Delegated legislation: A necessary evil

AGPE THE ROYAL GONDWANA RESEARCH JOURNAL

OF HISTORY, SCIENCE, ECONOMIC, POLITICAL AND SOCIAL SCIENCE
ISSN (E): 2583-1348  A Peer reviewed  Open access & Indexed
Volume 04  Issue 08  August 2023  www.agpegondwanajournal.co.in  Page No. 18-25

DELEGATED LEGISLATION: A NECESSARY EVIL

Dr. Raj Deo Singh
Assistant Professor, Dept. of Law,
K.G.K. (P.G.) CollegeMoradabad, Uttar Pradesh, India


ABSTRACT
Delegated legislation is becoming a necessary evil in modern democratic countries. Due to
the concept of welfare state, there has been a quantitative increase in the function of the
government. In such a situation, it is not possible that he cannot do the work of legislation in all the
points himself. It becomes a compulsion for the government to delegate this power to other organs
of the government. But while doing so it should be kept in mind that the institution to which this
power is being delegated should use it very carefully. There may be no public discussion, no press
criticism and no public opinion on it. The system thus becomes undemocratic giving rise to the
danger that the government may misuse its powers. For this the traditional methods of control
(parliamentary, administrative and judicial) should be further strengthened. Considering the
importance of the subject, there is a need of separate enactment for it. In which clearly such facts
should be included as to which subject can be delegated, which cannot be delegated, under which
condition the delegation should be done.

INTRODUCTION:-
A trend very much in vogue today in all democratic countries is that only a relatively small
part of the total legislative output emanates directly from the legislature. The bulk of legislation is
promulgated by the executive, known as “delegated legislation”. Usually, what happens is that the
legislature enacts a law covering only the general principles and policies relating to the subject
matter in question and confers rule-making power on the government, or on some other
administrative agency. In no democratic country does the legislative monopolise the whole of the
legislative power; it shares the power which the government and other administrative agencies. The
delegated legislation is used in two senses:
(a) The exercise by a subordinate agency of the legislative power delegated to it by the
legislature, or
CORRESPONDING AUTHOR: RESEARCH ARTICLE
Dr. Raj Deo Singh
Assistant Professor, Dept. of Law, K.G.K. (P.G.) CollegeMoradabad, Uttar Pradesh, India
Email: rajdeosinghllm@gmail.com

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 Delegated legislation: A necessary evil
(b) The subsidiary rules themselves which are made by the subordinate agency in pursuance of
the power delegated to it by the legislature.
The term delegated legislation is used here in first sense because lawyers are more interested with
the “technique” rather than the actual rules made. In India, quite often the term employed is
“subordinate legislation”; it conveys the idea that the authority making the legislation is subordinate
to the legislature.
As stated in Halsbary’s Laws of England – “when an instrument of a legislative nature is
made by an authority in exercise of power delegated or conferred by the legislature it is called
“Subordinate Legislation.”
Black’s law dictionary defines delegation as “the act entrusting a person with power or
empowering him to perform on behalf of the person who has provided him that power or to serve as
his agent or representative.”
A simple meaning of the expression delegated legislation may be given as under: When the
function of legislation is entrusted to organs other than the legislature itself, the legislation made by
such organs is called delegated legislation.

CONSTITUTIONALITY OF DELEGATED LEGISLATION-

The fundamental legal question which arises in the study of delegated legislation is whether
a legislature can delegate its law making power to other agencies?

UNITED KINGDOM:-
Parliament is supreme and performs unlimited power. It is free to make or amend any law,
i.e., it may either make a law itself or may authorize an outside agency to do so. Within what limits,
if any, it should delegate powers is a matter to be decided by the legislature itself and the courts
have no say in the matter. The courts cannot question the validity of any act passed by the
Parliament. It has often been suggested that Parliament should not confer power in too broad or
general term, that is should define the limits of the power being delegated or define the norms or
standards in the enabling statutes subject to which the delegated power may have to be exercised so
that the delegate is not left free to use the power as he likes but may be restrained from misapplying
the power. In countries with written constitution, where the legislature is not supreme and possesses
only such powers as are given by the constitution, delegation has been held to be valid (of course,
unless expressly prohibited by the constitution).

U.S.A. :- In the United States the position is substantially different. The U.S. Congress functions
under a written constitution and the courts have power to interpret the constitution and declare a
congressional statute unconstitutional. Under the Constitution of USA, delegated legislation is not
recognized in theory because of two doctrines-

(a) The doctrine of separation of powers- The US constitution is based on the doctrine of
separation of power. By article 1 legislative power is expressly conferred on the congress,

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 Delegated legislation: A necessary evil
and the courts have power to interpret the constitution and declare any statute
unconstitutional if it does not confirm to their views of the constitution.
(b) Delegatus non potest delegare :- A delegate cannot further delegate- besides the doctrine of
separation of powers the US supreme court has also invoked the doctrine of delegation non
potest delegare against delegation by the congress. As the congress gets power from the
people, and is a delegate of the people in the sense, it cannot further delegate its legislative
power to the executive or any other agency.

