What do you understand by Subordinate Legislation?

Question: What do you understand by Subordinate Legislation? [RJS 1986]

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Answer

Subordinate legislation is the legislation made by an authority subordinate to the legislature. According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.” Most of the enactments provide for the powers for making rules, regulations, bye-laws, or other statutory instruments which are exercised by the specified subordinate authorities. Such legislation is to be made within the framework of the powers so delegated by the legislature and is, therefore, known as delegated or subordinate legislation.

The need and importance of subordinate legislation have been underlined by the Supreme Court in the Gwalior Rayon Mills Mfg. (Wing.) co. ltd. v. Asstt. Commissioner of Sales Tax and Others, 1974 SC 1660 (1667) thus:

“Most of the modern socio-economic legislation passed by the legislature lay down the guiding principles and the legislative policy. The legislatures because of limitations imposed upon by the time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition, and opportunity for experimentation. The practice of 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.”

It is not always possible for the legislatures to make laws providing every detail, therefore, it lays down the policy and purpose of the legislation and leaves it to the executive, experts, and technocrats to provide for working details within the framework of the enactment by way of rules, regulations, bye-laws or other statutory instruments. That is why; delegated legislation is important in the process of law-making, comprising an important component of the legislation. Powers have also been conferred under various provisions of the Constitution of India on the different functionaries to frame rules, regulations, or schemes dealing with various aspects.

It is equally important to see how this process of legislation by the executive under delegated powers, can be reconciled with the democratic principles or parliamentary control. In the case of D. S. Grewal v. State of Punjab [1959 AIR 512], the Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. Thus, India allows for delegated legislation but in a defined and controlled manner with certain restrictions.

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