Delegated legislation is one of the most discussed topics in India, specifically related to the Indian Parliament. Not only in India, but the practice is also prevalent worldwide. As a general rule, the legislature has the power to make the laws and the executive is the one to execute them. However, in a welfare state, different organs of the government may take up activities not under its ambit, for the sake of ease of burden on the other organs. In a country like India, it is difficult to frame laws and policies keeping in mind the interests of such a large population. This leaves the legislature with a lot of work, and to look into every matter is not possible every time. As a result, this workload is reduced when the executive carries out functions of the legislature. This is the basic idea behind delegated legislation. Although it may seem beneficial at first sight, it is not easy to define the concept of delegated legislation. Briefly, it has its fair share of advantages and criticisms.
Terminology
As such, the term delegated legislation is not defined anywhere. According to Black’s Law Dictionary, delegation means ‘entrusting a person with the power or empowering him to act on behalf of that person who has given him that power or to act as his agent or representative’. The legislature is responsible for the exercise of legislative power, but when a person who is not a member of the legislature and is generally lower in rank exercises that power, it would be termed as delegated legislation. It simply implies that someone else exercises the powers of the legislature on its behalf, and the legislature itself delegates its powers to that person. Here, the person would be sort of an agent acting on behalf of the legislature. Salmond stated, “Subordinate legislation is that which proceeds from any authority other than the sovereign power”. Delegated legislation can also be put as subordinate legislation, ancillary legislation, administrative or quasi-legislation.
Delegated legislation in India finds its history in the Charter Act of 1833, brought about by the East India Company, wherein the Governor-General in Council, which was an administrative body, assumed the powers of the executive. It would formulate laws and policies that were to be followed by all the citizens irrespective of their nationality. In Queen v. Burah[1], the Privy Council held that the office of the Governor-General in Council was the supreme legislative authority and that it has ample power to transfer certain duties to the provincial executors.
Constitutional Backing
Article 312 of the Indian Constitution does not particularly speak of delegated legislation, but it can be inferred from its language. It gives the Council of States (Rajya Sabha) the power to form an All India Service which will be responsible for carrying out the acts of the legislature. It requires a two-thirds majority of the house.
In D. S. Grewal v. State of Punjab[2], the Supreme Court held, “…and it is not possible to hold that the intention of the Constitution was that these numerous and varied rules should be framed by Parliament itself and that any amendment of these rules which may be required to meet the difficulties of day-to-day administration should also be made by Parliament only with all the attending delay which passing of legislation entails. We are, therefore, of opinion that in the circumstances of Article 312 it could not have been the intention of the Constitution that the numerous and varied provisions that have to be made in order to regulate the recruitment and the conditions of service of all-India services should all be enacted as statute law and nothing should be delegated to the executive authorities. In the circumstances we are of opinion that the words used in Article 312 in the context in which they have been used do not exclude the delegation of power to frame rules for regulation of recruitment and the conditions of service of All India services. We cannot read Article 312 as laying down a mandate prohibiting Parliament from delegating authority to the Central Government to frame rules for the recruitment and the conditions of service of all-India services.”
Importance
Delegated legislation is not a time-consuming process. It reduces the workload of the parliament. Although our Constitution calls for separation of powers, there may come situations of emergency or crises and the executive may be involved in the law-making process to speed things up and to ease the burden of the legislature. In Sukhdev Singh v. Bhagat Ram[3], the Supreme Court stated the importance of delegated legislation. It was of the view that delegated legislation is effective during emergencies and situations where actions need to be taken quickly. It may prove to be useful where delay may cause a significant loss to the country.
Moreover, the executive is a branch which is much more closely linked to the general public in comparison to the legislature, so in certain matters, the executive may be seen as the proper authority to formulate certain laws and policies. Not to forget that delegated legislation yields positive results, and rarely it happens that the executive formulates derogatory laws.
Judicial Control
The authority of delegated legislation cannot be questioned because it receives the support of the Constitution as well as of the legislature. Indeed, the courts of the country may review any law which they may feel is pejorative. In Humdard Dawakhana v. Union of India[4], the Supreme Court held that the Constitution does not bar delegated legislation, but the executive cannot be granted to perform important functions of the legislature. It is the power of the legislature only to lay down the legislative policy.
However, there are only two instances where the courts can question the laws formulated through delegated legislation. If a law made by the executive is ultra vires the act from which it got its authority of formulation, then it can be nullified by the court. It would be improper use of power conferred upon the body. The law should also not be arbitrary or excessive. Secondly, if the law so made is unconstitutional, then of course it will be invalid. The Constitution is the supreme law of the land and anything in its violation can be rendered invalid. More importantly, nothing can be violative of the Fundamental Rights, mentioned in Chapter III of the Constitution.
Apart from these two instances, Indian courts cannot really nullify a law. But every law must be studied with proper comprehension and scrutiny, to examine any latent or otherwise defect.
Criticism
According to Thomas M. Cooley, “Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust”.
The idea of delegated legislation, no matter how positive it looks, has received criticism on various factors. The foremost contention against delegated legislation is that since the legislature and the legislature alone have the authority to formulate laws, no other branch of the government may be empowered to do so. The legislature has a purpose, and if that purpose is taken away, even if minimally, then with time it may so happen that the legislature may run out of power. Since the executive is not formed by an elected group of people, it would be a violation of the principles of democracy, which are so embedded in our country. The people elect the members of the parliament, not of the executive. It should be the parliament that decides the laws for the people.
Furthermore, when a law is formulated through delegated legislation, it is usually not publicised, i.e. the general public is not made aware of it. However, when a bill is passed in the parliament, the public is very much aware of it and shows its assent/dissent accordingly. This is one of the major differences between laws made by the parliament and laws made through delegated legislation. The latter ones are rather imposed on the public. In fact, most of the amendments that take place are through the method of delegated legislation.
Conclusion
Delegated legislation is an important component in the law-making scenario, but it is not given adequate attention. In Avinder Singh v. State of Punjab[5], Justice Krishna Iyer stated, “The law-making sequence leaves much to subordinate legislation which, in practical terms, means surrender to the surrogate, viz., the bureaucracy which occupies commanding heights within the Secretariat. The technocracy and the bureaucracy which mostly draft subordinate legislation are perhaps well-meaning and well-informed… The doctrine of delegation, in its extreme positions, is fraught with democracy by proxy of a coterie, of which the nation, in its naivete, may not be fully cognizant.” Therefore, it is no surprise that the whole method of delegated legislation is so widely practised in our government.
The contemporary situation demands the use of delegated legislation readily. National emergencies like the COVID – 19 pandemic allow for decisions to be taken by authorities best suitable in the situation. The only requirement for delegated legislation is that laws made by authorities which are not the parliament should be checked and regulated, for which we have the judiciary. All in all, the idea seems inevitable for a profound existence of laws.
[1] PC 5 Jun 1978.
[2] 1959 AIR 512.
[3] 1975 AIR SC 1331.
[4] AIR 1960 SC 554.
[5] 1979 AIR 321.
