In this blogpost, Harsha Jesawni, Student, National Law Institute University, Bhopal writes about the meaning, need, position under constitution and criticisms of delegated legislation in India

Introduction

The Constitution of Indian empowers Legislature to make laws for the country. One of the significant legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously such powers cannot be conferred on other institutions. But keeping in mind various multifarious activities of a welfare State, it is not possible for the legislature to perform all the functions. In such situation, the delegated legislation comes into the picture. Delegated Legislature is one of the essential elements of administration whereby the executive has to perform certain legislative functions. However, one must not forget the risk associated with the process of delegation. Very often, an overburdened Legislature may unduly exceed the limits of delegation. It may not lay down any policy; may declare any of its policy as vague and may set down any guidelines for the executive thereby conferring wide discretion to the executive to change or modify any policy framed by it without reserving for itself any control over subordinate legislation. Therefore, even though Legislature can delegate some of its functions, it must not lose its control completely over such functions.

Meaning

Delegated legislation (sometimes referred as secondary legislation or subordinate legislation or subsidiary legislation) is a process by which the executive authority is given powers by primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature’s authority.

Legislation by any statutory authority or local or other body other than the Legislature but under the authority of the competent legislature is called Delegated legislation. It is legislation made by a person or body other than Parliament. Parliament thereby, through primary legislation, enables others to make law and rules through a process of delegated legislation.

Need For Delegated Legislation

The process of delegated legislation enables the Government to make a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to modify or alter sanctions under a given statute or make technical changes relating to law. Delegated legislation plays a very important role in the process of making of law as there is more delegated legislation each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.

Delegated Legislation is important because of several reasons. They are-

1. Delegated Legislation reduces the burden of already overburdened Legislature by enabling the executive to make or alter the law under the authority of Legislature. Thus, this helps the Legislature to concentrate on more important matters and frame policies regarding it.
2. It allows the law to be made by those who have the required knowledge and experience. For instance, a local authority can be permitted to enact laws with respect to their locality taking into account the local needs instead of making law across the board which may not suit their particular area.
3. The process of delegated legislation also plays a significant role in an emergency situation since there is no need to wait for particular Act to be passed through Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been anticipated by the Parliament during the time of enacting legislation, which makes it flexible and very useful to law-making. Delegated legislation is, therefore, able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

Delegated Legislation: Position under Constitution of India 

The Constitution of India gives powers to the Legislature to delegate its functions to other authorities, to frame the policies to carry out the laws made by it. In the case of D. S. Gerewal v. State of Punjab[1], 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.

The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean that there is no scope for delegation in law made under Article312…. The England law enables the Parliament to delegate any amount of powers without any limitation. On the other hand in America, like India, the Congress can delegate only some of its functions. Thus, it does not have unlimited or uncontrolled powers. Thus, India allows for delegated legislation but in a defined and controlled manner with certain restrictions.

Criticism Of Delegated Legislation

Delegated legislation apart from having many advantages is criticized on many grounds-

1. It is argued that delegated legislation enables authorities other than Legislation to make and amend laws thus resulting in overlapping of functions.
2. It against the spirit of democracy as too much-delegated legislation is made by unelected people.
3. Delegated legislation subject to less Parliamentary scrutiny than primary legislation. Parliament, therefore, has a lack of control over delegated legislation, and this can lead to inconsistencies in laws. Delegated legislation, therefore, has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament.
4. Delegated legislation generally suffers from a lack of publicity. Since the law made by a statutory authority not notified to the public. On the other hand, the laws of the Parliament are widely publicised. The reason behind the lack of publicity is the large extent of legislation that is being delegated. There has also been concern expressed that too much law is made through delegated legislation.

Conclusion

In the end we can conclude that the delegated legislation is important in the wake of the rise in the number of legislations and technicalities involved. But at the same time with the rise in delegated legislation, the need to control it also arises because with the increase in the delegation of power also increases the chance of the abuse of power. The judicial control apart from the legislative and procedural control is the way how the delegation of power can be controlled. Thus, the delegated legislation can be questioned on the grounds of substantive ultra vires and on the ground of the constitutionality of the parent act and the delegated legislation. The latter can also be challenged on the ground of its being unreasonable and arbitrary.

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[1] 1959 AIR 512