Our democracy is supported by four pillars – legislature, executive, judiciary and press. The legislature makes laws. It is difficult for the Parliament to carry out and maintain the same as per the law. Hence, the powers are delegated to the executive as per the Constitution. This delegation of powers to other organs is called delegated legislation.
The synonym for delegated legislation is subordinate legislation. Salmond has stated: “Legislation is either supreme or subordinate.” Overall, the law legislated by the administration with the powers given by the legislature is delegated legislation.
- Types of Delegated Legislation
- Advantages of Delegated Legislation
- Disadvantages of Delegated Legislation
- Important Maxim Related to Delegated Legislation
- Judicial and Legislative Control
- Case Laws Related to Delegated Legislation
Two Types of Delegated Legislation
1. Positive Delegation: When the delegated powers are clearly explained in the statute/parent rule, it is termed positive delegation.
2. Negative Delegation: When the delegated powers are obscurely (blur) cited in the main statute, it is termed negative delegation.
Examples: Rules, regulations, by-laws etc., are some of the examples of delegated legislation. In this current pandemic, the State Government of Odisha has decided to authorize the district authorities to create rules on micro containment zones to arrest the pandemic’s further spread. This is a live example of delegated legislation.
Advantages of Delegated Legislation
Some of the main advantages of Delegated Legislation are:
- Saves cost and time when dealing with emergencies.
- More flexible as compared to non-delegated legislation.
- Helps in finding the bottlenecks.
- Sets up a new base for the amendment of statutes, which is the demand of time.
- Helps in relieving the burden on Parliament.
- The affected person’s interest is maintained.
Disadvantages of Delegated Legislation
Some of the main disadvantages of Delegated Legislation are:
- More claims for review of legislation.
- The influence of superior courts may cause interference.
- Authorities may follow the dictatorial principle.
- Increase in corruption and misuse of powers.
- Lack of legal knowledge among common people may trigger unavoidable situations.
- Slowly, the executive will start encroaching upon the legislature if delegation is obscure.
- It is against the doctrine of separation of powers.
- The executive becomes more powerful.
Note: Controlled delegated legislation should mention all the criteria like extension and enablement of the act, powers of the delegates and authority to make and amend rules etc., in the parent statute.
Important Maxim Related to Delegated Legislation
Delegatus non potest delegare: A delegate cannot further delegate. Suppose, A has made power of attorney in favour of B in which he has delegated sale deed agreement execution powers in favour of B. B cannot further delegate or create another power of attorney to C.
Note: If a non-delegable function is delegated, that legislation is bad and ultra-vires of the Constitution.
Judicial and Legislative Control
Judicial control over the delegated power is implemented by two methods – Substantive Ultra-Vires and Procedural Ultra-Vires. Ultra-vires means beyond the powers.
It is a general rule of law that any public servant cannot act beyond their powers, and if he does so, it is accordingly ultra-vires or void. In legislative control, Parliament is the main authority to delegate powers through statutes.
- Parliament has the power to control sub-ordinate law-making agencies.
- It must be laid before Parliament for the prescribed period of time.
- The scrutinizing committee must approve and report to the Parliament.
- Affected groups must be consulted.
- Publication of rules in the official gazette is a must.
The Doctrine of Ultra Vires: If sub-ordinate authority goes beyond the powers conferred by enabling act, such exercise of power is void. Dicey expounded this doctrine.
Procedural Ultra Vires:
- The publication is essential and mandatory.
- Applies to a particular procedure.
- The power vested in one authority by parent act.
- Consulting opinion and suggestion is followed mandatorily.
Substantive Ultra Vires:
- Subordinate authority should not go beyond policy/principles/purposes in the parent act and the Constitution.
- Parent Act should be Constitutional (Chintamani Rao vs State of MP).
- Sub-Ordinate Legislation should not be the ultra vires of the Constitution (Narendra Kumar vs Union, 1960).
Case Laws Related to Delegated Legislation
Gerewal D S vs Punjab State
In this case, Mr Gerewal challenged his removal from one of the prestigious Indian Police Service of the country under Article 226 at the High Court of Punjab. The apex court held that Article 312 of the Indian Constitution does not mention anything that removes delegation power.
State of Sikkim vs Surendra Sharma
Sikkim Govt created certain casual posts for a job. Later, the government removed some non-locals from the service. Non-locals filed a writ petition in the High Court that removing non-local employees violates Article 14 and Article 16 of the Constitution.
Held: Discrimination based solely on the workers’ status as ‘non-locals’ was found to be unconstitutional under Article 14 and Article 16 of the Constitution, and the orders of termination based on that basis were overturned.
Chintaman Rao vs State of MP
Held: The Deputy Commissioner’s prohibition on producing bidis during the agricultural season is a violation of Article 19.1.g of the Indian Constitution.
R Chandran vs M V Marappan
Held: The power of by-laws must be within the limits of the legislature. If not, the same must be struck down.
Re Delhi Laws Act
In re Delhi Laws Act, Precepts are stated as follows:
- Parliament cannot give up on creating another legislative body.
- Delegation power is adjunct to legislative power.
- Repealing power cannot be delegated.
- Necessary functions of the legislature cannot be delegated, whereas unnecessary ones can be.
The above (In re Delhi Laws Act) case law is an excellent example of judicial control over delegated legislation.
The current administration is somewhat complex in our democracy, which demands guided and controlled delegated legislation for its smooth operation with the advancement of time. Every statute must contain certain provisions for its amendment by the executive. Otherwise, it will attract many drawbacks and adverse issues that may draw criticism and untoward circumstances.
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