Delegated Legislation in India | Law Optional Notes for UPSC PDF Download

Introduction

• In the realm of legal theory, one of the most contentious issues is delegated legislation due to its numerous implications. Indian democracy is built on four key pillars: the legislature, the executive, the judiciary, and the press. The constitution empowers these pillars not to interfere in each other's domains. According to the constitution, the legislature has the authority to make laws, the executive is responsible for enforcing them, and the judiciary resolves disputes and administers justice. However, it's essential to acknowledge that in welfare states, the legislature has a multitude of functions to perform, making it challenging for them to oversee every detail.
• Given the increasing legislative demands, legislatures often struggle to allocate sufficient time to legislate on every intricate matter. They tend to focus on policy issues and delegate a significant portion of the rule-making process to the executive to achieve the legislature's objectives. This is where the concept of delegated legislation comes into play. Delegation is considered necessary and is justified based on the principles of flexibility, adaptability, and speed. This delegated authority is also referred to as "secondary legislation" or "subordinate legislation." The law that grants the executive the power to create rules is known as the "Enabling Statute" or "Parent Act." The traditional majority rule system has rendered authoritative controls insufficient. Defining the term "delegated legislation" can be quite challenging.

Meaning of delegated legislation

• The term "delegated legislation" refers to the exercise of legislative power by an agent or authority that holds a lower rank than the main Legislature or is subordinate to it. Delegated legislation, also known as secondary legislation, involves the creation of laws and regulations by individuals or bodies other than the Parliament. Parliament, through an Act of Parliament, can authorize someone else or a body to create legislation. An Act of Parliament establishes the framework for a specific law and usually outlines the purpose of the Act. By delegating legislative authority to the Executive or a subordinate entity, Parliament empowers them to add more detailed provisions to an Act of Parliament. In this way, through primary legislation (such as an Act of Parliament), Parliament permits others to create laws and regulations through delegated legislation. The legislation created by the authorized person or body must align with the purpose specified in the Act of Parliament.
• Sir John Salmond defines subordinate legislation as legislation that originates from an authority other than the sovereign power.
• Justice P.B Mukherjee views delegated legislation as a term that leads to confusion, serving as an excuse for the Legislature, a shield for Executors, and a challenge for Constitutional Jurists.
• According to M.P Jain, the term can be understood in two ways:
  • Legislation exercised by a subordinate agency or an agency of lower rank, delegated to it by the Legislature.
  • The subsidiary rules established by the Subordinate Authority while executing the powers granted to it by the Legislature.
• Delegated legislation is also referred to as Subordinate Legislation, Ancillary Legislation, Administrative Legislation, and Quasi-Legislation.

History of delegated legislation in India

• The history of delegated power can be traced back to the Charter Act of 1833 when the East India Company was regaining political influence in India. This act vested administrative powers solely in the hands of the Governor-General-in-Council, an official body. The Governor-General-in-Council was empowered to create laws and regulations to revoke, amend, or modify existing laws or regulations, applying to all individuals regardless of their nationality. In 1935, the Government of India Act, 1935 was passed, which included a comprehensive framework for delegation. The report of the Committee on Ministers' Powers was submitted and approved, settling the case for the delegation of powers and the enactment of laws, which was deemed necessary in India.
• However, the Indian Constitution is based on the separation of powers, and complete separation of powers was not feasible. Therefore, it maintained the sanctity of the rule in the modern sense. The Indian Constitution does not prohibit the delegation of powers. There are several provisions in which the executive has been granted legislative powers. For example, the executive powers of the President under the Indian Constitution are significant. The issue of delegation of legislative power in India arose during British rule when the debate on this issue in the West was ongoing. In independent India, resolving the issue of the delegation of legislative power involved a conflict between the English and American models of resolution.
• The Constitution of India consists of more than four hundred Articles, and it's not surprising that the Constitution makers included provisions to address this issue. These provisions were incorporated because the politicians in the Constituent Assembly tended to create legal formulations for even minor issues, compared to the more significant constitutional issues left for future agreement or judicial interpretation. In the case of Queen v. Burah, the nature and extent of legislative power and the possibility of delegation were considered by the Privy Council. The Privy Council, in this case, ruled that the Councils of Governor-General were the supreme Legislature with ample powers and the authority to transfer certain powers to provincial executives. During the passage of the New Delhi Act of 1912, the Privy Council accepted the transfer of legislative power to the Executive.

