PTER DELEGATED LEGISLATION

24)
The term 'delegated legislation'
refers to the minor
legislature
the the
on executive. The legislature is the laW-making power conferred bv
ever, because of the modern needs and law-making organ of a state. How-
necessities of the
cannot make the required number of laws because Government, the legislature
of the
legislation and fast changing environment. Therefore, theshortage of time, complexity of
law-making power to ensure the legislature has to delegate its
sible for legislature to functioning of administrative
apparatus, as it is not pos-
the
pass
quantity and quality of legislation required. Such
passed by the executive, on behalf of the legislature is called legislation,
Delegated Legislation.
Meaning and Definition: Delegated legislation is known
-

subordinate legislation, administrative law or by various names such as

quasi-legislation. It may be defined as a body ofrule-making, administrative legislation or
law which is made
means of rules,
regulations and orders framed and promulgated by the
administratively by
some executive
authority
in government or
pursuance of power conferred on it by an Act of
The Committee on Ministers
legislature.
in
powers England defined it "as the exercise of minor
legislative powers by subordinate authorities and bodies in pursuance of
ity given by the Parliament itself." statutory author
Salmond while defining delegated or subordinate legislation stated that
"Subordinate
legislation is that which proceeds from any authority other than the sovereign power and
is, therefore, dependent for its continued existence and validity on some
superior or su-
preme authority. They may be regarded as having their origin in the delegation of the power
of parliament to inferior authorities, which in the exercise of their
delegated functions re
main subject to the control of the Sovereign Legislature."
The terms, rules, regulations, orders, warrants, minutes, by-laws, instructions,
circulars, notice, memoranda, etc are used to designate the different sets of delegated
tegislation from the various government offices. In simple words, delegated legislation is
legislation by the authorities other than the legislature.
These authorities or administrative bodies act as delegates of the legislature
and
exercise only the delegated authority concening legislation. The situation today has reached
a point where delegated legislation out numbers the legislative enactments. It has
been
noted by Prof. Upendra Baxi in this connection that, "The Indian Parliament
enactedfrom
288
 DELEGATED LEGISLATION
ne
2.89
period 1973 to 1977 a total of 302 laws;
orders
As against this the total number of
statutory
and rules passed in the same period was
approximately 2544."
Delegated Legislation must not be confused with the executive legisilation. While Del
egated Legislation stands for thelaws made by an authority other than
the Legislature to
whom the
legislature delegates its legislative powers. Executive legislation stands for the
aws made by
President and the Governors respectively under Articles 123 and 213 of our
Constitution. These laws are in the form of ordinances which have the force of law. The
source of the
delegated legislation is always an Act of the legislature whereas the source
of the executive legislation is a constitutional
provision. Therefore, Executive Legislation is
considered supreme and not delegated.
TYPES OF DELEGATED LEGISLATION
According to Jain and Jain, "The term delegated legislation is used in two senses: (a)
the exercise by asubordinate agency of the legisiative power delegated to it by the
lature, or (b) the subsidiary rules themselves which are made by the subordinate agency
legis
in pursuance of the power as mentioned in (a)."
Sometimes, delegated legislation is also known as 'conditional' legislation. In such
cases, the legislature authorises the executive to make rules and regulations, subject to
the futfilment of certain conditions. Only with the fulfilment of conditions, can the executive,
Use this delegated authoity. Besides, 'contingent' delegated legislation can be 'supple-
mentary, i.e. filling the details in the laws passed by the legislature; nterpretative', i.e. the
rules which clarify the main legislation and 'exceptionar', i.e. where legislature delegates
powers beyond limits.
Delegated legislation can take many forms rules, regulations, bye-laws, orders
etc. Rules made by local authorities under statutory authority are called bye-laws.
Bye
laws must be made in consonance with the statute which empowered it to make bye-laws.
Arule occupies same importance as statute. However, the creating authority is different.
ules and regulations are the same except that for a statutory corporation like a university,
hesubordinate législation is termed as regulation. An order is specific and relates mostly
othe execution of some rule already made.
Sub-Delegation - when the executive authority which has been delegated legislative
Oty, further delegates authority, it is called sub-delegation. It can continue further at
levels. Eminent jurists are of the view that this is a wrong practice and needs to be
iscouraged.
