Delegated Legislation | Explained

Delegated Legislation | Overview

• Delegated Legislation
• Reasons for Delegated Legislation
• The danger of Delegated Legislation
• Keeton has summarized the dangers under two heads
• Safeguard against Delegated Legislation

Delegated Legislation

Delegated legislation is a kind of subordinate legislation. Generally, the ‘delegated legislation’ means the law made by the executive under the powers delegated to it by the Supreme legislative authority. It comes in the form of orders, bye-laws etc. The Committee on Minister’s power said that the term delegated legislation has two meanings-

1. Firstly, it means the exercise of power that is delegated to the executive to make rules.

2. Secondly, it means the output the output or the rules or regulations etc. made under the power so given.

Sub-Delegation is also a case in Indian Legal system. The power to make subordinate legislation is derived from existing enabling act. It is fundamental that the delegate on whom such power is conferred has to act within the limits of the enabling act. Its purpose is to supplant and not to supplement the law. Its main justification is that sometimes legislature does not foresee the difficulties that will come while enacting the law.

Therefore, delegated legislation fills in those gaps which are not seen while the formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of experiences gained during the working of legislation.

Reasons for Delegated Legislation

In modern times, delegated legislation has become imperative and inevitable due to the following reasons:-

1. Time factor – The parliament is so much occupied with matters concerning foreign policy and other political issues that it has no time to enact social legislation in all its details. Therefore, the Parliament frames only the broad rules and principles, and the department is left to make rules and to fill in details.
2. The technicality of the matters – With the progress of society, things have become more complicated and technical. All the legislators may not know them fully and, hence, they cannot make any useful discussion on it. Therefore, after framing of the general policy by the Parliament the government departments or other bodies who know its technicalities are given the power to lay down the details.
3. Emergency – During the time of emergency quick and decisive action is very necessary, and at the same time, it is to be kept confidential. The Parliament is not at all fit to serve this end. Therefore, the executive has delegated the power to make rules to deal with situations. In England, the defence of Realm Act, 1914-15, the Emergency Powers Act, 1920 and the Emergency Powers Act, 1939-40 are examples of such delegation during the First and Second world wars.
4. Flexibility- To adapt the law according to future contingencies or any other adjustments which are to be made in the in future can be done efficiently and effectively only when a small body is given the powers to do so. Otherwise amending acts will become necessary and that would cost wastage of time and money. Therefore, delegation to the departments becomes necessary.
5. Local Matters- These are matters which concern only a particular locality or a particular group of the profession. Any legislation on these matters needs a consultation with the people of that particular locality, group or profession. Thus regarding such legislation, the departments are given powers to make changes and rules in consultation with the person acquainted and with interested in it.
6. Experimentation- Some Acts of Parliament provides for their coming into operation in different localities on different dates according to their inability, and as a matter of experiment. For this purpose, the ministers are given the power to make orders about the date of its application.

The danger of Delegated Legislation

Prof. Keith has, in great detail, described the dangers of the delegated legislation. Some important ones are:-

1. Legislation may be passed in a skeleton form and thus wide powers of action to make new laws and to impose the tax is given;
2. Parliament gets inadequate time to scrutinize the regulations;
3. Some of the regulations attempt to deprive the subjects of recourse to the law courts for protection;
4. The procedural advantages of the Crown against the subject (Crown Proceedings Act, 1947) has improved the position to some extent but renders it difficult for him to obtain redress for illegal actions done under the authority of delegated legislation.

Keeton has summarized the dangers under two heads:

1. Excessive power may be delegated.
2. The Governments Department may assume a wider legislative competence than what the Parliament has granted.

Safeguard against Delegated Legislation

The following safeguards have been generally suggested by jurists against the delegated legislation:-

Parliamentary Control

In England when a bill that provides for the delegation of power is before the house, the house may modify, amend or refuse altogether the power proposed to be delegated in the bill. The Government has set up a Select Committee on the statutory instrument since 1944 to examine every instrument laid down before the house of commons with a view to determining whether the special attention of the house should be drawn to it certain specified grounds.

An act was also passed in 1946, i.e. ‘Statutory instrument act which provides that copy of the Instrument shall be laid before the house before it comes into operation. Apart from these, there are other methods also through which the parliament can exercise control. It is submitted that in practice these safeguards have not proved much effective and thus, substantial control is not exercised.

Judicial Control

To some extent, judicial control is also exercised over the delegated legislation. In England, as the parliament is supreme, it can delegate any amount of power. Therefore, judicial control is confined within very narrow limits. The courts in these matters interfere under the doctrine of ultra vires or under their writ jurisdiction. The main ground on which this interference is made is that the authority to whom the power is delegated has exceeded it.

The grounds on which courts declare bye-law ultra vires are that it is unreasonable or repugnant to the fundamental laws of the country, or is vague, or it has not been made and published in accordance with the rules prescribed for the same. But in modern times, there is a tendency to oust the jurisdiction for the court and this is expressly provided in the statute which delegates the power. Thus the courts to have not remained very much effective in controlling delegated legislation.

Publicity

It is necessary that due publicity should be given to the delegated legislation because without such publicity it may be declared ultra vires.

Other Controls and safeguards

Certain other safeguards which have been suggested and to some extent have been adopted in practice also are: the delegation should be made only to trustworthy bodies expert device should be taken and the persons whose interests to be affected by the concerned delegated legislation should be consulted before making any rule regarding them. Authors, lawyers, and judges have often vigorously attacked delegated legislation in their writings, opinions, and judgments respectively, which have to some extent, discouraged delegated legislation.

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Sources:

1. Administrative Law by I.P. Massey, Eastern Book Company, 8th Edition
2. SCC Online

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