Introduction: Delegated Legislation
Generally, the Legislature enacts a law which includes general principles and policies relating to a particular subject matter and confers the rule-making power on the government or any administrative agency. When a part of legislation is formally executed by the executive machinery, it is called delegated legislation.
For instance, a statute contains a provision which empowers the Central Government to make certain rules regarding the subject matter of the Statute and in pursuance to such provision the Central Government formulates such rules. It is permissible to delegate legislative power subject to the condition that the legislative policy has been adequately laid down and the delegate is authorized to implement the guidelines laid down by the legislature. Nowadays, there is hardly any statute enacted by the Legislature which does not delegate any power of legislation to the Executive.
Hence, it is very difficult to give any precise definition of the expression ‘delegated legislation.’ It is equally difficult to state with certainty the scope of such delegated legislation. Mukherjea, J. rightly says: ‘Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists…’
According to Salmond, legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or supreme power, the latter flow from any authority other than the sovereign power, and is, therefore, dependent for its existence and continuance on superior or supreme authority.
Delegated legislation thus is a legislation made by a body or person other than the Sovereign in Parliament by virtue of powers conferred by such sovereign under the statute.
A simple meaning of the expression ‘delegated legislation’ may be given as: ‘When the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.’
History of Delegated Legislation
No doubt, it is the twentieth century which has witnessed rapid growth of delegated legislation in almost all legal systems of the world. But that does not mean that it is a new phenomenon or that there was no delegation of legislative power by Legislature to Executive in the past. Ever since statute came to be enacted by Parliament, there was delegation of legislative function. The statute of 1337 contained a clause which made it felony to export wool, unless it was ordained by the King and his Council. In fifteenth and sixteenth centuries, there was frequent use of Henry VIII Clause. The Statute of Sewers of 1531 empowered Commissioners to make, re-make, repeal and amend laws, to pass decrees and to levy cess. Thus, the Commissioners used to exercise legislative, administrative and judicial powers at a time. Mutiny Act, 1717 conferred on the Crown power to legislate for the Army without the aid of Parliament. In nineteenth century, delegated legislation became more common and considerably increased due to social and economic reforms. In the twentieth century, output of delegated legislation by executive is several times more than the output of enactments by a competent legislature.
Reasons for Growth of Delegated Legislation
Many factors are responsible for the rapid growth of delegated legislation in every modern democratic State. The traditional theory of ‘laissez faire’ has been given up by every State and the old ‘police State’ has now become a ‘welfare State.’ Because of this radical change in the philosophy as to the role to be played by the State, its functions have increased. Consequently, delegated legislation has become essential and inevitable.
Pressure upon Parliamentary Time
As a result of the expanding horizons of State activity, the bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy and empowers the executive to fill in the details by issuing necessary rules, regulations, bye-laws, etc. In the words of Sir Cecil Carr, delegated legislation is “a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business.”
Sometimes, the subject-matter on which legislation is required is so technical in nature that the legislator, being himself a common man, cannot be expected to appreciate and legislate on the same, and the assistance of experts may be required. Members of Parliament may be the best politicians but they are not experts to deal with highly technical matters which are required to handle by experts. Here the legislative power may be conferred on expert to deal with the technical problems, e.g. gas, atomic energy, drugs, electricity, etc.
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some provision is required to be made for these unforeseen situations demanding exigent action. A legislative amendment is a slow and cumbersome process, but by the device of delegated legislation, the executive can meet the situation expeditiously, e.g. bank-rate, police regulation export and import, foreign exchange, etc.
For that purpose, in many statutes, a ‘removal of difficulty’ clause is found empowering the administration overcome difficulties by exercising delegated power.
In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient remedy. Therefore, in times of war and other national emergencies, such as aggression, break down of law and order, strike, 'bandh', etc. the executive is vested with special and extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two World Wars. Similarly, in situation of epidemics, floods, inflation, economic depression, etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.