Delegated legislation under the Constitution of India

Delegated legislation is a concept not explicitly mentioned in the Indian Constitution but can be inferred from Article 312. This article grants the Rajya Sabha the authority to establish a new branch of the All India Service with a two-thirds majority vote, implying that some legislative powers are delegated to this new body.
Several cases help in understanding the concept of delegated legislation under the Indian Constitution:

D.S. Grewal v. The State of Punjab

• Facts: This case challenged the constitutionality of the All India Service Act, 1951. The appellant, who was appointed to the All India Service, was reverted to the post of Assistant Superintendent of Police and faced disciplinary action.
• Judgment: The Supreme Court, through Justice K.N. Wanchu, examined the power of delegated legislation under Article 312 of the Indian Constitution. The appellant's removal could be initiated by the Central Government, and Article 312 did not restrict the power of delegation.

Panama Refining Co. v. Rayan (United States Case)

• Facts: Section 9(c) of the National Industrial Recovery Act, 1933, granted the President of the United States authority to issue orders with potential penalties for violations. The President delegated this power to the Secretary of Interior, who issued regulations to enforce the President's orders.
• Judgment: The U.S. Supreme Court ruled that the delegation of legislative power by the President was unconstitutional. Congress can delegate power to the Executive only when clear policies and standards are established in the statute.

Sikkim v. Surendra Sharma

• Facts: After Sikkim became a state of India, the Directorate of Survey and Settlement advertised for temporary posts. Some employees, who were not locals, were terminated from their jobs, leading to a writ petition.
• Judgment: The judge held that terminating employees solely based on non-local status violated Articles 14 and 16 of the Indian Constitution. All rules and legislation created under the power granted by sub-clause (k) of Article 371F were considered subordinate legislation. This article was added to the Constitution through the 36th Constitutional Amendment.

Types of Delegated Legislation

Delegated legislation involves granting authority to individuals or entities of lower rank to create laws.
Various types of delegated legislation exist, including:

• Orders in Councils: These are forms of delegated legislation issued by the Queens or the Privy Councils. Orders in Council allow Parliament to establish laws without undergoing the usual parliamentary procedures. Today, they are primarily used to give legal effect to European directives. Orders issued under the Queen's privilege or the Crown's authority are subject to judicial review, while those issued by Parliament may or may not be reviewable by the courts, depending on whether they fall within the prescribed limits of the Act of Parliament. Essentially, these orders are equivalent to executive legislation, with little difference between the two. Privy Council meetings often involve a few ministers, the President, Councils, and the Clerk of Privy Councils, signifying that such orders are issued by the Executive exercising the Council's powers.
• Rules of the Supreme Court and the County Courts: In England, certain courts, like the Supreme Court and County Courts, are granted substantial authority to establish rules and procedures. This responsibility is entrusted to the Rules Committee of the Supreme Court and the County Courts. Allowing the judicial branch to oversee its procedural laws has advantages, as those with expertise in the field can make informed decisions. These rules are not subject to parliamentary control and come into effect when the Lord Chancellor, with the consent of the Rules Committee of the Supreme Court, confirms them.
• Departmental or Executive instructions or regulations: Delegated legislation occurs when the legislative power is directly given to administrative bodies, such as boards, ministers, or committees. This form of delegation sometimes involves granting broad powers to the administration, which may not be easily controlled by the judiciary. Delegated legislation is widely used in contemporary governance, with Parliament typically establishing the broad framework of legislation, leaving the details to be determined by administrators.
• Delegated legislation by laws: This type can occur in two ways. First, laws passed by autonomous bodies, such as corporations, can create delegated legislation. Second, local authorities can establish delegated legislation through their own by-laws.
  • By-laws of autonomous bodies: These bodies have the authority to pass by-laws that pertain to their operations and affect people in their locality or a specific area. For instance, they can enact rules related to public utilities like water and electricity. These authorities are usually empowered to establish regulations for their own governance. Such by-laws are subject to judicial review to ensure they do not exceed the powers granted by the Parent Statute. An example of an autonomous body is an association of employers, whose rules are sometimes labeled as voluntary but are practically binding on members, similar to the rules of professional associations or industrial organizations.
  • By-laws of local authorities: Parliament has the authority to establish new local bodies or modify existing ones, empowering them to create by-laws for specific purposes. These authorities exercise delegated powers concerning public health, safety, and effective governance. Breaching these by-laws can result in penalties.