Delegation in Practice- The congress lays down the general policy and standards that animate the
law, leaving the agency to refine those standards, “fill in the blanks”, or apply the standards to
particular cases.
The congress should not give a blank cheque to the executive to make any rules its likes.
If this is done, it would meant to abdication of powers by the Congress. In the words of Justice
Cardozo- “To uphold the delegation there is need to discover in the terms of the Act a standard
reasonably clear whereby the discretion must be governed. In U.S. Vs. Grimana 220 US 596 the
court held that a complete denial of delegation of legislative power by Congress would be to stop
the wheels of government. In Panama Refining Co. Vs. A.D. Ryan 79 Led 446: 293 US 388
(1934), popularly known as the Hot Oil case the U.S. Supreme Court held that “the congress has
declare no policy, has established no standard, has laid down no rule.” The delegation in favour of
the President was, therefore, impermissible and the Act was unconstitutional.

AUSTRALIA :-
By section 1, 61 and 91 the commonwealth of Australian Constitution Act, 1960 the
legislative, the executive and the judicial powers are vested respectively in the commonwealth
Parliament, the queen, the high court and other federal courts of Australia. Thus, the constitution is
regarded to have been founded upon the principle of separation of functions of Government. The
separation does not, it has been held, prohibit delegation legislative powers to the executive. In
Victorian, etc. Co. & Meakes Vs. Dignan 8 CLR 626 case the question was whether section 3 of
the Transport Workers Act, 198-29 was intra vires the constitution inasmuch as it delegated power
to make regulations which were to have the force of law, notwithstanding anything in any other act.
The high court held the provision valid.

CANADA :-
The first Canadian case on delegation of legislative power is Russel Vs. The Queen 46
CLR 73. In this case the validity of the Canadian Temperance Act was challenged on the ground
that it unconstitutionally delegated legislative power to an external body. The Privy Council held
that the act did not delegate any legislative power, and that what was conditional legislation. In
Hodge Vs. Queen (1882) 7 AC 829 the court reiterated the principle that the legislature was not a
delegate or agent of Imperial Parliament but had, “authority as plenary and as ample within the
limits prescribed by section 92 as the Imperial Parliament in the plentitude of its power proposed
and could bestow.” It was also said that a legislature committing important regulations to agents or
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 Delegated legislation: A necessary evil
delegates did not efface itself since it retained its power intact and could, whenever it pleased,
revoke the power.

POSITION IN INDIA :-
Under the constitution of India, Article 245 and 246 provide that the legislative power
shall be discharged by the parliament and the state legislature. There is nothing in the constitution
whereby it can be inferred that the legislature cannot delegate its legislative power to any one else.
But it does not mean that the power of legislation includes the power of delegation. In the
constitution itself we find several provision where the executive leads, i.e., the president and
governors of the different states have been empowered to make laws under certain conditions. For
instance- where the parliament or state legislatures are not in sessions, during the president‟s rule in
any state the executive has been authorized to make laws for the state. It is clear from these
provision that it was not the intention of the constitution-makers that the legislative functions should
be carried out by the legislatures only. The delegation of legislative power was conceived to be
inevitable and therefore it was not prohibited in the constitution.
Secondly, Article 13(3) (a) of the constitution lays down that “law” includes any
ordinances, order by-law, rule, regulation, notification etc. Which if found in violation of the
fundamental rights, mentioned in the chapter III, would be void. It is well settled that the rules,
regulations, bye-laws etc. are not made by the legislature but by the agencies other than the
legislative, mainly the Executive and Local bodies, under the delegated authority. It these makes
clear that our constitution indirectly envisages the delegated of legislative function the executive to
a limited extent.

REASONS FOR THE GROWTH OF DELEGATED LEGISLATION –

There are some major causes for the growth of delegated legislation such as Pressure upon
Parliamentary time, Technicality of subject matter, To meet unforeseen contingencies,
Expediency and flexibility, To meet emergency etc..

1. Legislation an ever widening fronts of a modern welfare and service state it is not possible
without the technique of delegated legislation. It is true but correct to say that even if today
Parliament sits all the 365 days in a year and all the 24 hours, it may not give that quality
and quantity of law which is required for the proper functioning of a modern government.
Therefore delegation of rule making power is a compulsive necessity. It also given an
advantage to the executive, in the sense that a parliament which an onerous legislative time
may feel tempted to pass Skelton legislation with the details to be provided by making rules
and regulation.
2. Today, Legislation has become highly technical because of the complexities of a modern
government. Therefore it is convenient for the legislature to confine itself to policy
statements only, as the legislators are sometimes innocent of legal and technical skills and
leave the law making sequence to the administrative agencies.