Complexity of Modern Administration
The complexity of modem administration and the expansion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. By resorting to traditional legislative process, the entire object may be frustrated by vested interests and the goal of control and regulation over private trade and business may not be achieved at all.
The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern welfare State.
Legislative Function: A Necessity
Any state can not be run without rules and regulations, if run would lead to anarchy recently seen in countries like Syria, Egypt, Libya etc. This is an area where one of the most important organ of the state i.e. Legislature comes into play. Legislature only has the power to enact any kind of law for the peaceful existence of state. But as we have seen the limitations of legislature it can delegate its power to authorities sub ordinate to it but only if the delegation can stand three tests,
(1) It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation,
(2) Such power of delegation is not negatived by the instrument by which the legislative body is created or established, and
(3) It does not create another legislative body having the same powers and to discharge the same functions which it has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.
The power of delegation is implicit and included in the power of legislation. This being the touch-stone for not rendering the respective the Acts ultra-vires. The same authority to which the powers are delegated is also subjected to the above-stated tests.
As observed by Justice Fazl Ali, The true distinction is this: The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.
Another limitation is that a delegated legislation should not attempt to make another parallel legislation through that delegated authority. Justice Ali too observes certain restrictions on delegated legislations, although agreeing with the necessity for such kind of delegation. However, it may be noted that absolute power, as told to me once by my teacher, is the greatest rush of fluid a person can incur. Thus to prevent these restrictions are enumerated hereunder, which are stated in His Lordships own words and tampering them would take away the essence of the same:-
(1) The legislature must normally discharge its primary legislative function itself and not through others.
(2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.
(4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed enables the American Courts to check undue and excessive delegation but the Courts of this country are not, committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self-effacement.
Justice Bose at the same time suggests another test which requires that the nature of the powers conferred by the superior legislature upon other legislatures, be scrutinized and examined. However, ultimately it is agreed upon the fact that today delegation of legislative function and other functions is a current necessity and cannot be done away with. The Parliament does not have enough time to monitor the needs of the entire country. Therefore, it must delegate its functions to other legislatures, although keeping a regulatory control over them.
Control over Delegated Legislation
Control is a term which can be related to the Checks & Balances for the purpose of Legislation. At present, in almost all countries, the technique of delegated legislation is resorted to and some legislative powers are delegated by the legislature to the executive. It must be conceded that in the present day legislative powers can validly be delegated to the executive within permissible limits. At the same time, there is inherent danger of abuse of the said power by executive authorities. The basic problem, therefore, is that of controlling the delegate in exercising his legislative powers. It has been rightly said that one has to find out a middle course between two conflicting principles; one permitting very wide powers of delegation for practical reasons while the other that no new legislative bodies should be set up by transferring essential legislative functions to administrative authorities.
Delegated legislation has become inevitable but the question of control has become crucial.
The control must be introduced at two stages:
• First, at the source, i.e. the safeguards must be provided when the legislature confers the legislative power on the executive.
• Second, some safeguards must be provided in case of misuse or abuse of power by the executive.
Controls over the delegated legislation may be divided into three categories:
1. Judicial control;
2. Legislative control, and
3. Other controls.
Delegated legislation does not fall beyond the scope of judicial review and in almost all democratic countries it is accepted that courts can decide the validity or otherwise of delegated legislation mainly applying two tests:
1. Substantive ultra vires; and
2. Procedural ultra vires.
When any person exercising statutory authority, acts beyond the powers conferred upon him, such act become ultra-virus and accordingly, void. In other words, it means, the subordinate legislation goes beyond the scope of the authority conferred on it by parent statute/Act. A piece of subordinate legislation does not have the same degree of immunity as the Statues itself has and it must yield to plenary legislation.
When the Delegated Legislation fails to comply with procedural requirements prescribed by the parent act, it is known as procedural ultra-virus. If a statute lies down any particular procedure before the Government can exercise its powers and if it (the Government) fails to follow it, its act fall into the arena of procedural ultra- virus. It may also further be noted that even if a rule or regulation or procedure is mandatory and if there is substantial compliance than also the action or procedure or rule or regulation is not held to be ultra-virus.