REASONS FOR THE GROWTH OF DELEGATED LEGISLATION
M
hontesquieu's theory of separation of powers requires the legislature to make laws
executive to implement and enforce laws. But in modern complex societies where
cept of "laissez faire' state has given way toa 'welfare state', we witness the ever
wing ole of state in all spheres. Now the state is assuming more and more responsibili-
 290 INDIAN ADMINISTRATION (SEM-II)
ties in promoting the welfare of its citizens, Supervising their heath, education and m
ant reequlating trade, industry and commerce and providing a great loy-
variety of other ser
vices. All this has led to entrusting the executve witn
greater powers, includina thateras
delegated legislation. Thus delegated legislation nas tound to be f
lowing main reasons: inevitable due to the fal.
1. Pressure of Legislative Work : The modern
welfare state has
more an instrument of sOcialand economic become more And
change. This has led to tremendous
of qovernmental activity. But, the expansion
resources to deal with in detail the legislature
has neither
vast and
enough time nor sufficient staft
varied legislation required to meet the needs of
government. Within the short span of its life it has to pass a number of
to take up such intensive legislative work that it can legislations and has
detail. The pressure of work hardly enact the provisions of law
an act and
prevents the legislatures to provide all the required details inin
compels it to delegate its legislative
lature makes outline laws and confer powers in a limited sense. Thus, the
upon the executive the power to make rules
legis
regulations to fill in the
gaps in the law. In fact the rule and
executive to supplement the acts, making power is conferred on the
passed by the competent
legislatures.
2.
Technical Nature of Legislations
activity, but requires special skills, knowledge and
Legislation today is not routine
and simple
within the legislature. Some
expertise, which may not be available
legislations are technical in nature and the
being experts or technicians, cannot work out details of such laws. ThisLegislators
not
can be better
done by specialists in the administration who
possess requisite competence and also
sufficient experience. The legislatures at best could lay down the
policy or the principle
leaving the details to be filled up by the executive in an act.
3. In order to promote Flexibility: A legislative or statutory provisions
cannotbe
amended except by an amendment passed in accordance with the legislative procedure.
This is a very time consuming process. With the increasing complexity of social legisiation
the legislature finds it difficult to foresee all the eventualities that may arise out of a given
line of policy or statute. No legislative body can hope to prescribe all the detailed rules and
the
regulations needed by government to cope with future contingencies. Consequently,
legislature leaves to the administrative agencies the task of drafting such rules and regula
tions as are necessary to give the legislation effect in the light of new situations. This would
ensure more flexibility and elasticity because delegated legislation is less formal and cum-
for a mechanism of constan
bersome. The technique of delegated legislation provides
without the formalny
adoption to unknown future conditions and utilization of experience
legislatures enacting and amending legislations time and again.
uthor
4. To meet unforeseen Emergencies: Parliament has to provide adegua ods.
leegislation to take c a r e of emergencies like war, epidemics,
ity through delegated
earthquakes, drought, violent communal outbursts, etc.
 E L E G A T E D L E G I S L A T I O N
291
d Phillips observes, "The great increase in delegated legislation in modern times
ectivism and the development of the welfare state and partly to the need
i sd ueep a r
Dartly to ncies of various kinds,
of variou such as strikes, economic crisis and
ocope

with
emergencies
epidem
s . "
sad i egislation is, theretore, a necessity. In tact 'the law of land', besides the
commor law and the statute law, includes a great deal of what may be termed subordinate,
o rd e l e g a t e d l e g i s l a t i o n .
of Delegated Legislation
Advantages
has the following advantages
Delegated Legislation
Saves time: It saves the valuable time of the parliament and by freeing it from the
burden of details, enables it to concentrate on the general principles of legislations and
matters As a result, parliament is in a position to pass the kind
ssentials of high policy
of legislation réquired io meet the needsoof modern welfare states.
andquantity
2: Easy process: Delegated legislation can be easily done in consultation with the
interests or groups affected. While drafting the rules and regulations, the government may
and often does meet and consult the parties who are going to be affected. This leads to a
broad consensus or agreement which tends toward voluntary compliance.
3. Awayfrom party politics: It eliminates or at least minimises partisan political
conflicts in giving effect to law.
4. Flexibility: Delegated legislation brings flexibility to the system. It allows adminis-
trators ample latitude in applying laws in a great variety of frequently changing circum-
stances. Since details are left to be filled up by the executive, they may be easily changed
in response to fast changing needs, without necessitating a formal amendment of the act.
Tnis elasticity is particularly desirable in fields that are undergoing rapid changes as a
result of quick scientific and technological advances.
