A SUCCINCT STUDY ON DELEGATED LEGISLATION IN INDIA
The author of this blog is Mr. Utkarsh Dixit, 3rd year, LL.B.(Hons.) from Faculty Of Law, University Of Lucknow.
Introduction
The pillar of any government mainly depend on three functions namely, legislative, executive and judiciary. These are the most basic functions of a government. All the other functions fall in these heads. But, these functions cannot be done by an individual, neither by a group, because functions of government itself is a complex structure and no single group have capacity or expertise to perform those assigned tasks. It will be a predicament for an individual or a group. Here comes the role of delegation and this process of delegation in legislature work is known as delegated legislation.
Meaning
Delegated legislation is a process by which the executive authority is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature’s authority. [1]
Delegated legislation is also alluded as secondary legislation or auxiliary legislation. Delegated legislation is enactment made by an individual or body other than Parliament. Parliament can allow someone else or body to make legislation. An Act of Parliament makes the system of a specific law and tends just to contain a layout of the motivation behind the Act. [2]
Importance/ Advantages of Delegated legislation
There are a few points of interest of Delegated enactment which makes it significant for present day organization. Some of them are as follows-
Firstly, it Spares Time for the Parliament. There are a few reasons why delegated legislation is significant. Right off the bat, it abstains from over-burdening the constrained Parliamentary plan as appointed legislation can be altered as well as made without going an Act through Parliament, which can be tedious.
Secondly, it empowers flexibility. Changes can accordingly be made to the law without the need to have another Act of Parliament and it further stays away from Parliament investing a tons of their energy in specialized issues.
Thirdly, administrative legislation provides for expert legislation. The guidelines are being drafted by the specialists acquainted with genuine conditions in suitable divisions. [3]
There is rundown of advantages of delegated legislation such as it can manage a crisis circumstance as it emerges without trusting that an Act will be gone through Parliament to determine the specific circumstance, it is done in consultation with affected interest, it set up new standards of laying rules, etc.
Criticisms/ Disadvantages of Delegated LegislationEvery action has an equal and opposite reaction. So, is true with delegated legislation. It isn't without its reactions.
Firstly, it is considered as undemocratic procedure because laws are being made or amended by officers who are not elected by people. This action is against the spirit of democracy.
Secondly, delegated legislation is dependent upon less Parliamentary investigation than another essential enactment. Parliament therefore has a lack of control over delegated legislation, and this can prompt irregularities in law.[4]
It has also been criticized because of the obvious absence of debate, issue of sub-delegation, lack of publication, unnecessary interference, etc.
Position of Delegated Legislation in Different Countries
a) Position in England
Parliament in England is preeminent and supreme and, in this manner, unrestricted by any established impediments, parliament has had the option to give wide administrative powers on official. However, sway of parliament does not imply that there are no principles to which practice of delegation must conform. The Committee on Ministers' Powers in its third proposal has recommended that the exact furthest reaches of law making power which parliaments means to give on a pastor ought to consistently be explicitly characterized in clear language by the rule.
This laying of limitation has prominent significance to England than to some other nation because in light of the fact that without any sacred impediment, it is based on those parliamentary cutoff points alone that the judicial review can be exercised.[5]
b) Position in USA
In USA, the rules regarding delegation of legislative powers are essentially founded on the doctrine of ‘Separation of Power’. It has been drawn from the concept of “delegates non potest delegare”, which means ‘no delegated powers can be further delegated’ [6] . In the US, the doctrine of Separation of Power has been raised to a sacred status. The US Supreme Court [7] is of the view that the Doctrine of Separation of Power must be viewed as a fundamental guideline hidden the Constitution, and that the powers vested to one organ must exercise it without infringing upon the powers of another. [8]
Introduction
The pillar of any government mainly depend on three functions namely, legislative, executive and judiciary. These are the most basic functions of a government. All the other functions fall in these heads. But, these functions cannot be done by an individual, neither by a group, because functions of government itself is a complex structure and no single group have capacity or expertise to perform those assigned tasks. It will be a predicament for an individual or a group. Here comes the role of delegation and this process of delegation in legislature work is known as delegated legislation.
Meaning
Delegated legislation is a process by which the executive authority is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature’s authority. [1]
Delegated legislation is also alluded as secondary legislation or auxiliary legislation. Delegated legislation is enactment made by an individual or body other than Parliament. Parliament can allow someone else or body to make legislation. An Act of Parliament makes the system of a specific law and tends just to contain a layout of the motivation behind the Act. [2]
Importance/ Advantages of Delegated legislation
There are a few points of interest of Delegated enactment which makes it significant for present day organization. Some of them are as follows-
Firstly, it Spares Time for the Parliament. There are a few reasons why delegated legislation is significant. Right off the bat, it abstains from over-burdening the constrained Parliamentary plan as appointed legislation can be altered as well as made without going an Act through Parliament, which can be tedious.
Secondly, it empowers flexibility. Changes can accordingly be made to the law without the need to have another Act of Parliament and it further stays away from Parliament investing a tons of their energy in specialized issues.