So, the term ‘Ultra vires’ means beyond power or authority or lack of power. An act may be said to be ‘ultra vires’ when it has been done by a person or a body of persons which is beyond his, its or their power, authority or jurisdiction. ‘Ultra vires’ relates to capacity, authority or power of a person to do an act. It is not necessary that an act to be ultra vires must be illegal. The act may or may not be illegal. The essence of the doctrine of ultra vires is that an act has been done in excess of power possessed by a person as discussed above.
A delegated legislation may be held invalid on the ground of substantive ultra vires in the following circumstances:
1. Where parent Act is unconstitutional;
2. Where parent Act delegates essential legislative functions;
3. Where delegated legislation is inconsistent with parent Act;
4. Where delegated legislation is inconsistent with general law;
5. Where delegated legislation is unconstitutional;
7. Mala fide or Bad faith;
9. Exclusion of judicial review;
10. Retrospective effect.
So, one can conclude about the judicial control that is the one of the best ways to put checks and balances over any kind of delegation.
3.2 Legislative Control
Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of what is called subordinate legislation. Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliament control over delegated legislation should be living continuity as a constitutional necessity. The fact is that due to the broad delegation of legislative powers and the generalized standard control also being broad, the judicial control has shrunk, raising the desirability and the necessity of parliamentary control.
In India the parliamentary control of delegated legislation is implicit as a normal constitutional function because the executive is responsible to the parliament. The underlying object of parliamentary control is to keep watch over the rule-making authorities and also to provide an opportunity to criticize them if there is abuse of power on their part. This mechanism is described as ‘legislative veto.’ Since the risk of abuse of power by the executive is inherent in the process of delegated legislation, it is necessary for the legislature to keep ‘close watch’ on the delegation, which is done in the following mechanisms mentioned below:
In Indian Parliament we have (i) the Lok Sabha Committee and (ii) the Rajya Sabha Committee on Subordinate Legislation. The Committees set up by the Legislature scrutinize the reports and make the recommendations and suggestions to the Legislature. The people well conversant with the subject member are appointed on such Committee and hence their recommendations and suggestions are vital and important.
Laying on the Table
While the Legislature does delegate the non- essential legislative powers upon its Executives nevertheless, in order to have checks and balance on its Executives, the Legislature requires the subordinate legislation to be placed before its approval. The Notaries Act, 1952 in Section 15(3) lays down that every rule shell be laid down, as soon as may be after it is made, before each House of Parliament, while it is in session. Similarly Section 31 of the Consumer Protection Act 1986 also makes the similar provision.
One way of avoiding clash between the Departments and adversely affected persons, consultation is most ideal. By this technique, the affected persons are given an opportunity to give their “Say” and make suggestions, recommendations or objections before the Executives making Law fro them. It is, in present days, unthinkable that rules about doctors can be made without consulting medical associations or rules. The example which recently every one of us saw was of call for suggestions and consultation by common people in case of Lokpal Bill, 2011. The said bill was delayed due to consultation process of Parliamentary Committee formed under the guidance of Mr. Abhishek Manu Singhvi, MP.
Ignorance of Law is no excuse. Therefore, it is essential that law should be published. The publication no doubt cannot be avoided but possibility is not ruled out the publication may turn out to be defective in which case a vital question may arise as to the validity of the subject matter under consideration. The courts have taken shelter of the mandatory- directory and substantial compliance. As such, if the publication is mandatory or mandatory requirements appurtenant to publication are not fulfilled then the rue will be invalid, notwithstanding the fact that there was a publication. But if the directory requirements of publication are not fulfilled then the rule will be invalid, notwithstanding the fact there was a publication.
It can be concluded that, plenary power of law making are entrusted to elected representatives, but in reality, the political government, instructed by the bureaucracy, gets Bills passed through either by the aid of whip or by other methods. Thus law making has remained, more or less, exclusive prerogative of a small cross-section of elites. It affects not only the quality of the law made but reinforces centralized system of power. There must, therefore, be social auditing by public at large. Constitutional legitimating of unlimited power of delegation to the executive by the legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order. Hence, Parliament control over delegated legislation should be living continuity as a constitutional necessity.
