Meaning and Evolution of Delegated Legislation

Delegated Legislation

Delegated legislation, also known as secondary or subordinate legislation, is a process where the executive branch is given the power by primary legislation (laws made by Parliament) to create rules or laws needed to enforce and manage those primary laws. This means that the law is made by someone or a body other than the Parliament, but with Parliament's permission. In simple terms, it’s when Parliament allows other authorities, such as local councils or government agencies, to make certain laws or rules under the guidance of the main law created by Parliament.

Why Delegated Legislation Is Important?

Delegated legislation is important because it allows the government to create laws more quickly without waiting for a new Act of Parliament to be passed. It also gives authorities the power to adjust or change regulations under an existing law or make technical updates. Here’s why delegated legislation is crucial:

• Reduces the Legislature's Workload: Delegated legislation helps ease the burden on Parliament by allowing the executive branch to create or amend laws. This frees up Parliament to focus on more significant issues and policy-making.
• Expertise and Local Knowledge: It enables laws to be made by those who have specific knowledge or experience in certain areas. For example, local authorities can create laws tailored to their community’s needs, rather than having one-size-fits-all laws that might not suit every area.
• Flexibility and Adaptability: Delegated legislation is adaptable, covering situations that Parliament may not have foreseen when passing the original law. This flexibility allows the law to evolve and meet the changing needs of society.

Forms of Delegated Legislation

Delegated legislation can take three main forms: statutory instruments, orders in council, and by-laws.

Statutory Instruments

Statutory Instruments are laws created by the government under the authority granted by an Act of Parliament, often referred to as the "parent act." These instruments allow the government to implement specific rules or regulations as necessary. For example, Orders in Council are a type of statutory instrument made by the government, typically in urgent situations, and they can impact both the public and individuals.

By-Laws are rules made by local authorities and approved by the Central Government. These are necessary because Parliament doesn't have the time to debate every minor issue. Delegated legislation allows for quicker law-making compared to the slower process in Parliament, where every bill must go through multiple stages.

Members of Parliament may also lack the technical expertise needed for certain laws. For example, making laws about taxation requires specialized knowledge that experts in the field possess. Similarly, local authorities are better positioned to understand and address the specific needs of their communities.

Delegated legislation also allows democratic bodies to update laws as needed, promoting social welfare. However, it's essential that there is oversight to prevent the misuse of these delegated powers. Parliament and the Judiciary both have roles in controlling delegated legislation. Parliament oversees this through statutory committees that review the laws made, ensuring that the powers given to rule-making authorities are not abused.

For instance, in the case of Narendra Kumar v. Union of India, the Supreme Court held that under Section 3(5) of the Essential Commodities Act, 1955, any rules made under the Act must be presented before both houses of Parliament. Consequently, Clause 4 of the Non-Ferrous Control Orders, 1958, had no effect until it was presented in Parliament.

Factors Contributing to the Rapid Growth of Delegated Legislation

• Pressure on Parliament: The expanding role of the state means that more laws are needed to govern various activities. However, Parliament doesn't have enough time to address every issue. To manage this, Parliament has created policies that allow the executive branch to make certain laws on its behalf.
• Technical Expertise: Some areas of law require specialized knowledge that members of Parliament may not possess. In such cases, it’s more effective to give law-making power to experts who understand the technical details, such as those related to gas, atomic energy, or pharmaceuticals.
• Flexibility: When new situations arise, laws may need to be adjusted quickly. Amending laws through Parliament can be a slow and complicated process. Delegated legislation allows the executive to make changes swiftly and efficiently, such as in banking regulations.
• Emergency Situations: During emergencies, there isn’t always time for Parliament to pass laws quickly enough to address urgent issues. Delegated legislation allows the executive to act immediately, which is especially important during times of war or national crises.
• Complexity of Modern Administration: As the functions of the state become more complex, extending into economic and social areas, it becomes necessary to allow various authorities to exercise greater power in specific situations. For instance, in countries like Bangladesh, controlling private trade, business, or property may require immediate action, necessitating that the administration be granted sufficient authority to act swiftly.

