(Online Course) Pub Ad for IAS Mains: Chapter: 6 Administrative Law - Delegated Legislation (Paper -1)

Paper - 1
Chapter: 6 (Administrative Law)

Delegated Legislation

In order to reduce pressure on parliamentary time acts of parliament often give Government Ministers or opt per authorities the power to regulate administration details by means risk that delegating powers to executive might undermine the authority of parliament,” such powers are normally only gate —to authorities directing accountable to parliament. The relevant Acts sometimes provide for some measure of direct parliamentary control over proposed delegated legislation, by giving parliament authorities to affirm or respect it. Parliament also has authority to see whether the rules and regulation and framed in accordance with powers it delegated.

Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation\Delegated legislation is the name given to legislation or law that is passed otherwise than in an Act of Parliament. Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of legislation are made each year, compared with only a few dozen Acts of parliament aced legislation can be used for a wide variety of purposes, ran in from relatively narrow, technical matters , to filling in the detail of how an Act setting out broad principles will be implemented in practice.

Delegated legislation is a technique to relieve pressure on legislative time so that it can concentrate on principles and formulation of policies. In the Indian context under Article 77 resident has power to make rules for more convenient trans of business of government. India, rules and regulation, orders, notifications by laws form part of delegated legislation.

Factors responsible for growth of delegated legislation

  1. Lack of time for legislature to shape Legislative details which are technical in nature were administration expertise is required. e.g.- Environmental standard, Intellectual property laws and legislative measures to ego term -and eradicate various diseases.

  2. The subject matter of legislation being technical, complex and, unsuitable for debate in legislature.

  3. Democratizing of rule making process by providing for “Consultation with dected interest”

  4. Advantages of flexibility scope for experiments then the delegated legislation technique is employed.

  5. Further, socio-economic teams being experimental in Initial stages and practical difficulties at stage of implementation cannot be foreseen.

  6. International Community: Delegated legislation is an effective instrument to bring about changes in domestic rules and regulations in accordance with changes that are taking place at global level. For ex., if a country signs a bilateral or a multilateral trees, the provisions of treaty should be incorporated in domestic laws. They do not require legislative approval because legislature already passed those treaties at policy level.

  7. New Economic Issues: Executive has to take into consideration the changing global - economic environment and has to exploit the process of globalization to benefit the interests of country. For this it has to make necessary and continuous changes to rules and regulations so that they became simplified in nature and can help in enhance efficiency of bureaucracy.

  8. Volatile Environment: Stable political economic and cultural environment do not require radical changes in rules and regulations. On the contrary, unstable conditions demand immediate and rapid changes! is can done only through the process of delegated.

  9. Volume of work with the legislature: Because of increasing complexity in nature of activities performed by government, legislation is overburdened with policy making. In order to reduce the burden it has been suggested that legislature can use the technique of delegate legislation to reduce burden on its shoulders.

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Advantages of Delegated legislation:

  1. It saves time for legislature.

  2. It can be easily done in consultation with parties affected.

  3. It allows for flexibility

  4. Expert legislation

  5. Parliament is not always in session

  6. Delegated legislation is resorted to encase of emergencies.

  7. It can be used on an experimental basis.

Criticism of Delegated Legislation

  1. It has long term bearing on legislative control. In a parliamentary form of democracy, legislature is the supreme organ of state because it consists of peoples’ elected representatives. The three organs of state, legislature, executive and judiciary should work harmoniously on basis of separation of power for effective functioning of democracy. In spite of many advantages, delegated legislation weakens legislative control executive. Infect, it has been proved beyond doubt that effectiveness of legislative control has come down drastically after the advent of delegated legislation.

  2. Executive has become more powerful with delegated legislation; executive has encroached upon the domain of legislature by making rules and regulations.

  3. Since executive is also responsible for implementation the division between law making and gets blurred leading to exploitation by executives, In the process executive becomes too powerful.

  4. Possible misuse for political gains, executive can always misuse or abuse the power for short term political gains. It can make legislations in such a way to benefit the ruling party.

