Definition of Delegated Legislation

Delegated Legislation, also known as subordinate legislation, secondary legislation, or administrative rule-making, refers to the law made by an authority other than the legislature, under the powers "delegated" to it by the legislature itself. In a modern state, it is a practical reality that the legislature (e.g., the Parliament of India) does not have the time, expertise, or flexibility to make every single detailed rule required for governing the country. Therefore, the legislature enacts a primary law, often called the "parent act" or "enabling statute," which lays down the broad policy and principles. This parent act then delegates the power to a subordinate authority, typically the executive branch (such as a government department or a specific minister), to make detailed rules and regulations to implement the law.

In essence, delegated legislation is law made by the executive, but with the permission of the legislature. The term can refer to both the process of delegating the law-making power and the product of that process (i.e., the rules, regulations, by-laws, and orders themselves).

Legislation made by an executive authority under powers granted by legislature

The core of the concept lies in this relationship between the legislature and the executive. The legislature is the primary law-making body, but it entrusts a part of its function to the executive. This delegation is not an abdication of power; the legislature retains ultimate control.

Key Characteristics:

• Subordinate Nature: Delegated legislation is always subordinate to the parent act that grants the power. If a rule or regulation made by the executive goes beyond the scope of the power granted in the parent act (i.e., it is ultra vires), it can be struck down by the courts.

• Source of Authority: Its authority is derived entirely from the enabling statute. It has no independent legislative power.

• Forms of Delegated Legislation: It can take various forms, including:

  • Rules: Detailed provisions made by the government to carry out the purposes of the act.
  • Regulations: Made by specific bodies or authorities (like SEBI or RBI) to regulate a particular sector.
  • By-laws: Made by local authorities (like municipal corporations) to govern local matters.
  • Orders, Schemes, Notifications: Other instruments used to implement specific provisions of an act.

Answer:

Necessity and Justification for Delegated Legislation

The practice of delegating legislative power is a universal feature of modern governance. While it appears to conflict with the traditional doctrine of separation of powers, its necessity is widely accepted due to several compelling practical reasons. Delegated legislation is not just a matter of convenience; it is an indispensable tool for effective administration in a complex world.

Complexity of modern administration

The functions of a modern welfare state are incredibly vast and complex. The state is no longer just concerned with defence and law and order; it regulates industries, protects the environment, manages public health, provides social security, and oversees technology. This complexity has two major implications for law-making:

• Volume of Legislation: The sheer volume of law required to govern these complex areas is enormous. If the legislature were to handle every single detail, its schedule would be completely overwhelmed, leading to legislative paralysis. Delegating the detailed rule-making to the executive allows the legislature to focus its limited time on debating the major policies and principles of law.

• Technicality: Many subjects of modern legislation are highly technical and require specialized knowledge. For example, setting emission standards for industries, prescribing safety standards for nuclear power plants, or regulating complex financial instruments requires scientific, engineering, or economic expertise that Members of Parliament cannot be expected to possess. It is more efficient and effective to delegate these technical rule-making tasks to expert bodies within the administration (like the Central Pollution Control Board or the Securities and Exchange Board of India).

Need for expertise and flexibility

Administrative rule-making offers a level of expertise and flexibility that the legislative process cannot match.

• Consultation and Expertise: When framing rules, the executive department can consult with the specific groups and experts affected by the proposed rules. This allows for a more informed and practical outcome than a broad-based legislative debate.

• Adaptability: Society and technology are constantly changing. The legislative process is slow and cumbersome, making it difficult to adapt laws to new situations quickly. Delegated legislation provides flexibility. Rules and regulations can be made, amended, or repealed much more quickly by the executive to respond to changing needs or to incorporate new scientific knowledge. For instance, if a new drug is found to have harmful side effects, the drug control authority can amend the rules to ban it much faster than Parliament could pass a new law.

Speed and efficiency

The speed and efficiency of administrative rule-making are critical, especially in certain situations.

• Emergency Situations: In times of emergency, such as a natural disaster, a pandemic, or an economic crisis, the government needs to act swiftly. The legislative process is too slow to handle such situations effectively. Delegated legislation allows the executive to take immediate action. For example, during the COVID-19 pandemic, governments around the world used their delegated powers to issue rapid and evolving rules on lockdowns, travel restrictions, and public health measures.