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 Delegated legislation: A necessary evil
3. In some situations it is necessary that the law must not be known to anybody till it comes in
to operation. For example, in case of imposition of restrictions on private ownership, it is
necessary that the law must be kept secret till it comes in to immediate operation, otherwise
people could arrange their property rights in such a manner as to defeat the purpose of the
law. This secrecy could be achieved only through administrative action because the ordinary
legislative process is always very open.
4. Ordinary legislative process suffers from the limitation of lack of viability and
experimentation, a law passed by the Parliament has to be in force till the next session of the
parliament when it can be repealed. Therefore, in situations which require adjustments
frequently and experimentation, administrative rule making is the only answer.
5. In situations where crises legislation is needed to meet emergent situations, administrative
rule making is a necessity because the ordinary law making process is overburdened with
constitutional and administrative technicalities and involves delay.
6. Where government action involves discretion, i.e., expansion of public utility services,
administrative rule-making is the only answer.
7. Today there is growing emergence of the idea of direct participation in the structarisation of
law by those who are supposed to be governed by it because indirect participation through
their elected representatives mere often proves a myth. Therefore, administrative rule
making is a more convenient and effective way and provides for this participation.

Demerits of the growth of Delegated legislation-

There was a time when the growth of delegated legislation was criticized as „undemocratic‟
and extension of despotic powers of administration. Now these ideas have changed, it is considered
as-
(a) Natural reflection of the limits of constitutional law.
(b) Of the changes in the idea and views of government, resulting from changes in political,
social and economic thinking.
(c) Of the changes brought in our lives due to scientific and technological development .

TYPES AND CLASSIFICATION OF DELEGATED LEGISLATION :

RULE:- The general classes act, 1897 defines “Rule” as a law made in exercise of the power
conferred by an enactment. The rules includes regulation also. These rules may be made applicable
to a particular individual or general public. It includes rules of procedure under Atomic Energy
Act,1948 Consumer Protection Act, 1986, Administrative Tribunal Act, 1985 etc. The rules framed
under the act, applicable like the statute itself. The rules prevail over the administrative directions,
notifications, circulars etc. if there is any conflict among them.

REGULATION:- This is an instrument through which decision of the government are made
known to the general public. Regulation are being made by the executive to notify the date of the
Act, application of the act to areas or persons, or exemptions from the act, etc. A regulation is a rule

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 Delegated legislation: A necessary evil
or order prescribed by the superior for the management of some business and implies a rule for
general course of action.

BY-LAWS:- They are created by the local authority which is approved by the Central Government.
There are many reasons for the delegation of the legislature.

SCHEME: - The term refers to a situation where the law authorizes the administrative agency to
lay down a framework within the detailed administration action is to proceed.

DELEGATED LEGISLATION AND COURT’S VIEW:-

R. Vs. Burah (1878) 3 AC 889: (1878) 5 IA 178(PC) is considered to be the leading
authority of the subject. Privy Council held that the Indian Legislature was not an agent or delegate
of the Imperial Parliament and it had plenary powers of legislation as those of the Imperial
Parliament itself. It agreed that that the Governor General–in-Council could not, by legislation,
create a new legislative power in India not created or authorized by the council‟s Act. But in fact, it
was not done. It was only a case of conditional legislation, as the Governor was not authorized to
pass new laws, but merely to extent the provisions of the Act already passed by the competent
legislature upon fulfillment of certain conditions.
In Jatindra Nath Gupta Vs. Province of Bihar AIR 1949 FC 175:FCR 595 Federal
Court held that the power to extend the operation of the act beyond the period mentioned in the act
was a legislative power. Similarly, the power to modify an act of the legislature without specifying
any limitation on such power can also be said to be an essential legislative function and therefore,
could not be delegated.
This judgment had created confusion about the extent of the delegation of legislative
power. Therefore, with a view to get the position of law clarified, the President sought opinion of
the supreme court under article 143 in Delhi Laws Act, 1912, re AIR 1951 SC 332: 1951 SCR
747. It is the leading case as to the needs and limits of delegated legislation. In this case the supreme
court was called upon to give its opinion on the validity of delegatory provisions contained in three
central acts.
The supreme court was called upon to adjudge the validity of this provision. Seven
judges gave seven opinion the limits of delegated legislation. Yet on two points there was unity of
outlook amongst all the opinion.
First- Keeping the exigencies of the modern government in view, Parliament and the
state legislatures in India need to delegate legislative power if they are to be able to face the
multitudinous problems facing the country, for it is neither practicable nor feasible to expect that
each of the legislative bodies could turn out complete and comprehensive legislation on all subjects
sought to be legislated upon.
Second- since the legislatures derive their powers from the written Constitution which
creates them, they could not be allowed the same freedom as the British Parliament in the matter of
the delegation; some limits should be set on their capacity to delegate.

