Delegated Legislation

These are placed to ensure that delegated legislation is not misused.

• Constitutional Limits
  • Delegated legislation is neither permitted nor expressly prohibited in the Constitution.
  • Doctrine of Excessive Delegation given in In Re Delhi Laws Case (1951) states that the Parliament cannot abdicate its authority completely and repose all of it in a subordinate body. It should never give up complete control and always have the power over the subordinate body creating delegated legislation.
  • Doctrine of Essential Legislative Function: given by Justice Mukherjee states that Parliament must not delegate those functions which are essential to the legislature. And the legislature should always set out standards or policy while delegating power under an Act. This is called the ‘Policy & Guidelines Test’.
• Parliamentary Control
  • Laying: Parliament requires that delegated legislation like rules be laid before both houses of Parliament for approval from the People’s representatives.
  • Post Natal Publicity: A law cannot be enforced unless Published in the Gazette.
  • Antenatal Publicity: There is a process of consultation with the people by publishing the draft of the Rules, seeking feedback of stakeholders and then incorporating this in rulemaking.
  • Committee on Subordinate Legislation: of the Parliament was formed in 1953 and checks whether rules made are violating the law.
• Judicial Control: The judiciary can declare a delegated legislation ultra vires i.e. beyond the powers of the authority for following reasons:-
  • Enabling Act is ultra vires the Constitution: i.e. the Act which gives powers to delegate itself is beyond the Constitution.
  • Delegated Legislation is ultra vires: i.e. the authority creates a law on when it was not authorised to do so.
  • Procedural Ultra Vires: The delegated legislation is passed without complying with all the procedural requirements like antenatal consultation and laying before the Parliament.

• Paucity of time: Legislatures have a limited time to make laws on various important subjects. So it cannot cover every aspect of a particular issue. Hence, it only formulates the broad outlines to deal with the issue in the act, and the rest is left on the executive to handle through delegated legislation.
• Increasing volume of work: Legislatures are now expected to deal with varied subjects and issues, which are increasing at a rapid pace. In addition to this, the time allocated for the sitting of the legislature is decreasing due to constant disruptions.
• Unforeseen Contingencies: It is important for a nation to act swiftly in an emergency such as a pandemics, war, or economic crisis. So the executive needs to respond to the contingency without any inordinate delays.
• Increasing complexities due to the technical character of the subject matter: the issues are becoming more and more technical, which requires technical and specialist knowledge, and the legislature does not have the capabilities that are required to tackle the issues.
• Brings flexibility and increases efficiency: Delegated legislation makes the system more flexible in its approach to tackling any issue. Also, it brings efficiency and effective discharge of duties as it empowers the government to make regulations without having to wait for the legislature to deliberate and pass laws on the issue.
• Welfare State: requires complex socio-economic legislation which can not be uniformly created from the Centre for all parts of the country. Hence delegation has become indispensable for effective and adaptable law making to cater to varying needs of society.

• Inadequate supervision by the Parliament: The Standing Committee on Subordinate Legislation in both houses is responsible for scrutinising the rules, regulations, sub-rules, etc. made by the executive. But the experts have opined that the committee is only able to analyse a meagre amount of subordinate legislation out of thousands of such legislations.
• Against the spirit of separation of power: the Constitution has envisioned a system in which there is a separation of powers between the three organs of government (Executive, Legislature & Judiciary). But increasing delegation of power by the legislatures has diluted this principle. Also, the laws are supposed to be made by elected representatives rather than unelected (appointed) officials, who are responsible in practice for making subordinate legislation.
• Often escapes the public eye: When a bill is under deliberation by the legislature, it is scrutinised by the general public and becomes a part of discourse in the democracy. But the subordinate legislation may not grab the same attention of the public and hence escape public scrutiny.
• Excessive delegation of power and subsequent misuse: It is observed that the legislature is parting with too much power, and only the bare minimum contours are defined in the Act. This may lead to extensive rules and regulations made by the executive and leave room for misuse of power.

• Parliament can delegate its power to the executive, but within the recognised limits.
• Delegated legislation is supposed to be supplementary to the parent act and must not supplant the act itself.
• Delegated legislation is a ‘necessary evil’, an unfortunate but inevitable infringement of the doctrine of separation of power.
• Excessive delegation of power may be held unconstitutional on account of its vagueness.
• It is the duty of the Parliament, consisting of the elected representatives, to hold the executive responsible in cases where it does not act responsibly while making delegated legislation.

Delegated legislation is rapidly becoming the most important tool to deal with the challenges that governments in modern democracies are facing. No government can function without some provision for delegation of power. But the core principles of delegation of power must be kept in mind while exercising this power so that they are not violated. The Supreme Court has said that delegated legislation is a necessary evil and can only be kept in check when there is effective supervision by the elected representatives of Parliament. It is the duty of the Parliament to hold the executive accountable for its actions so that the doctrine of separation of powers is not violated.