• Experimentation: Delegated legislation allows for experimentation. An administrative authority can frame a rule, see how it works in practice, and then easily amend it if it proves to be ineffective or has unintended consequences. This trial-and-error approach is not feasible with primary legislation.

In summary, delegated legislation is a necessary evil in the modern administrative state. While it carries the risk of concentrating power in the executive, its advantages in terms of efficiency, flexibility, and expertise are undeniable. The challenge for administrative law is not to eliminate delegated legislation but to ensure that it is subject to effective controls (parliamentary, judicial, and procedural) to prevent its misuse.

Sub-Delegation

Sub-delegation refers to the process where an authority to whom power has been delegated by the legislature further delegates that power to a subordinate authority. It is a delegation of a delegation.

The general principle of administrative law regarding sub-delegation is encapsulated in the Latin maxim: Delegatus non potest delegare, which means "a delegate cannot further delegate." The rationale behind this rule is that when the legislature delegates a power to a specific high-ranking authority (e.g., the Central Government or a Minister), it does so because it has trust and confidence in the judgment and discretion of that particular authority. If that authority were free to sub-delegate the power to any of its subordinates, the legislature's intent could be defeated.

Permissibility of Sub-Delegation

While the general rule prohibits sub-delegation, it is not absolute. Sub-delegation is permissible in certain circumstances:

1. Express Authorization: The parent act itself may expressly authorize the delegate to sub-delegate its power. If the statute says, "The Central Government may, by order, direct that the power to make rules under this section shall also be exercisable by such officer or authority as may be specified in the order," then sub-delegation is perfectly valid.

2. Implied Authorization: The power to sub-delegate can also be implied from the nature of the power and the purpose of the statute. If the power is of such a character that it is impractical for the original delegate to exercise it in all cases (e.g., a power to grant licenses throughout the country), a court may infer that the legislature intended to allow sub-delegation to local officials.

However, it is a firm rule that an authority cannot sub-delegate any essential legislative function or a function involving significant policy decisions unless the statute explicitly permits it. The courts are generally stricter in scrutinizing sub-delegation than they are with the original delegation from the legislature.

Answer:

Conditional Legislation

Conditional Legislation is a type of legislative action where the legislature makes a complete and valid law but leaves its implementation or application to the determination of an external fact or condition by the executive authority. In this case, the legislature itself has decided the policy and enacted the law, but the law is kept in abeyance. It will only come into force when a specified condition is fulfilled, and the executive is empowered to determine when that condition has been met.

This is not considered to be true delegated legislation because the executive is not making any new law. The law is already made by the legislature. The executive is merely given a switch to turn the law on. It is an administrative function of fact-finding, not a legislative function of rule-making.

Characteristics and Examples

In conditional legislation, the delegated power is limited to determining:

• When the law should be brought into force.
• To which area it should be applied.
• To which class of persons or goods it should be applied.

Answer:

Administrative Rule-Making (Rules, Regulations, Bye-laws, Orders)

This is the most common and recognizable form of delegated legislation, where the executive is given the power to "fill in the details" of a primary statute. The parent act sets out the framework, and the executive authority makes specific and detailed provisions to give effect to that framework. The specific name given to the instrument depends on the terminology used in the parent act and the authority making it.

Regardless of the name, all these forms are subordinate to the Constitution and the parent act. Their validity can be challenged in court on grounds of unconstitutionality or for being ultra vires the enabling statute.

Judicial Control

Judicial control, exercised through the power of judicial review, is the most crucial and effective mechanism for ensuring that delegated legislation remains within its legal bounds. The courts act as the ultimate arbiter, safeguarding the Rule of Law by scrutinizing administrative rule-making. The underlying principle of judicial review is the doctrine of ultra vires (literally, "beyond the powers"). Any rule or regulation that goes beyond the power conferred by the parent act or violates the Constitution is declared void by the courts.

Vires of the Rule

Vires is a Latin term meaning "powers." When a court examines the "vires of a rule," it is investigating whether the rule-making authority had the legal power to make that rule. This examination is done on two levels: substantive and procedural.

Substantive Ultra Vires

A rule is considered substantively ultra vires when the rule-making authority has exceeded the substance of the power delegated to it by the parent act. The content of the rule is outside the scope of what the legislature permitted.