Thirdly, administrative legislation provides for expert legislation. The guidelines are being drafted by the specialists acquainted with genuine conditions in suitable divisions. [3]
There is rundown of advantages of delegated legislation such as it can manage a crisis circumstance as it emerges without trusting that an Act will be gone through Parliament to determine the specific circumstance, it is done in consultation with affected interest, it set up new standards of laying rules, etc.
Criticisms/ Disadvantages of Delegated LegislationEvery action has an equal and opposite reaction. So, is true with delegated legislation. It isn't without its reactions.
Firstly, it is considered as undemocratic procedure because laws are being made or amended by officers who are not elected by people. This action is against the spirit of democracy.
Secondly, delegated legislation is dependent upon less Parliamentary investigation than another essential enactment. Parliament therefore has a lack of control over delegated legislation, and this can prompt irregularities in law.[4]
It has also been criticized because of the obvious absence of debate, issue of sub-delegation, lack of publication, unnecessary interference, etc.
Position of Delegated Legislation in Different Countries
a) Position in England
Parliament in England is preeminent and supreme and, in this manner, unrestricted by any established impediments, parliament has had the option to give wide administrative powers on official. However, sway of parliament does not imply that there are no principles to which practice of delegation must conform. The Committee on Ministers' Powers in its third proposal has recommended that the exact furthest reaches of law making power which parliaments means to give on a pastor ought to consistently be explicitly characterized in clear language by the rule.
This laying of limitation has prominent significance to England than to some other nation because in light of the fact that without any sacred impediment, it is based on those parliamentary cutoff points alone that the judicial review can be exercised.[5]
b) Position in USA
In USA, the rules regarding delegation of legislative powers are essentially founded on the doctrine of ‘Separation of Power’. It has been drawn from the concept of “delegates non potest delegare”, which means ‘no delegated powers can be further delegated’ [6] . In the US, the doctrine of Separation of Power has been raised to a sacred status. The US Supreme Court [7] is of the view that the Doctrine of Separation of Power must be viewed as a fundamental guideline hidden the Constitution, and that the powers vested to one organ must exercise it without infringing upon the powers of another. [8]
c) Position in India
The position of delegated legislation has been changing from time to time. Some of the major cases in this regard can be better understood through the following cases in different situations:
1) When Privy Council was the highest Court of appeal
The question of constitutionality came before the Privy Council in the famous case of R v. Burah [9]. An Act was passed in 1869 by the Indian council to expel Garo hills from the Civil and Criminal jurisdiction of Bengal, vesting the intensity of common and criminal jurisdiction in an officer selected by the Lieutenant Governor of Bengal. Section 9 broadened these powers.
The Calcutta High Court proclaimed Section 9 as unconstitutional delegation of legislative power by the Indian law making body on the ground that the Indian governing body itself is an agent (delegate) of British Parliament, therefore a delegate cannot further delegate. The Privy Council on the appeal reversed the decision of Calcutta High court and upheld the constitutionality of Section 9 on the ground that it is simply a conditional legislation.[10]
2) When the Federal Court turned into the most elevated court of appeal
The question of constitutionality of delegation of legislative powers came before the Federal Court in Jatindra Nath v. Province of Bihar [11]. In this case the legitimacy of Section 1(3) of the Bihar Maintenance of Public Order Act, 1948 was tested. The Federal Court held that the power of expansion with adjustment is illegal appointment of authoritative force since it is an essential legislative act.
Thus, for the first time it was held that powers cannot be delegated.
3) When the Supreme Court turned into the most noteworthy court of appeal.
The decision in Jatindra Nath created doubts about limits of delegation of legislative powers. Therefore, in order to clarify the position of law for future guidance, the President of India sought opinion of court under Article 143 of constitution of India for checking the constitutionality of three Acts covering the distinctive timeframes:
1) Section 7 of the Delhi Laws Act, 1912
2) Section 2 of the Ajmer-Merwara (Extension of Laws) Act,1947
3) Section 2 of the Part “C” State (Laws) Act, 1950
Seven judges delivered seven distinctive judgments.
On the basis of reasoning, the Supreme Court came to the conclusion that Part (1) & (2) are valid and Part (3) is valid except delegation of power relating to legislative policy. [12]
After this decision main controversy is now that what is the essential legislative function which cannot be delegated and what is non essential legislative function which can be delegated.
Position of Delegated Legislation in Indian constitution
The Constitution of India offers powers to the Legislature to designate its capacities to different specialists, to outline the arrangements to complete the laws made by it. In the case of D. S. Gerewal v. State of Punjab, [13] the Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.
The expression "Parliament may by law give" in Article 312 [14] ought not to be deciphered to imply that there is no scope for delegation in law made under Article 312.
Conclusion
In the end we can conclude that delegated legislation is part and parcel of legislation. It is so because work of legislation is increasing day by day and if powers and work is not delegated it will not be possible for legislature to work on new laws and Acts. It will stop the working mechanism of government. It can be considered as necessary evil in administrative law. However, it does not mean that delegated authority will be allowed to abuse their powers, there will always be need to control it. It can be challenged on the ground of being ultra vires, parent Act itself being unconstitutional, arbitrary and unreasonable.