5. Legislation by experts: Delegated legislation provides for expert Legislation. The
rules are drafted by experts in the appropriate department who are familiar with the actual
conditions. The details can be much better worked out by them than by the ordinary mem-
bers of the legislature.
6. Suitable for prompt actions : Parliament is not
always in session.
cail tor prompt actions; its better to equip the administrative agencies with the necessary
Emergencies
discretion to
deal with them
by rule-making.
Apt 1or emergency situations: In order to deal with emergency situations Ike,
wa, cyclone, flood, famine etc: it is essential to give powers of regulation and rule-makIng
to the executive.
ermns experimentation: Deledated Leaislation permits experiments being made
eIOs Iike rural
development, urban nlannina. land reforms etc. as such policles ne
 LEGISLATION 291
DeLEGATEO
observes, "The great increase in delegated legislation in modern timos
Phillips
of the welfare state and
collectivism and
the
developmernt partly to the need
H o o d
sdue y to
He with
parthemergencies of various kinds, such as strikes, economic crisis and epidem-
o cope
aislation is, therefore, a necessity. In fact the law of land', besides the
Deleond the statute law, includes a great deal of what may be termed subordinate,
aommonlav
o rd e l e g a t e d l e g i s l a t i o n .
of Delegated Legislation
Advantages
has the following advantages
Delegated Legislation
the parliament and by freeing it from the
Cavestime: It saves the valuable time of
,
enables it to concentrate on the general principles of legislations and
burden
d e n ofof details,
matters. As a result, parliament is in a position to pass the kind
sentials of high policy meet the needs of modern welfare states.
of legislation required to
and quantity in consultation with the
2.Easy process: Delegated legislation
can be easily done
affected. While drafting the rules and regulations,
the government may
interests or groups affected. This leads to a
and consult' the parties who are going to be
and often does meet
which tends toward voluntary compliance.
broad consensus or agreement
I t eliminates or at least minimises partisan political
3. Away from party politics
conflicts in giving effect to law.
to the system. It allows adminis-
4. Flexibility: Delegated legislation brings flexibility
trators ample latitude in applying laws in a great variety of frequently changing circum
stances. Since details are left to be filled up by the executive, they may be easily changed
of the act.
in response to fast changing needs, without necessitating a formal amendment
This elasticity is particularly desirable in fields that are undergoing rapid changes as a
result of quick scientific and technological advances.
5. Legislation byexperts:Delegated legislation provides for expert Legislation. The
ules are drafted by experts in the appropriate department who are familiar with the actual
conditions. The details can be much better worked out by them than by the ordinary mem
bers of the legislature.
.Suitable for prompt actions: Parliament is not always in session. Emergencies
call tor prompt actions; its better to equip the administrative agencies With the necGa
discretion to deal with them
by rule-making.
emergency situations : In order to deal with emergency situations like,
r , Cyclone, flood, famine etc: it is essential to give powers of regulation and rule-making
to the executive.
8. Permits
h experimentation: Delegated Legislation permits experiments being made
u r a l development, urban planning, land reforms etc. as such policies need to
 Delegated legislation suffers from certain serious drawbacks. It is veheman
de-
grounds:
nounced on the following
1. May lead to despotism: Delegated iegislation is seen as a threat to free
socie
The wide range of discretions given to the administrators creates a bureaucratic r
and may turn a democracyinto despotism or arbitrary rule. This, according to Lord Haw
leads to a 'new despotism' of Civil servants who are not responsible to parliament or to art,
tho
people. He considered this
practice as
usurpation or legislative power by the
executive,
2. Threat to individual liberty: The excessive concentration of
in the bureaucracy may override a proper regard for the
rule-making power
rights of the individual. It therefore
may pose a threat to individual liberty. Bureaucratic rule
may not adequately consider the
general welfare of the people. It leads to increased governmental interference in
activity and liberty. individual
3. Executive
may get unlimited powers: Even
that delegated legislation is though there is no denying the fact
necessary, there still remains the danger that the
may delegate unlimited powers. The danger is real in legislature
India where the Union Parliament and
State Legislatures have passed certain 'Skeleton'
laws which confer blanket
the executive. powers upon
4. Focuses on
organised interest only: Rule-making by bureaucracy may over
look the common-man and his needs and
desires. The administrative
only the organised interest and the unorganised general agencies consult
Yet, the rules affect the general public and not just the
public is left
out of consideration.
particular interest.
5. Subject political pressure : Rule-makers may be subjected to
to
sure and turn the rules to political pres-
special or private instead of public purposes.
