Principles of Delegated Legislation

Introduction:

The three major organs of the government are the Legislative, Executive, and Judiciary. These three organs are not independently independent but they are interdependently independent. Legislature performs law-making functions. Under Indian Constitution, Articles 245 and 246 provides that the legislative functions shall be discharged by the Parliament & State legislature.

The Parliament can’t pass laws at all times. Hence, it delegates the law-making power to the Executive or the Administrative Authorities. Thus, it is known as delegated legislation.    

Concept of Delegated Legislation

The term “Legislation” means “lawmaking power”. Legislation is of 2 kinds. (a) Supreme Legislation means legislation that is passed directly by the supreme/sovereign Legislature ; (b) Subordinate Legislation means legislation passed under the power/authority delegated to the Administrative Authority by the supreme legislature. 

 The expression “Delegation of Authority” means “transfer of authority to the subordinate”. When a subordinate by virtue of delegated authority passed a law it is called “Delegated Legislation”. 

Delegated Legislation is also called as “Subordinate Legislation” or “Administrative Legislation”. It means “conferring one’s power of law-making to another, or extension of power of law-making to the Executive by the Legislature”.

The legislature thus passes skeleton legislation and delegates power to the concerned authorities to make Rules, By-laws, Regulations, Orders, etc., The delegation minimizes the workload of the legislature, enables to frame flexible legislations. Also, Legislation on technical matters can be done effectively.

Advantages of Delegated Legislation

The advantages of Delegated Legislation are:

1. Pressure on Parliamentary Time:

The pressure on the legislature has increased and sufficient time will not be there to discuss minor details. Consequently, confers on the authority to make Subordinate Legislation (e.g., Rules, By-laws, Regulations etc.,) to supplement the main legislation.

2. Technicality:

When the legislation is of technical nature which requires it to be dealt with by the experts then it becomes necessary to delegate to the appropriate authority.  

3. Flexibility in Amendment:

Delegated legislation is more flexible than ordinary legislation. If any Orders, by-laws, etc., are found to be defective they can be easily be amended or revoked. This is however not very easy for ordinary legislation.

4. Emergency Situations:

In the emergencies such as economic and national emergencies which require quick action and due to overburden the legislature will find it difficult in such situations. In that situation, the delegation makes it effective.

5. Secrecy:

Sometimes, in case of public interest, the provisions of the law should not be known until the time of operation Example: Imposition of Import duty etc., 

History of Delegated Legislation

Delegated Legislation is accepted both in Pre-constitution Period and post constitution Period in India.

During the Pre-constitution Period, the legislative power was delegated to a certain extent. All those legislations were under the control of the British Parliament and it can repeal, alter or supersede any enactment.

Even in post constitution Period, this principle is accepted. Indian Parliament conferred on Executive and other Administrative Authorities to formulate laws, rules, bye-laws, etc., for the peaceful and successful administration.

Kinds of Delegating Legislation

There are SIX important kinds by which the legislature delegates the law-making power to the executive.

1. Central Act may delegate to the Central Government the law-making power.
2. Central Act may delegate to the State Government the law-making power.
   Example: Sec 8 of the Opium Act, 1878.
3. Central Act may delegate law-making power to both the Central and State Governments.
   Example: Sec 35 of the “Administrative Tribunals Act,1985” empowers the center and Sec 36 empowers state governments to make rules.
4. Central Act may delegate to the statutory bodies the law-making power.
   Example: Sec 49 of the Advocates Act,1961 empowers the Bar Council of India.
5. State Act may delegate to the State Government the legislative power.
   Example: Sec 99 of the Andhra Pradesh Education Act,1982 etc.
6. State Act may delegate to the statutory bodies the legislative power.
   Example: State Electricity Act empowers the Electricity board.

International Perspective

England:

In England, Parliament is Supreme. It has unlimited law-making powers. It can’t be questioned by Court on any ground. Hence, there is no limit on the parliament for delegation of its power to the executive.

The parliament need not provide any standard to exercise that power. However, it can control delegation if it pleases to do so.

United States of America:

In the USA the delegated legislation is not accepted. The doctrine of separation of powers is adopted by the US constitution. Hence, the U.S Congress can’t delegate legislative power. Also, by “Delegatus non-protest delegate” the congress gets power from people to delegate. Being a delegate further it cannot delegate its power to another.

But in subject to certain conditions U.S Congress has the power of delegation to make law.

In Yakus Vs United States¹ the validity of delegation by the Emergency Price Control Act, 1942 to the Price Administrator was challenged. On the ground that the delegation prescribed definite standards to guide the delegate, it was held to be valid. 

Therefore, delegated legislation in the USA is not accepted in principle but in practice, the Legislature has entrusted the law-making power to the Executive.

Constitutionality of Delegated Legislation (India)

There is no provision in the Indian constitution empowering the legislature to delegate the power of making law to the Executive. However, Art 13(3) (a) confers on the legislature to delegate law-making power to the Executive. According to this Article “Law” includes any rules, orders, by-laws, regulations and notifications etc.,

Judicial Control on Delegated Legislation

It can be challenged in the courts of law on the delegated legislation as being unconstitutional, excessive, and arbitrary. Judiciary can control it on two grounds i.e., firstly, on the ground of substantial ultra vires; secondly, on the ground of procedural ultra vires.

