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Topic: Delegated Legislation
Delegated Legislation and why it is necessary
It is also called subordinate, ancillary, delegated, administrative, secondary or Quasi-legislation. In modern times, it is not always possible for the legislatures to make laws providing every detail. In view of newer areas emerging, law-making today has become not only time consuming but also an increasingly complex and technical affair.
Legislature can lay down the policy and purpose of the legislation and leave 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.
Provisions made for delegated legislation aim to obtain flexibility, elasticity, speed, and opportunity for experimentation. Emergence of modern welfare State and the complexity of law making arc the primary causes for the delegated legislation. Subordinate legislation contains details necessary to ensure that the Act will operate successfully.
Subordinateness’ in subordinate legislation has two dimensions:
- Executive which is subordinate to the legislature and
- nature of the legislation itself.
Delegated legislation is ancillary and cannot replace or modify the parent law nor can it lay down details which are contradictory to substantive law. If subordinate legislation tends to replace or modify the provisions of the basic law to attempts to lay down new law, it is struck down as ultra vires.
Factors Responsible for the Growth of Delegated Legislation
a. In India, legislature meets for about 100 days in a year. There is pressure on its time. Therefore, it legislates on the broad principles and leaves marginal and minor details- essentially operational- to the Executive
b. Legislation is increasingly becoming technical like intellectual Property Law, biotechnology, genetically modified organisms, tax laws etc. Parliament is not expected to have knowledge over these matters
c. Democratisation of rule-making process by providing for consultation With affected interests”.
d. Further, socio-economic schemes being experimental in the initial stages, practical difficulties cannot be foreseen by the broad law. For example MGNREGA.
e. It can help in adaptability of the law for future conditions without formal legislative amendments.
Most of the enactments provide for the power for making rules, regulations, bye-laws or other statutory instruments which are exercised by the specified subordinate authrorities.
- Orders are usually made by Ministers. An order is an exercise of executive powers, (or example to create or dissolve a public body Regulations are also usually made by Ministers. Rules set out procedures, for example rules governing court procedures, or the way in which the government office deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior official. Directions are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions
- By-laws are laws of limited application (usually restricted to certain places) made by local authorities.
Controls over delegated legislation
Limitations on subordinate legislation are that it can not impose any taxation; bar judicial review; can not grant retrospective application; can not authorize expenditure from the Consolidated Fund of India and public revenues.
In order to see that these limitations are not transgressed, there are judicial as well as legislative controls.
a) Judicial control over delegated legislation is on the basis of two grounds
- Substantive ultravires
- Procedural ultravires
1) Substantive ultravires is where the delegating statute itself is unconstitutional for example being violative of a fundamental right.
Sometimes, the Parliamentary Act may be constitutional but the subordinate legislation may be unconstitutional as it has overstepped the jurisdiction granted to it by the parent Act.
2) Procedural Ultravires
Where the executive authority does not comply with the rules for example ‘previous publication’ or laying die rules made before parliament etc.
Also, if the state Government is required to make rules with the concurrence in the Central Government, if it does not do so, it is ultra vires procedurally.
b) Control of Legislature on Delegated Legislation
While subordinate legislation is unavoidable, it is equally important to see how it can be reconciled with the democratic principles or parliamentary control. Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of what is called subordinate legislation.