Delegated Legislation: Definition, History, Types, Significance - UPSC Notes

The "delegated legislation" concept has shaped modern democratic systems and plays a pretty important role in the development and function of administrative law. It's an indispensable feature of legislation in an increasingly complex system of governance and administration worldwide. Administrative law is known as subsidiary or subordinate legislation; law provisions are enacted by individuals or organizations that the legislature has empowered to establish particularized rules within a particular Act of Parliament. Delegated legislation's legitimacy comes from the enabling Act enacted by the legislature.

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What is Delegated Legislation in Administrative Law?

Delegated legislation is also referred to as secondary or subordinate legislation. It is a form of law that enables a person or group of people to make laws under an Act of Parliament. The persons or bodies could be the government ministers, local authorities, or corporations.

The most outstanding feature of delegated legislation is passing law-making powers from the higher authorities, usually the legislative, to the lower authorities. This saves legislative time, responds quickly to new developments, and allows for flexibility and expertise.

Delegated Legislation

Delegated legislation is made by an authority other than the legislature, most often the Executive or administrative organisations, in powers delegated by an Act of Parliament or primary legislation. The practice enables the development of major rules, regulations, or administrative provisions to operationalize and execute the general rules agreed upon by the legislature. It may also be referred to as subordinate or secondary legislation that allows the efficient, specialized, and flexible legislation within boundaries set by the enabling legislation. Parliamentary and judicial oversight keep legislation within legal bounds and prevent going beyond the authority as spelled out in the parent Act. Examples are health regulations, safety and local governance regulations.

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Legislation Meaning

Legislation refers to a collection of laws or a written document made and enacted officially by a government or legislative body, e.g., Congress or a parliament. It determines rules, guidelines, and regulations to be followed by people and organizations. Legislation aims to keep order, protect rights, and offer a standard for different social activities. It may touch upon numerous fields such as criminal law, civil rights, business and environmental protection.

Significant features of delegated legislation mentioned by the news

Delegated legislation, also referred to as subordinate legislation, is the law enacted by institutions other than the parliament but with the powers given to them by the enabling legislative act of parliament. The recent news makes it essential to pay attention to the presence of delegated legislation, especially regarding the COVID-19 pandemic and the decision of the Supreme Court regarding the extent to which this kind of legislation is allowed. 

• COVID-19 Pandemic: The pandemic employed vast volumes of delegated legislation in the form of regulations and statutory rules to impose such measures as lockdowns, social distancing, and mask wearing. 
• Decisions of the Supreme Court: Such cases concerning delegated legislation have been reviewed by the Supreme Court with the focus on delegated legislation not being able to go beyond the given powers of the enabling act, but also to replace them. 
• Diaries on Delegated Legislation: The Supreme Court has asserted that delegated legislation should be in line with the parent act, and it cannot cause the creation of substantive rights and submissions beyond those envisaged by the parent statute.
• Examples: Typical forms of delegated legislation are ordinances, by-laws, rules and regulations.
• Importance: Delegated legislation is vital in creating specific administrative regulations that give the much-needed details to make parliamentary acts effective. 

History of Delegated Legislation

It traces its origin back to the British legal system. It evolved as a device for handling the ever-increasing administrative complexities during the 19th and 20th centuries. With the institution of welfare states, the bulk and complexity of legislation demanded was too high to be dealt with by legislatures, and that is when such powers were granted to expert bodies or persons.

Need for Delegated Legislation in Administrative Law

Legislative powers are delegated due to the increasing complexity of administrative activities and social services, and the need for specialist knowledge in certain areas. Delegated legislation in modern administration ensures that the laws keep pace with the changes in society and technology.

Forms of Delegated Legislation

Forms of delegated legislation are:

• Statutory Instruments: This is the most common type, usually drafted by the government ministers with the help of an enabling Act.
• By-laws: Are made by local governments or government corporations and are geographically restricted or applicable to a set of activities.
• Orders in Council: The executive government or the monarch issues these orders only by a legislative mandate.
• Rules and Regulations: Specific instructions by the government departments to enforce laws.
• Ordinance: Primary law in the non-self-governing territories or local government regions.
• Examples of delegated legislation include: 
• Statutory instruments made by government ministers.
• Local authorities or other public corporations make bylaws specific to a particular location.
• Orders in Council are made by the executive or monarch, often covering material similar to statutory instruments.
• Rules that govern how things are done.
• Ordinances that form primary legislation in territories, or are made to apply to other local bodies. 

They are forms that make it possible to implement the laws in detail and are realistically related to the framework developed by the legislature.

Legislative Control of Delegated Legislation

Delegated legislation control using legislation is where the parliament can exercise legislative power, so the delegated law should be within the restrictions of the parent Act. The elements of parliamentary control are:

• Laying before Parliament: Delegated legislation must be presented for review.
• Simple, Negative, and Affirmative Resolution Procedures: Parliament may pass or reject delegated laws.
• Scrutiny Committees: Specialized committees examine whether such laws exceed delegated powers or conflict with the parent statute.