  5. Delegated legislation lacks rigorous discussion before law making.

  6. It is against theory of separations of power.

  7. Delegated legislation changes with political changes resulting in political and administration instability.

  8. It is not in confirmation with rule of law.

They cannot he tried in an ordinary court of law an equality before-law violated because of

  1. The special privileges enjoyed by these officials.

  2. Immunity for their actions

  3. Special codes to administration tribunals to evaluate and adjudicate their actions.

What should be done to control Delegated legislation?

  1. Parliament should emphasize more on working on committee system on subordinate legislation. It should thoroughly review all details of legated legislation and give their assent only when they are fully satisfied with proposals. In this way parliament can regain its control over executive.

  2. Judicial Review: All contents of delegated legislation should be subjected to judicial scrutiny and it judiciary finals any substantive ultra-Virus, procedural Ultra-Virus.
    Substantive Ultra-Vires: When delegation start is itself unconstitutional, for ex. being violative of a Fundamental Right. Sometimes the present statues may be constitutional but rules made these under may suffer from vice of unconstitutionality. Then the rules can be challenged in the court of law.
    Procedural Ultra-Vires: When rule making authority does not abide by procedural requirements which the parent law lays down.

  3. Review by Legislature: All aspects of delegated legislation should be reviewed by legislature before implemented by executive. Legislature should also describe the limits-for delegated legislation so that the executive does not misuse the powers for its own selfish ends.

  4. Pre-requisite approval: Before passing delegated legislation, executive has to take permission from legislature on various aspects of delegated legislation. They include both substance as well as procedural asset of delegated legislature.

Safeguards in Delegated Legislation

Delegated legislation is a necessary, and is likely to increase in volume, in view of the complex social organization and vast developmental and promotional activities that a modern government undertakes. Therefore, some safeguards and controls are necessary and desirable. The following safeguards should set hounds-to the system of delegated legislation carefully defined by enabling Acts.

  1. The Jurisdiction of the courts should not be curtailed. As the Donoughmore Committee puts it, “The rule of law requires that all regulations should be open to challenge in the courts, except when Parliament deliberately comes to the; conclusion that it is essential in the public interest to create an exception and to confer on a Minister the power of legislating with immunity from challenge.”

  2. The departments should consult outside interests, which are directly affected by the proposed exercise of rule-making powers.

  3. Explanatory notes should be attached to all regulations so that the layman may know why a particular regulation is needed, and how it would be exercised. Besides, there should be an excel memorandum in the Bill indicating what types of regulations are to be made undue the Bill when it is enacted.

  4. Uniform procedures should be adopted in regard to all regulations they should be numbered, printed, published, and cited.

  5. Rules and regulations should published; their publication should be a condition precedent to their coming into force.

  6. Parliamentary control and supervision should be strengthened. According to John E. Kersell, “The frost appropriate institution of power of delegated legislative power is Parliament.... As Herman Finer has argued, if those who exercise delegated legislation or any other authority, are to be held accountable, it is not sufficient that they look only to their public conscience, to their professional group and to the representatives of the organised pubic, with whom their departments have direct dealings; they must be held effectively responsible to some superior authority outside themselves if democratic communities are to have any real protection against bureaucratic excesses.”

  7. Rule-making power should be delegated to a trustworthy authority, which is approved of by Parliament.

Delegation legislation is inevitable, more so in a society like ours, which is engaged in the transforming itself. When this proposition is admitted consideration should be given to two consequences, which are thus explained by Griffith and Street: “The first is that care should be taken to ensure that Bills contain those matters involving principles of policy and execution, which Parliament is particularly fitted to examine, and that matters of detail only should be reserved for subordinate legislation. The second consequence complements the first. If certain laws are not to be dependent on fulfill Parliamentary examination and approval, mainly because they contain the details of administration, it is all the more important that they should be considered by those who are likely to be affected by them and who will be able to grasp their significance and assess their practicability and likely effect. It is this, which makes the consultation of interests... .an integral part of the process and which makes its wider adoption seems to be desirable. It is therefore, greater use to be made of advisory committees representing the several affected interests in grinding out administrative details.

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