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 Delegated legislation: A necessary evil
The Delhi Laws Act case achieved two ends:-
1. It Legitimized delegation of legislative power by the legislature to administrative agencies;
2. It imposed an outer limits on delegation by the legislature.
After the Delhi Laws Act case Hamdard Dawakhana Vs. Union of India AIR 1960 S.C. 554 was
probably the first case in which a central act was held ultra vires on the ground of excessive
delegation.
In famous Demonetization case Vivek Narayan Sharma Vs. Union Of India JLT
(2023) SCJ Jan-Feb-5 section 26(2) of RBI Act, 1934 was challenged before supreme court on
the basis that section 26(2) contains no policy guidelines on how the centre can exercise its power,
thus it is arbitrary and unconstitutional. Under this section central government is empowered to
notify ceasing a particular denomination of currency as legal tender. Parliament, here, has delegated
the power to alter the nature of legal tender to the central government which the latter exercised by
issuing a gazette notification. The Constitutional bench held that Centre‟s notification dated
November 8, 2016 is valid and satisfies the test of proportionality. Justice B.V. Nagarathna in her
dissenting view held that excessive delegation of power is arbitrary.

GENERAL PRINCIPLES :-
According to various judgment of supreme court following general principles should be apply in
case of delegated legislation-

1. The constitution confers the power and function on the legislature to make laws and these
function cannot be delegated by the legislature.
2. The legislature must retain in own hands the essential legislative function.
3. Once the essential legislative function is performed by the legislature and the policy has
been laid down, it is open to the legislature to delegate his powers for effective, useful and
complete legislation.
4. The legislative policy may be reflected as the legislature thinks fit. It may be both express or
implied.
5. The authority to with delegation is made is also one of the factors to be considered in
determining the validity of such delegation.
6. Safeguards against the abuse of delegated power do not make delegation valid.
7. The delegated legislation must be consistent with the parent Act.
8. Whether the all formalities has fulfilled by legislature the delegation is permissible or not it
is depends upon the facts and circumstances of each case.
9. It is purely courts‟ jurisdiction to hold on a fair, generous and liberal construction of an
impugned statute whether the legislature has exceeded his limits.
10. These principles apply to all forms of delegated legislation.

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 Delegated legislation: A necessary evil
CONCLUSION:-
Many a time, the legislature passes Acts in “skeleton” from containing only the barest of
general principles and thus leaves to the executive the task of not only laying down “details” but
even that of formulating and determining policies and principles. The legislature often uses wide,
subjectively worded provisions, giving power to the delegate to much such rules as appear to it to
be “necessary” or “expedient” for the purpose of the act without laying down any standards to guide
the discretion of the delegate and the delegate gets a blank cheque to do whatever it likes. The
executive becomes powerful as it secures powers to affect the life, liberty and property of
individuals without the democratic restraints of a debate in the legislature as happens when a statute
is enacted through the legislature. Discussion on a bill in the legislature secures publicity; a lot of
discussion takes place on the principles underlying the bill both within and outside the legislative
chamber which can gauge the public mood. Legislation thus keeps harmony with the public
sentiment. But this salient and democratic safeguard is not available in the case of delegated
legislation which is drafted in government chambers by some anonymous civil servant and mostly
promulgated all of a sudden without much publicity or notice. No one may come to know anything
about it until it is notified.
Therefore the basic problem in the area of delegated legislation is that of devising
suitable controls and safeguards so that advantages of the technique of delegated legislation may be
available, while the dangers and risk of abuse inherent therein may be minimized. The focus of the
inquiry is thus shifted from the question of desirability of delegated not whether there should be
delegated legislation, but subject to what safeguards it should be resorted to.

REFERENCES
1. M.P. Jain & S.P. Jain- Principles of administrative Law(1999) IVth Edition
Wadhwa and Company Nagpur
2. Takker C.K.- Administrative Law (2012) IInd Edition Eastern Book Company Lucknow
3. Upadhaya J.J.R.- Administrative Law (2004) Vth Edition Central Law Agency Allahabad
4. Mohan T. Michael – Administrative Law (2001) IIIrd Edition Old Baily Press
5. Kesary U.P.D. – Administrative Law (2003) 14th Edition Central Law Publication
6. Pandey J.N. – Constitutional Law of India (2019) Central Law agency
7. Judgment and Law Today (Allahabad)-Jan-Feb 2023
8. www.drishtiias.com

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