Reasons for growth of Delegated Legislation

There are several reasons for the significant growth of delegated legislation in contemporary governance.
This growth can be attributed to the following factors:

• Pressure on Parliament's Time: The scope of state activities has expanded significantly, making it challenging for Parliament to legislate on every detail of various matters. Parliament is occupied with foreign policy, political issues, and other pressing matters, leaving limited time for detailed lawmaking. Consequently, Parliament often outlines the broad principles of legislation and delegates the task of filling in the specifics to the executive or subordinate authorities. This approach is akin to providing a framework that the subordinates must flesh out with detailed rules and regulations. Delegating such power is seen as essential for effective governance.
• Technical Complexity: Society has become more complex and technical, requiring expertise in various fields to understand intricate matters. Legislators may not possess the specialized knowledge required to draft comprehensive laws on every subject. Therefore, after Parliament establishes policies, the responsibility for detailing the technical aspects of a particular topic is often delegated to government departments or individuals with expertise in that field.
• Flexibility: The process of amending laws through Parliament can be slow and cumbersome. Delegated legislation offers a quicker way to adapt and modify laws as needed. For example, regulations related to police operations, bank rates, import-export policies, foreign exchange, and more can be swiftly adjusted to respond to changing circumstances. Delegated legislation allows for a more agile response to unforeseen contingencies.
• Emergency Situations: During emergencies, such as wars, natural disasters, or economic crises, quick and decisive action is essential. Legislatures are typically ill-equipped to respond promptly in such situations. Delegated legislation empowers the executive branch to address emergencies effectively. For example, during World Wars I and II, England passed legislation like the Defence of the Realm Act 1914-15 and the Emergency Power Act, 1920. Similarly, in cases of inflation, floods, epidemics, economic downturns, and other crises, delegated legislation enables immediate remedial actions.
• Experimentation: Delegated legislation allows the executive to experiment with different approaches to governance. This experimentation enables the evaluation of whether a particular law is working effectively. It allows for adjustments and amendments based on practical experience. For instance, traffic regulations on the road can be experimented with, and necessary changes can be made based on the outcomes and public feedback.
• Complexity of Modern Administration: Modern administrations have taken on more responsibilities related to citizens' welfare, including employment, healthcare, education, and trade regulation. This increased complexity necessitates the delegation of authority to various bodies to effectively implement social and economic policies. In some cases, the administration must possess broad powers to enforce policies related to trade, business, or property control.

In conclusion, the growth of delegated legislation is a response to the evolving needs of governance in contemporary society. It provides a practical and flexible means of addressing complex issues, emergencies, and the technicalities of modern administration, ensuring the smooth functioning of a country's governance system.

Constitutionality of delegated legislation

The constitutionality of delegated legislation refers to the extent to which a country's constitution allows its legislature to delegate its rule-making powers to other administrative agencies. Delegated legislation is often used to address socio-economic problems and challenges in the governance of a nation.
Here's an overview of the position of delegated legislation in the United States, England, and India:

Position in the United States

• In the United States, delegated legislation is theoretically not allowed due to two fundamental reasons: the "Separation of Powers" doctrine and the principle of "Delegatus non potest delegare." The U.S. Constitution does not contain any provisions allowing the delegation of legislative powers from Congress to the Executive or other bodies. This strict interpretation is rooted in the political theories of philosophers like John Locke and Montesquieu, which influenced the framers of the American Constitution.
• John Locke argued against the delegation of legislative powers, emphasizing the need for separate legislative and executive branches to prevent the misuse of power. Montesquieu's concept of the "Separation of Powers" further reinforced the idea that one person or body should not exercise all three powers of government: legislative, executive, and judicial.
• While the U.S. Constitution theoretically prohibits delegated legislation, in practice, Congress often delegates rule-making powers to the Executive.

Position in England

• In England, the core principle of the constitution is parliamentary sovereignty. The UK Parliament is supreme, and there are no constitutional limitations on its powers. Parliament in England has extensive authority to delegate its legislative powers to the Executive or other subordinate bodies. The Donoughmore Committee, also known as the Committee on Ministers' Powers, recognized this practice.
• In England, legislation is categorized into three parts:
  • Legislation made by the Crown under prerogative powers.
  • Legislation made by the King in Parliament (Acts of Parliament).
  • Legislation made by bodies to whom Parliament delegates law-making powers.
• This approach acknowledges that Parliament may delegate legislative authority to other bodies, which is considered necessary for modern governance.

Position in India

The constitutionality of delegated legislation in India has evolved over time, with distinctions between the pre-independence and post-independence periods.