These checks protect democratic accountability and prevent abuse of delegated powers to the executive.

Subordinate Legislation Meaning

Delegated legislation is law made by an authority other than the legislature but with the legislature's consent under the authority of an Act of Parliament or primary legislation. It consists of rules, regulations, by-laws, and orders devised to enforce the principal legislation's provisions and provide its execution and enforcement. This enables careful and loose legislation at the expert or administrative level within the enabling Act's legal framework.

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Reasons for the Growth of Delegated Legislation

There are many reasons why, in today's world, there is rapid growth in delegated legislation, as listed below.

• Pressure on the time of Parliament: The increasingly expanding field of state activities and the short time of Parliament make them susceptible to surrendering their law-making power to the executive. The Parliament broadly enunciates the primary legislation and leaves details to be filled by the executive or its agents, thus ensuring that the relevant rules and regulations are observed in an effective law.
• Technicality in matters: Manners have also become super technical due to the complexity of today's sophisticated society. The legislature requires specialists with advanced knowledge about specific matters to understand the complex issues related to different topics.
• Flexibility: Delegated legislation provides flexibility and expedites the lawmaking process as it involves the executive branch in regulation, such as police, banking, trade, and foreign exchange. This ensures that unexpected contingencies can be addressed along with efficient workload management, which is necessary for effective governance.
• Emergency: During emergencies or crises, action becomes necessary very rapidly, and that is the area where the skills of the legislature are inadequate to provide swift solutions. Hence, during that time, in such emergencies, delegated legislation provides the executive with wider powers to administer emergencies.
• Experiment: Delegated legislation allows the Executive to test new laws and evaluate their success. This process enables the experience to be utilized and changes implemented as necessary, based on the application of provisions, keeping in mind the interests and impact on people at the ground level.
• Complexity of modern administration: Modern administration has taken on new functions, including employment, health, education, and trade regulations. This is something that has resulted in making the administration complex. Most authorities required new rules and regulations with the necessary powers when the state began intervening in social life and economic administration.

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Types of Delegated Legislation

Delegated legislation comes in many forms, primarily distinguished by their specific features and purposes. There are three recognized types of delegated legislation:

• Orders in Council: These are usually issued by the Queen and Privy Council, where the matter is of national importance.
• Statutory Instruments: This is the most common form of delegated legislation. Usually, it is formulated by government ministers.
• By-laws: These are enacted by a local authority or some other public corporation applicable to a defined geographical area or sector.

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Advantages and Disadvantages of Delegated Legislation

In the legislative procedure, delegated legislation has its fair share of strengths and weaknesses. This bag full of mixed pros and cons will be explored in depth to fully understand its role and implications. 

Advs of Delegated Legislation

Some of the advantages of delegated legislation are as follows:

• One of the main benefits of delegated legislation is that it helps in effective time management. The parliament often gets burdened with various issues that need legal attention. Delegating some legislative powers helps in a smoother, quicker process of law-making.
• In this context, it provides more flexibility compared to primary legislation. This is because it can be amended, enlarged or even withdrawn; thus, there can be easier amendments due to changes in circumstances and demands.
• Specific technical inputs for some areas lie beyond the parliamentarians' knowledge. Delegated legislation allows experts in various fields to join legislation, making laws within reasonable limits that are well-balanced and based on knowledge.
• It is the need of the hour that the legislative body should adopt swift action during times of emergency or crisis. Delegated legislation helps a nation present laws without waiting for parliamentary processes, which guarantees the issue is disposed of at a breakneck pace to address the immediate problems.

Disadvantages of Delegated Legislation

While delegated legislation comes with its strengths, it has its pitfalls.

• There is a risk of power imbalance if legislative powers are delegated to the executive or other bodies. This may, ultimately, end up causing overstepping and, therefore, obliterating the difference between separation of powers, which should be fundamental in democracy.
• As delegated legislation is often the product of decisions made in closed doors by the administrative or executive bodies, sometimes it may miss public scrutiny as an essential feature of the democratic process. It could lead to laws that do not represent the interests or sentiments of the people.
• The legislature's organs may misuse this prerogative conferred upon them for legislation overlegislation, which may provide too many laws and regulations, making laws too complicated.
• The laws framed by different bodies exercising legislative powers may not show uniformity. Therefore, it creates uncertainty and difficulties in its application and interpretation.

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Difference Between Delegated Legislation and Delegated Powers

The following table gives the difference between delegated legislation and delegated powers:

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Delegated Legislation in India

In the Indian legislative system, the doctrine of delegated legislation has been considered for effective governance. The Indian Constitution does not directly provide for the doctrine of delegated legislation, but indirectly recognises its existence and necessity by various provisions.

