Delegated legislation refers to the process of law-making by an executive or administrative authority under the powers conferred upon it by the legislature.
This delegation of powers is noted in statutes, which are commonly referred to as delegated legislation.
A 1973 Supreme Court ruling explains delegated legislation as:
“Empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State”
Delegated legislation in India is carried out through various mechanisms, such as rules, regulations, orders, notifications, and bylaws. These mechanisms allow the executive branch of the government to make detailed provisions for the implementation of laws passed by the legislature, without the need for the legislature to pass separate legislation on each issue.
History of Delegated Legislation in India
The historical backdrop of the delegation of power can be followed from the Charter Act of 1833 when the East India Company was recapturing political impact in India.
The Act of 1833 vested the administrative powers only in Governor-General – in Council, which was an official body. In 1935 the Government of India Act, 1935 was passed which contained a serious plan of delegation.
The report of the committee of ministers’ powers was submitted and affirmed which completely settled the case for assignment of forces and appointment of enactment was viewed as inescapable in India.
Constitutionality of Delegated Legislations
- Although the concept of delegated legislation was not mentioned specifically in the Indian Constitution it can be understood by interpreting Article 312 of the given Constitution.
- There are many cases through which delegated legislation under the constitution of India can be understood.
- Some of such cases are as follows
- DS Grewal vs State of Punjab: The Court held that delegated legislation must be made for a specific purpose and must not be arbitrary or discriminatory.
- Indian Express Newspapers (Bombay) Private Ltd. v. Union of India : This case dealt with the validity of the Customs Act, 1962, which gave the government the power to make rules for the assessment and collection of customs duties. The Supreme Court held that the power to make rules was not absolute and was subject to the principles of natural justice, reasonableness, and non-arbitrariness.
Reasons for the Growth of Delegated Legislation
- Complexity of modern governance: With the growth of modern governance, the complexity of the laws and regulations have increased significantly. It is not possible for the legislature to anticipate every situation and provide detailed provisions for all possible contingencies. Delegated legislation provides the necessary flexibility to deal with changing circumstances and to implement the legislative intent.
- Need for expertise: In many areas, such as taxation, environment, and healthcare, the subject matter is highly technical and requires specialized knowledge and expertise. Delegated legislation allows the government to consult with experts and to make rules and regulations that are based on sound technical and scientific principles.
- Expediency: Delegated legislation allows the government to act quickly and efficiently to respond to emergencies and changing circumstances, or to implement new policies. The legislative process is often slow and cumbersome, and delegated legislation provides a quicker and more efficient way to make necessary changes.
- Administrative efficiency: Delegated legislation allows the government to delegate routine and administrative functions to lower-level officials, freeing up the time of higher-level officials to focus on more important policy matters.
- Accountability: Delegated legislation is subject to parliamentary scrutiny and oversight. The Parliament has the power to annul any delegated legislation that it considers to be inconsistent with the provisions of the Parent Act or the Constitution.
Criticism of Delegated Legislation
- Lack of democratic accountability: Since delegated legislation is created by government agencies rather than elected representatives, it can be difficult for citizens to hold those agencies accountable. This can lead to a lack of transparency and the potential for abuse of power.
- Potential for misuse: Delegated legislation can be misused by government agencies to further their own interests or those of special interest groups. This can result in laws that are not in the best interests of the general public.
- Limited public input: Delegated legislation often allows for limited public input and debate, which can result in regulations that do not reflect the needs or desires of the people they affect.
- Lack of consistency: Delegated legislation can result in a lack of consistency in laws and regulations across different areas or industries. This can create confusion and uncertainty for businesses and individuals.