Pros & Cons of Delegated Legislation
This form of legislation though has evolved due to the conformities arising out in the traditional system of Legislation but since then there have been both pros and cons of the same. The under mentioned points would throw light on it.
Pros of Delegated Legislation
The parliament is not a forum which makes laws on technical and administrative details. Delegated authorities with skills, experiences, and current knowledge are more able to make laws addressing the technical details.
The matters of the government require constant review and updating, and the parliament is not an appropriate forum to do this as it is expensive, time consuming and cumbersome to operate.
De-centralized decision making
The local councils are more suited to consult with their constituents to devise the laws to meet local needs. Regulations made locally are more able to be respected and accepted by community. Parliament makes legislation to cover the broad principle whereas the local council makes regulation to address local details.
Relieve the work load of parliament
Since it is expensive, cumbersome and time consuming to operate parliamentary process, therefore, the delegated authorities who reside by experts are more appropriate to make law to meet the needs of the community. Parliaments are more concern on social issue and rule of law. Whereas the delegated authorities is more appropriate to make law to address the technical and administrative details
The matters of the government require constant review and updating, and the parliament is not an appropriate forum to do this as it is expensive, time consuming and cumbersome to operate.
Cons of Delegated Legislation
Absence of Debate
The absence of democracy is that nothing is trusted upon the citizen without deliberation and debate in the Parliament. It gives transparency to legislation legislated by the Legislature. It ensures that there is no misuse or abuse of powers. It is undoubtedly convenient but it is undesireable that matters of even minor details are left to subordinates when minute details are of vital concern and adversely affect the citizens.
Undemocratic making of law
Since the delegated authorities are not elected by the people, therefore they are not accountable to the regulation made by them. Hence, it abrogates the democratic responsibility of a government.
Absence of Influence of Public Opinion
Since bureaucrats draft the rules and regulations, they hardly give any regard to ‘public opinion.’ Whereas, in democratic system, public opinion plays one of the most important roles in formulation of any policy, rule etc.
Accessibility and a lack of community awareness
Since the regulations made always according the changes of circumstances, therefore it is hardly for everyone to adapt to the changes of regulations and people unwittingly, therefore, often break the law.
Absence of Publicity
No man can plead ignorance of law. Therefore, it is necessary that the enactment is given the widest possible publicity. However, the Circulars and Orders and such other forms of delegated legislation and do not receive the proper publicity.
To conclude, undoubtedly the delegation of legislation have had its own cons but the ultimate purpose of legislation is being served as shown by its various pros. As aforesaid, in Delegated Legislation, there is absence of public deliberation or debate. It can also be that public opinion is side-tracked. However, the Legislature require that the rules framed by the Executives should be made more enforceable only after they are placed before the Parliament and approved by Legislatures. So far as checks and control is concerned, it may be noted that Courts are always omnipresent to affect check and control on the Delegated Legislation. The Executives cannot rely upon the Circular or Order which is not circulated and the Court always protected citizens in such circumstances. Looking at all the aspects of such delegation it has been favorable as far as examples like Right to Information Act, 2005 is concerned.
So, the delegation of powers is a must with only one reasonable restriction. The delegation must not be such that it takes away the very title of a subordinate authority i.e. the subordinate authority should not do a particular act which the superior authority itself cannot do. In other words would support the restriction placed upon creation of a parallel legislature. Also if delegated acts are done within the scope and ambit of the authority the superior authority there will be no Conflict of Interest.
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MP Jain and SN Jain, Principles of Administrative Law(Lexis Nexis Butterworths Wadhwa, Nagpur, 6th edition, Reprint 2011)
M.P. Sharma, B.L. Sadana, HarpreetKaur, Public Administration (KITAB MAHAL, Allhabad, 48th edition, 2012).