The increasing complexities of administrative functions and social services, along with the requirements of specialist knowledge in specific fields, have led to the delegation of legislative powers. In India, the practice of delegated legislation is as follows: 

• The rule-making power under modern legislation, granted in most delegations, is conferred on the executive. 
• It includes all the local authorities, such as municipal corporations, district boards, panchayats, and other bodies' legislation.
• Quasi-judicial bodies are conferred with the power to adjudicate upon the rights of the citizens by an administrative adjudication.

Constitutionality of Delegated Legislation in India

The status and constitutionality of delegated legislation in India can be described with the help of several cases that are being dealt with by courts, which have two phases:

• The pre-independence period and
• The post-independence period

Pre-Independence Era

Before India gained its independence, the Indian legal system was under the Government of India Act, 1935. It granted all legislative powers to the executive, allowing them to legislate on matters relating to specified fields.

• Queen v. Burah, 1878, held the decision where the Privy Council granted a conditional charter of legislation. This is a fact where the executive had delegated the power of lawgivers in favor of lawmakers. 
  • For instance, civil and criminal justice administration in a territory could be reposed among officials whom the Lieutenant-Governor should annually select.
• In King v. Banwari Lal Sharma, the Privy Council again used legislative conditions, as in Queen v. Burah. 
  • The case involved other issues, too, but one problem was that the Emergency Ordinance of the Governor-General of India was challenged as invalid.
  • It was argued that the Governor-General was usurping the power of the Provincial Government.
  • The Governor-General established special criminal courts for specific classes of offense; however, the constitution of courts could only be done by the Provincial Government.
  • The Privy Council found it to differ from the delegated legislation.
  • They explained that it represented a strange power in legislation whereby the local body governing the place makes the state's law applicable at any time needed.

Simply put, in Queen v. Burah, the Privy Council allowed the transfer of legislative power to the executive so that justice could be administered. In King v. Banwari Lal Sharma, the Privy Council upheld the authority of the Governor-General to set up special courts, as it was a phenomenal legislative power bestowed upon the local administrative body.

Post-Independence Era

The framework of delegated legislation changed considerably after India became independent and adopted its Constitution in 1950. The Constitution of India explicitly recognized and allowed for delegated legislation. It empowered the legislature to delegate its legislative powers to other entities, with certain limitations and safeguards.

• This post-independence period has seen many landmark cases on the constitutionality of delegated legislation, setting principles and limits under which delegated legislation operates.
• In the case of Raj Narain Singh v. Chairman, Patna Administration Committee (1954), the Supreme Court of India sustained the delegation of power from the legislative body to the executive body. This case enabled the local government to exercise the extension of provisions under the Bengal Municipality Act.
• Although the Indian Constitution does not contain any direct prohibition against the legislation authorizing a delegation of power from the legislature itself, there are also two constitutional limitations on legislative delegation as established by the case of Re Delhi Laws Act (1951):
• The legislature cannot delegate any essential legislative functions: This means the core and fundamental aspects of lawmaking must remain with the legislature itself and cannot be transferred to another authority.
• The delegation of power conferred upon a subordinate authority or executive body should not suffer from the vice of excessive delegation: Meaning, the delegation of power must be limited and must come within reasonable bounds, so that the authority delegated does not go beyond the scope or purpose originally intended by the legislature.
• In the case of Raj Narain Singh, the Supreme Court allowed power delegation from the legislative body to the executive. However, two provisions of the Constitution limit such delegation: essential functions cannot be delegated, and delegated power cannot infringe.

Significance of Delegated Legislation

Delegated legislation plays a vital role in decreasing the parliamentary workload, making legislation quick and flexible, and putting legislative technicalities in the hands of specialists. It also provides a means to address local governance, and it can supplement gaps in primary legislation and can be reviewed by both parliament and the courts.

The importance of delegated legislation can be presented in the following way:

• Lessens the workload of Parliament: It enables the legislature to concentrate on the bigger picture, leaving the finer aspects of the law-making process to the specialized organs.
• Efficiency: It is easy to enact laws quickly without going through the slow process of the main legislative procedure.
• Flexibility: Allows quick change of laws to suit the moving situations or emergencies.
• Technical Expertise: Technical expertise makes the rules fit well in the particular industry or issue.
• Local Governance: Regional laws can be molded to suit local requirements by local authorities.
• Fills the Loopholes in Legislation: Fills the gaps left by primary legislation on unexpected problems.
• Accountability: Laws can be overseen by parliament and the courts, even though they have been delegated.

This combination gives flexibility, expertise and control, essential to delegated legislation.

Conclusion

In conclusion, even though delegated legislation has become essential for modern governance, its pitfalls must be sorted out. Checks and balances of a suitable nature will then allow the beneficial fruits of the creation of delegated legislation to accrue while trying to minimize risks.

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