Pre-Independence

During the pre-independence era, the Privy Council, in cases like Queen v. Burah and King v. Benori Lal Sharma, upheld delegated legislation based on "Conditional Legislation." The Privy Council viewed delegated legislation as a means to assist in framing detailed rules and regulations that supplement primary legislation. It was considered a way to implement the legislative policy effectively.

Post-Independence

After independence, India's Constitution does not explicitly provide the same level of delegation as the British Parliament does. The extent of permissible delegation in India is determined by the specific provisions of the Indian Constitution.

In cases like Raj Narain Singh v. Chairman, Patna Administration Committee and Lachmi Narain v. Union of India, the Supreme Court of India upheld the delegation of power from the legislature to the executive, provided that such delegation was within the framework of the Constitution.

In summary, the constitutionality of delegated legislation varies among countries. While the United States largely restricts it, England and India have adopted different approaches, with England embracing it more openly due to parliamentary sovereignty, and India allowing it within the boundaries set by its Constitution.

Advantages of delegated legislation

Delegated legislation, which involves granting the authority to make laws to lower-ranking bodies or executives, offers several advantages in a democratic country:

• Reduces Parliament Workload: Parliament has a limited timeframe to pass numerous pieces of legislation. Detailed enactment of laws can be time-consuming and costly. Delegating legislative authority to experts or subordinate bodies saves time and allows Parliament to focus on broader legislative principles.
• Technical Expertise: Modern issues often require technical expertise. Parliament may lack comprehensive knowledge in various fields. Delegating authority to experts in specific areas ensures that laws are well-informed and technically sound.
• Decentralized Decision-Making: Local councils have a better understanding of their constituencies and can make laws that address the unique needs of their areas. This decentralization of legislative power allows for more effective governance.
• Emergency Response: Delegated legislation enables swift action during emergencies when immediate legislative measures are required. Parliament's lengthy processes may not be suitable in urgent situations.
• Flexibility: Parliament can outline the main principles of a law while allowing executives to fill in the details. This flexibility allows for quick adjustments without the need for formal amendments.
• Consideration of Affected Parties: Delegating legislative authority to those familiar with the affected parties' interests ensures that laws are better tailored to their needs.
• Experimentation: Delegated legislation can serve as a testing ground for new laws. If a law proves ineffective, it can be amended or replaced more swiftly than primary legislation.

Judicial Control Over Delegated Legislation

In India, the judiciary plays a crucial role in controlling delegated legislation. It can challenge delegated legislation on two main grounds:

• Unconstitutionality: Delegated legislation should not violate the constitution or parent acts from which it derives its authority. If it does, the court can declare it void.
• Improper Exercise of Statutory Power: If the exercise of legislative power by the executive is beyond the scope of the enabling statutes or inconsistent with them, it can be challenged in court.
• In the United States, the judicial control over delegated legislation is based on the doctrine of ultra vires, meaning beyond the legal power or authority granted. The courts employ two main approaches to justify delegation of legislative power to the executive:
• Filling Up the Details Approach: Congress sets the standard policy, and executives fill in the details within those standards.
• Intelligible Principle Approach: Courts review delegated legislation to ensure it aligns with enabling statutes and follows the principles established by Congress.
• Several cases illustrate judicial control over delegated legislation, such as:
• Kruse v. Johnson: Delegated by-laws should not be partial, manifestly unjust, involve bad faith, or oppressively interfere with people's rights.
• Delhi Law Act Case: Delegated power to repeal pre-existing laws was held ultra vires.
• Chintaman Rao’s Case: A prohibition on making bidis during the agricultural season violated Article 19(1)(g) of the Indian Constitution.
• Chandran v. R: Delegated by-laws must stay within the limits set by the legislature; exceeding those limits can lead to their invalidation.

In summary, while delegated legislation offers several advantages, it remains subject to judicial oversight to ensure it aligns with the constitution, enabling statutes, and the principles set by the legislature.