This can happen in several ways:

• The rule is outside the scope of the delegating clause: The rule deals with a subject matter not covered by the section of the parent act that delegates power.

• The rule is in conflict with the parent act: A rule cannot contradict or be inconsistent with any provision of the statute under which it is made.

• The rule is in conflict with another statute: Delegated legislation cannot override the provisions of any other primary statute passed by the legislature.

Answer:

Procedural Ultra Vires

A rule can be struck down for being procedurally ultra vires if the rule-making authority has failed to follow a mandatory procedure prescribed in the parent act for making the rules. The content of the rule may be perfectly within the authority's power, but the 'how' of making it was flawed.

Common procedural requirements include:

• Prior Consultation: The parent act may require the authority to consult with specific bodies or affected interests before making the rules.

• Prior Publication ("Pre-publication"): The act may require the draft rules to be published to invite objections and suggestions from the public.

• Publication in the Official Gazette: This is a common requirement to ensure that the public is officially notified of the law.

If the court finds that the prescribed procedure was mandatory and it was not followed, the resulting rule will be declared invalid.

Substantive illegality (Arbitrariness, Unreasonableness, Malafides)

Even if a rule is within the substantive scope of the parent act and all procedures have been followed, it can still be challenged on the grounds that it is substantively illegal. This is a check on the exercise of discretion in rule-making.

• Arbitrariness and Unreasonableness: A rule can be struck down if it is manifestly arbitrary or so unreasonable that no reasonable authority could have made it. The leading case on this is Air India v. Nergesh Meerza (1981), where the Supreme Court struck down a regulation that required air hostesses to retire upon their first pregnancy, calling it "most unreasonable and arbitrary" and a violation of Article 14 of the Constitution.

• Malafides (Bad Faith): If it can be proven that the rule was made not for the public good but for a dishonest or corrupt purpose, it can be invalidated for being made in bad faith.

Violation of Constitution

This is the highest ground of judicial review. No law, whether primary or delegated, can survive if it violates a provision of the Constitution of India.

• Violation of Fundamental Rights: A piece of delegated legislation can be struck down if it infringes upon any of the Fundamental Rights guaranteed in Part III of the Constitution (e.g., Article 14 - Equality, Article 19 - Freedoms, Article 21 - Life and Liberty).

• Unconstitutional Delegation ("Excessive Delegation"): The courts can also strike down the delegating clause in the parent act itself if it is found to be unconstitutional. The legislature cannot delegate its essential legislative functions (like determining policy or creating a new tax). If it does so, it amounts to an abdication of its constitutional duty, and the delegation is considered "excessive" and unconstitutional.

Legislative Control

The legislature, being the authority that delegates the power, has a responsibility to oversee how that power is used. Legislative control is exercised to ensure that the executive does not overstep its delegated authority and that the rules made are consistent with legislative intent. This control is exercised both directly and indirectly.

Laying Procedures (Affirmative, Negative, Neutral)

The most common form of direct legislative control is the requirement of "laying" the delegated legislation before the houses of Parliament or State Legislature. This is often mandated by the parent act itself. The purpose is to keep the legislature informed and to provide an opportunity for scrutiny. Laying procedures can be of different types, with varying levels of control:

While laying is an important tool, its effectiveness in practice can be limited due to the legislature's lack of time and the technical nature of the rules.

Parliamentary Committees (e.g., Committee on Subordinate Legislation)

To overcome the limitations of direct legislative scrutiny, both houses of the Indian Parliament have established dedicated committees to examine delegated legislation. These are:

• The Lok Sabha Committee on Subordinate Legislation
• The Rajya Sabha Committee on Subordinate Legislation

These committees act as the "watchdogs" of the legislature. Their function is to meticulously scrutinize the rules and regulations made by the executive and to report to the House whether the powers delegated have been properly exercised. The terms of reference for these committees typically require them to check if a rule:

• Is in accord with the general objects of the Constitution and the parent act.
• Contains matter which should more properly be dealt with in an Act of Parliament.
• Imposes a tax.
• Gives retrospective effect where the parent act does not authorize it.
• Appears to make unusual or unexpected use of the powers conferred by the statute.

The reports and recommendations of these committees, while not legally binding, carry significant weight and put pressure on the government departments to amend or withdraw objectionable rules. This committee-based scrutiny is a more effective and detailed form of legislative control than floor debates.