6. May bypass the judicial process
Delegation may be in such terms as to exclude
the control of the courts and deprive the citizens of the
can look into the validity of
protection the
by courts. The couts
such delegated legislation only which is
them; sometimes finality clause is used to exclude the judicial review challenged Even
before
of delegation.
where the courts have the power to protect the
citizen, the citizen may find it difficut to
avail himself of judicial remedy on account of
procedural difficulties, cost and delay n
volved.
7.Overstepping of limits : Inadequate scrutiny by Parliament of the rules and regu
lations makes delegated legislation grow into despotism. Even where
legislature is limited and moderate, insufficient Delegation Dy
in those imits being overstepped and
scrutiny by it of the rules made, may i
disregarded by the executive.
 considered as one of the
advan-
ATED LEGISLATION
chaos: The flexibility which
is amended too
and
c e r t a i n t ya n d
if the rules are
may
itself become a danger of
Unceod legislation, and chaos. The multiplicity
6.
Uncern
ofdelegated.
the result is uncertainty
the
this happens,
thDens,
have to follow and apply
of dele Where
p a t i e n c e and
endurance of those who
agUentiy.
ently. exhausts
xhausts
the
pendments
arrangements for
not make adequate
The government may suffers a loss
Inadequate p
Luate publicity:
ublic
and regulations.
The average person
tion of
the rules government may take shel
9. known to them. The
o i c i t ya n d p u b l i c a t i o r
are not
and regulations is
ublicity. ex
e xccu
usse
e..
g n o r a n c e of
law
law no
no
picuy the
rules
maxim t
law naxim
that ignorance
hat i
overlook what is
Pocause
officials may
Rule-making by expert
c o m m o n
ohindthe
e rbehind
acumen: will not swallow.
political
to s e e what the
people
10. Lacks not be able
feasible.
The official may D E L E G A T E D
LEGISLATION
itically CONTROL
OVER
system
politica
OR working of the
SAFEGUARDS thoroughly the that the
Committee,
after examining "There is a danger
Donoughmore that
conclusion
the c o m m i t t e e re-
The Britain,
reached
time the
legislation in master." But at the
same
of delegated t r a n s f o r m e d into
the
legitimate and constitutionally
both
servant may
be legislation is
of delegated safeguards."
"The system and under
marked that certain limits
within evils and dangers
desirable for
certain p u r p o s e s , to lesson the
are suggested
methods or
safeguards
The following boundaries
the
ofdelegated legislation: out clearly
for spelling
There is a need
should
parameters: that the legislature
1. Defining the should operate.
It is essential through
legislation completed in any way
Within which delegated which can be
not pass any skeleton
legislation or a
legislation
defining the parameters
for the operation
trust
for clearly identifiable and
There is a need to an
delegated legislation. should bedelegated
Legislative power officer of inferior
of delegated legislation. c o n f i d e n c e and
not to s o m e
which c o m m a n d s
general
Worthy authority be
the power.
status who is unfit to exercise should not ordinarily
legislative power
Delegation of the
or
'unusual'
2. Normal
purposes :
on Ministers'
powers described as
which the committee the provi
or to amend
nade for purposes, to impose taxes or to
prescribe penalties
donormal, i.e. the power and should not be delegated.
Sions of Acts are abnormal powers made by the execuuve
The rules and regulations
consultation
3. Publicity and rules and regulations mae
antecedent publicity. The
authorities should receive sufficient India and given G.S.n.
by the administrative authorities are
published in the Gazette of
numbers. This provi
or S.R.O. (Statutory Rules and Orders) the
General Statutory ules) and representation prO
forconsultation and hearing of affected interests and rights
finalisation of rules and regulations.
The procedure of rule-making should invariably provide for consultation with tne pu
lic and the special interest affected. In England and India apart from the special consu
 INDIAN uSTRATION
294
tion which the rule-making departments may hold with the appropriate organised interests
(SEM-1I)
it is the general practice to publish the drafts of rules to be made and invite public criticism
m
and suggestions on it. The purpose of this is to ensure some participation in the rule.
making of those àffected by the rulees.