Effectiveness of Parliamentary control over delegated legislation

• Parliamentary control over delegated legislation is a crucial aspect of maintaining accountability in a democratic system. While Parliament has the authority to delegate legislative powers to other entities, it is equally responsible for ensuring that these powers are exercised in the public interest and not abused. If there is any misuse of delegated powers, Parliament must have the means to rectify the situation.
• In the case of Avinder Singh v. State of Punjab, Justice Krishna Iyer emphasized that parliamentary control over delegated legislation should be an ongoing and protected necessity. However, in practice, the control exercised by Parliament, especially in countries with parliamentary systems like India, is often more theoretical than practical. The effectiveness of parliamentary control is sometimes limited.
• Jain and Jain argued that in a parliamentary democracy, it is both the right and duty of the legislature to delegate legislative powers to the government. However, it is also the legislature's responsibility to oversee how its agent, the executive, carries out this delegated authority. This includes supervising and controlling the actual exercise of legislative power by the executive.
• In the United States, where the system is not parliamentary, congressional control over delegated regulation is generally indirect. While Congress can direct administrative agencies to provide periodic reports and account for their activities, there is no direct accountability of the executive to the legislature. This is because the President of the United States is not answerable to Congress in the same way a Prime Minister is to a parliamentary legislature.
• In contrast, India's parliamentary form of government allows for more direct control over the executive by Parliament. The Prime Minister, as the head of the government, is accountable to the legislature. India has established committees in Parliament for both houses that are responsible for scrutinizing statutory regulations and ensuring that delegated powers are exercised within the limits set by the Parent Act or the Constitution. These committees play a vital role in oversight and control.
• Two legal cases, Kruse v. Johnson and Chintaman Rao Case, illustrate how the judiciary can also exercise control over delegated legislation. In the Kruse v. Johnson case, a by-law prohibiting singing or music within a certain distance of a dwelling house was challenged, but the court upheld it, finding it reasonable and nondiscriminatory. In the Chintaman Rao Case, an order prohibiting the manufacturing of bidis during the agricultural season was deemed violative of Article 19(1)(g) of the Indian Constitution, emphasizing the need for delegated legislation to adhere to constitutional principles.
• In conclusion, parliamentary control over delegated legislation is a crucial aspect of a democratic system. While the effectiveness of this control varies by country and system, it plays a vital role in ensuring that legislative powers delegated to the executive are used responsibly and in the public interest. Legal cases and committees in Parliament are among the mechanisms used to oversee and control delegated legislation.

Criticism on delegated legislation

Following are the criticism of delegated legislation:

• Delegated legislation results in overlapping of functioning  as the delegated authorities get work to amend the legislation that is the function of the legislators.
• It has been a matter of question that if the Legislature control has come down after the arrival of the delegated legislation.
• Unelected people cannot make much delegated legislation as it would be against the spirit of democracy.
• After getting too much power from the Legislature, the Executive has encroached upon the domain of legislature by making rules and regulations.
• The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment. Parliament, along these lines, has an absence of authority over appointed enactment, and this can prompt irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners which Parliament had not foreseen when it was given the power through the Act of Parliament.
• Delegated legislation makes laws without much discussion. So, it may or may not be better for the public.
• Designated legislation by and large experiences an absence of exposure. Since the law made by a statutory authority not informed to general society. Then again, the laws of the Parliament are generally broadcasted. The purpose of the absence of exposure is the enormous degree of enactment that is being assigned. There has likewise been concern communicated that an excess of law is made through appointed enactment.
• It can possibly be misused for political gain. The executive makes law according to what the political parties. Hence, it results in the misuse of the legislation made by the Executive by the ruling party.
• Executives become too powerful as it already has the power of executing any laws and legislation and now the Legislature is delegating its legislative power to the Executive. So, both the power are in the hands of the executives now he can use this power in whatever way he wants to use it.
• It is against the theory of the power of separation which has been given by the famous political thinker Montesquieu.

Conclusion

• Delegated or subordinate legislation refers to rules of law created under the authority of an Act of Parliament. While the power to make laws resides with the legislature, it can delegate this authority to other entities or individuals through what is known as an Enabling Act. The Enabling Act outlines broad principles, and the detailed rules are formulated by the delegated authority.
• To ensure that parliamentary control over delegated legislation remains effective in India, several measures can be taken. Parliamentary committees responsible for oversight should be strengthened, and a separate law, such as the Statutory Instruments Act, should be enacted to establish consistent standards for the laying and publication of delegated legislation. These committees could be empowered by a dedicated regulatory body to enhance their effectiveness in monitoring delegated legislation. Additionally, the principles and rules established by the Executive should be adapted to the needs of the modern era.
• While the Indian Constitution does not explicitly provide for the delegation of legislative power, the legal practice surrounding delegated legislation aligns with the intentions of the Constitution's framers, who aimed to ensure the adaptability of the Constitution to changing circumstances. To prevent the misuse of delegated legislative powers by the government, it is crucial to implement robust control mechanisms similar to those seen in the United States, which India has yet to fully adopt.