References
[1] I.P. Massey, Administrative Law, 2019 edn.
[2] ibid
[3] https://www.yourarticlelibrary.com/law/what-are-the-advantages-of-delegated legislation/24799
[4] https://connectusfund.org/14-advantages-and-disadvantages-of-delegated-legislation
[5] I.P. Massey, Administrative Law, 2019 edn. and https://www.lawteacher.net/free-law-essays/administrative-law/delegated-legislation-in-english-legal-system-administrative-law-essay.php
[6] https://www.lawnn.com/delegatus-potest-delegare-definition-explanation/
[7] Field v. Clark, 36 L Ed 294 : 143 US 649, 692 (1891)
[8] http://youngarenalitigators.blogspot.com/2017/08/delegated-legislation-in-usa.html
[9] ILR (1879)
[10] I.P. Massey, Administrative Law, 2019 edn.
[11] AIR 1949 FC 175
[12] I.P. Massey, Administrative Law, 2019 edn.
[13] (1970) 72 PLR 657
[14] Article 312 of Constitution of India
The position of delegated legislation has been changing from time to time. Some of the major cases in this regard can be better understood through the following cases in different situations:
1) When Privy Council was the highest Court of appeal
The question of constitutionality came before the Privy Council in the famous case of R v. Burah [9]. An Act was passed in 1869 by the Indian council to expel Garo hills from the Civil and Criminal jurisdiction of Bengal, vesting the intensity of common and criminal jurisdiction in an officer selected by the Lieutenant Governor of Bengal. Section 9 broadened these powers.
The Calcutta High Court proclaimed Section 9 as unconstitutional delegation of legislative power by the Indian law making body on the ground that the Indian governing body itself is an agent (delegate) of British Parliament, therefore a delegate cannot further delegate. The Privy Council on the appeal reversed the decision of Calcutta High court and upheld the constitutionality of Section 9 on the ground that it is simply a conditional legislation.[10]
2) When the Federal Court turned into the most elevated court of appeal
The question of constitutionality of delegation of legislative powers came before the Federal Court in Jatindra Nath v. Province of Bihar [11]. In this case the legitimacy of Section 1(3) of the Bihar Maintenance of Public Order Act, 1948 was tested. The Federal Court held that the power of expansion with adjustment is illegal appointment of authoritative force since it is an essential legislative act.
Thus, for the first time it was held that powers cannot be delegated.
3) When the Supreme Court turned into the most noteworthy court of appeal.
The decision in Jatindra Nath created doubts about limits of delegation of legislative powers. Therefore, in order to clarify the position of law for future guidance, the President of India sought opinion of court under Article 143 of constitution of India for checking the constitutionality of three Acts covering the distinctive timeframes:
1) Section 7 of the Delhi Laws Act, 1912
2) Section 2 of the Ajmer-Merwara (Extension of Laws) Act,1947
3) Section 2 of the Part “C” State (Laws) Act, 1950
Seven judges delivered seven distinctive judgments.
On the basis of reasoning, the Supreme Court came to the conclusion that Part (1) & (2) are valid and Part (3) is valid except delegation of power relating to legislative policy. [12]
After this decision main controversy is now that what is the essential legislative function which cannot be delegated and what is non essential legislative function which can be delegated.
Position of Delegated Legislation in Indian constitution
The Constitution of India offers powers to the Legislature to designate its capacities to different specialists, to outline the arrangements to complete the laws made by it. In the case of D. S. Gerewal v. State of Punjab, [13] the Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.
The expression "Parliament may by law give" in Article 312 [14] ought not to be deciphered to imply that there is no scope for delegation in law made under Article 312.
Conclusion
In the end we can conclude that delegated legislation is part and parcel of legislation. It is so because work of legislation is increasing day by day and if powers and work is not delegated it will not be possible for legislature to work on new laws and Acts. It will stop the working mechanism of government. It can be considered as necessary evil in administrative law. However, it does not mean that delegated authority will be allowed to abuse their powers, there will always be need to control it. It can be challenged on the ground of being ultra vires, parent Act itself being unconstitutional, arbitrary and unreasonable.
References
[1] I.P. Massey, Administrative Law, 2019 edn.
[2] ibid
[3] https://www.yourarticlelibrary.com/law/what-are-the-advantages-of-delegated legislation/24799
[4] https://connectusfund.org/14-advantages-and-disadvantages-of-delegated-legislation
[5] I.P. Massey, Administrative Law, 2019 edn. and https://www.lawteacher.net/free-law-essays/administrative-law/delegated-legislation-in-english-legal-system-administrative-law-essay.php
[6] https://www.lawnn.com/delegatus-potest-delegare-definition-explanation/
[7] Field v. Clark, 36 L Ed 294 : 143 US 649, 692 (1891)
[8] http://youngarenalitigators.blogspot.com/2017/08/delegated-legislation-in-usa.html
[9] ILR (1879)
[10] I.P. Massey, Administrative Law, 2019 edn.
[11] AIR 1949 FC 175
[12] I.P. Massey, Administrative Law, 2019 edn.
[13] (1970) 72 PLR 657
[14] Article 312 of Constitution of India
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