplying the details : Legislature may outline the Act. They prepare the skeleton laying out the objective of the Act and ask executive to make the rules about how to achieve those objectives. For example Section 3 of the All India Service Act, 1951 authorizes Central Government to make rules to regulate the condition of All India Service.
  • Suspension : Recently Central Government suspended the provision of Insolvency and Bankruptcy Code. Act passed by parliament may authorize government to suspend or relax the provision of the Act.
  • Modification : Sometimes Executives are given power to modify the Act. This is like passing legislative power. But when this is to be done, great care has to be taken care by Legislature. Legislature should mention the need to delegate such power, and danger of misuse of power.
  • Prescribing Punishment: Power to prescribe punishment can be delegated. Generally Law will set Maximum limit and executive will keep changing the punishment within that limit.
  • Henry VIII Clause : Power is given to executive to remove the difficulties while implementing the act.

What cannot be delegated

  • Law making power cannot be delegated. It mean that Central Government cannot make a law on it's own.
  • Power to repeal the law cannot be delegated.
  • Power to remove jurisdiction of court by an executive cannot be delegated.

Control of Delegated Legislation

Delegated legislations are called as necessary evil. We already discussed what is the problem with delegated legislation. There are great danger of abusing the power by administrative authorities or executive. Therefore delegated legislations should be controlled.

There are different ways to control delegated legislation such as parliamentary control, judicial control, procedural control etc. Since this is huge topic in itself we have discussed this separately here.










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