Advantages of Delegated Legislation

• Saves Time for the Legislature: It reduces the workload of Parliament by allowing others to handle the details of law-making.
• Allows for Flexibility: Laws can be quickly adapted to changing situations without the need for lengthy legislative processes.
• Expert Input: Experts can contribute to making laws, especially in specialized areas that require technical knowledge.
• Continuous Operation: Laws can be made even when Parliament is not in session, ensuring governance is uninterrupted.
• Testing Grounds: It allows for laws to be introduced on a trial basis to see how they work before being fully implemented.
• Emergency Response: Delegated legislation enables quick action during emergencies when immediate legal measures are needed.
• Consultation: It allows for easy discussion with relevant parties to address specific issues in law-making.

Classification of Delegated Legislation

Power to Bring Act into Action

This involves the authority given to the Central or State Government to decide when an Act will come into effect. The specified date for the Act to be enforced is announced through a notice in the Official Gazette.

In the case of A.K. Roy vs. Union of India, the Supreme Court ruled that the executive has the authority to bring an Act into force, and this power should not be seen as excessively delegated. The Court dismissed the argument that the power was excessive, recognizing the practical challenges in enforcement. Therefore, the executive has the discretion to decide when to implement the Act.

Conditional Legislation

Here, the legislature designs the rules, but the executive is responsible for implementing and enforcing them. The executive must ensure that certain conditions are met before the law can be put into operation. If these conditions are satisfied, the law is enforced; otherwise, the necessary steps are taken to bring it into effect. This process is known as Conditional Legislation.

Types of Conditional Legislation:

• Power to Bring the Act into Action: The authority to decide when an Act will come into effect.
• Power to Extend the Time Period or Life of the Act: The ability to extend how long the Act remains in force.
• Power to Extend the Act's Application to Any Territory: The power to apply the Act to different areas or make changes or restrictions within the Act itself.
• Power to Exempt the Act's Operation in Certain Areas or Subjects: The authority to exclude the Act's enforcement in specific regions or on certain topics.

Criticism of Delegated Legislation

• Overlapping of Functions: Delegated legislation can blur the lines between different branches of government, as authorities other than legislators start making or amending laws.
• Reduced Legislative Control: There are concerns that the control and influence of the Legislature have weakened with the rise of delegated legislation.
• Democratic Concerns: Allowing unelected officials to make significant legislative changes can go against the principles of democracy.
• Executive Overreach: The Executive, after gaining substantial power from the Legislature, may overstep its bounds by making rules and regulations that encroach upon legislative functions.
• Less Parliamentary Scrutiny: Delegated legislation often undergoes less rigorous examination than primary legislation, leading to potential inconsistencies and misuse of power that Parliament may not have anticipated.
• Lack of Debate: Laws made through delegated legislation may not involve much public discussion or debate, which could result in decisions that are not in the best interest of the public.

Conclusion

Delegated or subordinate legislation refers to the rules or laws made by authorized individuals or bodies under the framework of an Act of Parliament. While law-making is primarily the responsibility of the legislative body, it can delegate this authority to others through an Enabling Act. This Act outlines the broad guidelines, while the detailed rules are formulated by the delegated authority.

In India, to ensure effective parliamentary control over delegated legislation, it is essential to strengthen the role of parliamentary committees. Additionally, a law similar to the Statutory Instruments Act, which provides uniform standards for the laying and publication of delegated legislation, should be enacted. These committees could be supported by a specialized body to make the oversight of delegated legislation more effective.

Beyond these measures, it is crucial to apply the principles established by the judiciary in alignment with modern needs. Although the Indian Constitution does not explicitly provide for the delegation of legislative power, the judiciary has recognized the necessity of delegated legislation to adapt to changing times. To prevent the misuse of delegated legislative power by the government, India could consider adopting more robust control mechanisms similar to those used in the USA.