In Chintaman Rao’s² Case Prohibition of making bidis in the agriculture season by the Deputy Commissioner is violative of Article 19(1)(g) of the Constitution of India.

Types of Delegated Legislation

1. Municipalities and Other Local Bodies:

All the municipalities, gram panchayats, Zilla Parishad, etc., are given the power to make rules, bye-laws, etc., with limited powers for the administration of their respective jurisdiction.

2. Autonomic Legislation:

Autonomous or autonomic legislation means the law is made by the person for their guidance within the sphere in which they are authorized to make such laws.

3. University:

The administration of the University is appointed and maintained by an administering body that is given the power to make rules, by-laws, etc., for the administration of its respective jurisdiction.

4. Registered Company:

Each Registered company is a “Person”. Share-holders are its members and they make rules and regulations for the company in their Articles of Association and MOA.

5. Societies:

Societies are formed by the same group of individuals with social and welfare objectives. The members frame the by-laws within the purview of the parent Acts.  Several types of Societies such as Societies under Societies Registration Act,1860; Societies under Co-operative Societies Act etc.,

6. Trade Unions:

Trade Unions are formed by the workers to protect their interests in the factories. The members frame bye-laws within the Trade Unions Act,1926.

7. Judiciary:

Article 145 of the Indian Constitution explains about the delegation of rulemaking power from the parliament to the Supreme Court for making the appropriate rules for the effective administration of justice in India. Similarly, the High Courts empower the subordinate courts.

8. Executive:

The parliament is the main source of supreme legislation. In order to implement the social and welfare programs, the delegation of powers to the executive has become compulsory and unavoidable.

Case Laws

Bhushan Lal Vs State³

Two questions have been referred to in the case:

•  “Whether Sections 3, 4 & 6 of the Essential Supplies (Temporary Powers) Act, XXIV [24] of 1946, or any part thereof are ultra vires of the Indian Legislature which passed the Act?  
• If the provisions of these sections are ultra vires, whether that affects the validity of the entire Act or not”

Final Judgement of the Case:

Sections 3 and 4, Essential Supplies (Temporary Powers) Act XXIV [24] of 1946 are intra vires, while Section 6 is ultra vires of the Indian Legislature which passed the Act. The invalidity of Section 6 does not affect the validity of the rest of the Act.

Gwalior Rayon Silk Mfg. (WVG.) Co.  Ltd. Vs The Asst.  Commiss. Of Sales Tax & Ors.⁴

Facts of the Case:

• Each State imposes a Sales tax on the sales within the state whereas, for the sales made between the states, the parliament made The Central Sales Tax Act, 1956.
• The Petitioner also contended that the Parliament had virtually abdicated itself in favor of the state legislature that the rates applicable in the respective states had been adopted for payment of inter-state tax and the provision consequently would suffer from excessive delegation.

Final Judgement of the Case:

It was held by the Supreme Court that it was not excessive delegation but it was within permissible delegation and was within the guidelines of the parliament.

In Re Delhi Laws Act, 1950⁵

Brief Facts:

Before Independence, there were three kinds of states in India. Part-A, Part-B, and Part-C States. The Central Government wanted to regularise the administration and abolish all those three categories. For that The Delhi Laws Act,1912 was made.

 Three questions have been referred :

• “Was Sec 7 of the Delhi Laws Act,1912 or any provisions or to what extent it is ultra vires the Legislature.
• Was the Ajmer-Merwara (Extension of Laws) Act,1947 or any provisions or to what extent it is ultra vires the Legislature.
• Is Sec 2 of the Part-C States Laws Act of 1950 or any provisions or to what extent ultra vires the Legislature”

Final Judgement of the Case:

It was held that Questions 1 & 2 are not ultra vires because the legislature which passed the Act contains the provisions. Question 3 first part is intra vires and the second part is ultra vires.

Advocates Apprentice Rules Case⁶

Brief Facts:

The Bar Council made a rule restraining the persons not to enroll their names whose age exceeds 45 years.

Final Judgement:

The Court quashed the rule of compulsory apprenticeship stating that it was done under the colorable legislation through the Original Act, i.e., The Advocates Act,1961 do not make it necessary and opined that the Bar Council exceeded its limits in delegated legislation.  

Conclusion

Delegated Legislation reduces the burden on the legislature & also helps in technical matters where experts are involved in law-making who have wide knowledge about the technical issues. It enables in making law through the power given by the Parent/supreme Legislature to the subordinate authorities. Thus, Subordinate authority can use their discretion on making laws and can be modified, repealed, and amended by the Supreme/parent legislature. Thus, by the delegation of legislation, various experiments are made and also are implemented for better socio-economic and socio-welfare of the people.

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^{[1] 1321 U.S. 414 (1944)}  

^{[2] Chintaman Rao and Ors. v. State of Madhya Pradesh, 1951 AIR 118}

^{[3] AIR 1952 All 866}

^{[4] 1974 AIR 1660, 1974 SCR (2) 879}

^{[5]  AIR 1951 SC 332}

^{[6] AIR 1999 SC}