4. Parliamentary control and scrutiny : Another effective sateguard is the control
of the Parliament itself. This is achieved through the laying of the delegated
alongwith the Billin the House. However, this exercise does not serve
legislation
much useful pur
pose as it is of routine notice and not very informative. The real control over
legislation be delegaterd
can
exercised when the rules made by the Government under delegated
authority are laid before both Houses of Parliament. These rules can be modified or
celled by the Houses of Parliament. can.
these are made and the
However, in India the rules come into force as soon as
laying procedure is followed only after this. It is seen that,
of laying before the House, these
are hardly
inspite
discussedas Parliament is
other important matters and
thus, in most cases this becomes a mere pre-Occupied with
In India, Parliament exercises its control formality.
ways
over subordinate legislation in the
following
(a) Parliament may examine the
in legislative bill power to make subordinate legislation when it
itself. appears
(b) Parliament may question or discuss
any subordinate legislation.
(c) The various rules and regulations framed
by the Parent Act to by the executive authorities are
to discuss the
be laid before Parliament for its scrutiny. This enables the required
merits and demerits and defects of the various rules and parliament
annulment or modification of a to recommend the
particularrule.
(d) Parliament exercises control over delegated
committee on subordinate legislation through its standing
legislation. This committee is the main instrument of
to prevent the tendency to despotism on the part of the executive. parliament
5. Judicial Review The
trol over judiciary should be vested with the
power to exercise co
delegated legislation. There is the safeguard of the
legislation by the courts. in this
judicial review of the delegated
connection the function of the courts is to see that
exercise of the delegated tne
the authority
rules made will be declared
is not broader than the
terms of the delegation. If n
ultra-vires and void.
When the contents of
it is known as delegated legislation go beyond the purview of
substantive Ultra-Vires. The delegated delegaton
the courts under the legislation can be declared vo
foliowing circumstances
(a) Where the Parent Act itself is
unconstitutional.
(6) Where delegated
legislation is in conflict with the constitution Act.
(c) Where it is or Parent
unreasonable and malafide.
(d) Where it involves
sub-delegation.
 o L E G I S L A T I O N
sGAIED LEGISLANO review.
kEGATE ded from judicial
from Judicial
excluded
where it is effect.
have
in the Parent Act
r e t r o s p e c t i v e
a contained
ithas requirements
rule making under
delegated
delegated
if the procedural
Where
) n o l e process
whole of rule
p r o c e s s of
sees w is
Stress iss
The court
rt also followed
during the m
maai
innt
taai
inne
edd and published.
and
Stress
and have been
been
effective and and
olied with
p e e nc o m p l i e d
if the records would promote
c o n s u l t a t i o n would
promote
effective
to s e e Teer that would make
make
consuitation
peen ation. They look courts feel
tnat
i n t e r e s t s a s this
interests
a s the affected
affected
too, governme
nent and
consultation
the
between lligible.
and intelligible. both
laid relationship rules clear legislation at
of the
ve
and
implications
important
safeguard ofdelegated publication is
is pro-
pro
publication
facts Publication
is a n publicity and
and
the
Britain,
a
annt
teec
ceed
deen
the draft
ntt
of such
Publication:
stages. In
of
6.
which requires
prior notice their
subsequent
the rules in
antecedent
and
Publication Act, 1893, invited.
Subsequently,
the
Rules criticism s t a t u t e on
ded for by the and
suggestions
and
appears
to be no general
antecedent
given InIndia there require
be themselves
rules to to be
published.
power
also have the rule-making
Gazette.
final form statutes
delegating
in the
official
We are
the rules to stay.
matter but publication
of the have come
subsequent legislations That policy is
as well
as
that delegated a policy.
not denying
the fact
Acts which only
lay down regulations
There is rules and
than by the by the all
rules today s o to say, on it at
more
governed by c o n c r e t e shape,
a
w a t c h f u l eye
and given a is to keep
explained The need
amplified, the Act. check. under
executive
the under
framed by delegated
legislation
as to keep
stages so
TYPE QUESTIONS
SHORT ANSWER (P.U. April, 2015)
legislation.
tor the growth
of delegated
reasons
1. Give two
advantages of
delegated legislation.
2. Give two legislation.
disadvantages of delegated legislation.
3. Give two misuse of delegated
against the 2017)
safeguards required 2014, May
4 Give two (P.U. April,
What do you mean by Delegated Legislation.
5.
QUESTIONSS
|LONG ANSWER TYPE and disadvantagos
legislation? What are its advantages
1. What is delegated Als0 give t
r e a s o n s for its growth.
is delegated legislation? Discuss the 2018)
2. What 2014, May
(P.U. April misuse.
nrkquards required against its (P.U. April, 2016)
a note on delegated legislations.