Delegated Legislation

UNIT 3
Concept
 The development of the legislative powers of the administrative authorities in
the form of the delegated legislation occupies very important place in the study
of the Administrative Law.
 One of the most significant developments of the present century is the growth in
the legislative powers of the executives and it has been one of the most debated
issues in the domain of legal theory because of its various implications
 It is the Legislature which grants legislative power to the administration, it is
primarily its responsibility to ensure the power exercise of delegated legislative
power, to supervise and control the actual exercise of this power, and ensure the
danger of its objectionable, abusive and unwarranted use by the administration.
 Definition
 Delegated Legislation means the powers given by the legislature to the executive or
administrative bodies to enact certain laws.
 When the function of the legislation is entrusted to organs other than the legislature by
the legislature itself, the legislation made by such organs is known as delegated
legislation
 The principle of delegated legislation is that the legislature must lay down the
guidelines, the principles of policy for the authority to whom power to make
subordinate legislation is entrusted
 According to M.P. Jain: The term ‘Legislative Delegation’ is used in two senses:
(I) Exercise by a subordinate agency of the legislative power delegated to it by the
legislature, or
(II) The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the power conferred on it by the legislature
Scope of Delegated Legislation
 The excessive delegation of power of legislative to the executive or
administrative bodies harms the people’s rights and weakens the
democratic norms and rule of law.
 If the legislature confers power subject to certain norms and
standard, then the exercise of the power can be tested in the light of
those norms, and any attempt by the delegate to ignore those norms
may be checked. So, delegated legislation must not:
1. Exceed the parent/enabling Act made by the legislature,
2. Conflict with the enabling Act, and
3. Alter the necessity, special features, make or policies of the Act.
Factors Leading to the Growth of
Delegated Legislation
1. Lack of Time of Legislative Body
2. Lack of Technicality on the Subject Matter
3. Need of Flexibility in Law
4. Solution of Emergency Situation
5. Discretion and Preventive Measures
6. Direct Participation of those who are governed
7. Complexity of Modern Administration
Limitations on Delegated Legislation

 Constitutional Supremacy
 Principle of Ultra Vires
 Judicial Review
 Constitutionality of Delegated Legislation

 Constitutionality of Delegated Legislation means the permissible limits of the

Constitution of any country within which the legislature, which as the sole repository of
law making power, can validly delegate rule making power to other administrative
agencies.
 In context of Nepal constitutionality test of the delegated legislation is the one of the
strong mechanism to control the delegated legislation
 Constitutionality test of the delegated legislation protect the essence of the Constitution
i.e Right to equality; non-discrimination; etc.
 Thus, any rule inconsistence with the Constitution will be matter of judicial review.
 Classification of Delegated Legislation

1. Title Based Classification: (i) Rule; (ii)Regulation; (iii)By-law; (iv)Order; (v)Direction;

(iv)Scheme.
2. Discretion Based Classification: (i) Contingent or Conditional Legislation; (ii)
Subordinate Legislation.
3. Purpose Based Classification: (i) Power to Remove difficulties; (ii) Taxing Acts; (iii)
Power to fill in Details; (iv) Powers to Prescribe Punishment.
4. Authority Based Classification: Authority of Legislature to delegate the power
5. Nature Based Classification: (i) Normal Delegation; (ii) Exceptional Delegation.
 Control over Delegated Legislation
1. Parliamentary Control
(i) Direct General Control
(ii) Direct Special Control
(iii) Indirect Control
2. Judicial Control
(iv) Constitutionality of the Parent Law
(v) Constitutionality of Delegated Legislation
(vi) Excessive of Parent Law
(vii) If the Delegated Legislation is Mala Fide
Cont…

3. Procedural Control
(i) Drafting
(ii) Antenatal or Pre-publicity
(iii) Consultation with Experts
(iv) Postnatal Publicity
4. Other Control Mechanisms