Delegated Legislation

Introduction

Delegated legislation means a process where the legislature gives its law-making power to the administrative authority, exercising such power, the admin authority makes laws or an instrument of legislative nature such as rules, notifications, orders, etc. The administrative authority works as a subordinate to the legislature; thus, it is also known as subordinate legislation.

Delegated legislation can also be defined as an instrument of legislative nature made by an authority in the exercise of the power conferred by the legislature. Salmond delegated legislation as which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. For example- under the Environment Protection Act, 1986, the central government is given the power to make rules for effecting this act. Exercising these powers the central government made Environment Protection Rules,1986. This is known as delegated legislation.

Reasons for the growth of delegated legislation

1. Pressure upon a parliamentary time– As there is a bulk of legislative activities, the legislature can’t devote a sufficient amount of time to discuss all the matters in detail, thus the legislature delegates the powers to executives to fill in the details by issuing necessary rules, orders, etc on legislatures behalf.

The court in the case on Avinder Singh v. State of Punjab[1] said that, if 525 parliamentarians are to focus on every minuscule legislative detail leaving nothing to subordinate agencies, the annual output may be unsatisfactory and negligible.

2. Technicality- Sometimes, there may arise some matters on which legislation is required which are technical. The legislature being common, cannot be expected to know the technicalities of each and everything. Thus, the assistance of experts is required. In such a case the legislative power can be conferred on the experts.
3. Flexibility- At the time of passing legislation, foreseeing future contingencies/situations is not possible. And sometimes in the future, certain situations require legislation to be made through amendments. A legislative amendment is a slow process and takes a lot of procedure and time. Thus, this process can be transferred to executives as they can meet the situational requirements speedily.
4. Experiments- Delegated legislation enables the executives to experiment. This method enables rapid utilization of experience and implementation of necessary changes.
5. Emergency- In case of emergencies like pandemics, epidemics, floods, etc, one cannot wait for the legislature to pass legislation. Thus, the executive is given the power to make rules, by-laws, etc as they can speedily do it.

For example- in the covid pandemic mask and sanitizers were declared as essential commodities under the Essential Commodities Act by the administrative wing.

Forms of Delegated Legislation

1. Title-based Legislation- This means classification based on names such as rules, schemes, by-laws, orders, ordinances, etc.

Example- Under the Environment Protection Act, 1986, the central government can make rules for effecting this act.

Example- In the covid pandemic, the government passed an order to include masks and sanitizers as essential commodities under the Essential Commodities Act by the administrative wing.

Example- Mid-day meal schemes, etc.

2. Discretion-based classification- When a certain act is passed by the legislation, the legislature gives power to the executive to bring the particular act into force/operation but by fulfilling certain conditions. These types of legislations are also known as conditional legislation
3.  Authority-based classification- A legislation in which a statute made by the legislature can empower the executive to further delegate the powers conferred by it to a subordinate.
4. Purpose/Nature-based classifications- classified based on the nature of the power given to the executive or extent of the power.

Conditional Legislation

Conditional legislation may be defined as a statute that provides controls but specifies that they are to go in force only when certain conditions are fulfilled. In conditional legislation, the legislature makes the law complete but that law is not brought in force immediately. It is left on the executive to fulfillment of certain conditions to bring in operation.

For example- in the Environment Protect Act, section 1(3) states that the act shall come into force when the central government by giving notification in the official gazette appoints a date for its enforcement or for enforcing different provisions on different dates.

Conditional legislation is classified into 3 categories-

1. When the legislation is complete but leaves its future applicability to executive authority.
2. Where the legislation is enforced but leaves the power to be withdrawn from the operation of the act in the given area or situation to the executive.
3. Gives authority to the administrative wing to decide which group of people should be/should not be given the benefit of the act.

Case laws

Field v. Clark[2]

In this case, the court held that the legislature cannot delegate its law-making power to the executive. It can make a law and delegate a power to determine some facts or state of things upon which the law intends to make. The court also observed that the functions which are given to the executive cannot be stopped/denied as it would lead to the stoppage of the system functions of the government.

The court believed that There are many things on which law depends which cannot be known to the lawmakers and must therefore be subject to inquiry and determination from some authority outside the legislature.

King-Emperor v. Benoari Lal Sharma[3]

In this case, an ordinance was made by the governor-general providing for the setting of special courts in case of emergencies. But the operation of it was left to the provincial government on being satisfied that the emergency had come into existence.

The Privy Council held that it was conditional legislation as the administrative body was given a condition that was required to be fulfilled to exercise the power given to them.

 

Difference between Delegated Legislation and Conditional Legislation

The difference between delegated and conditional legislation was given in the case of Hamdard Dawakhana v. Union of India[4]. The court said that:

Delegated legislation involves the rule-making power to be exercised by the administrative authority. Whereas, in conditional legislation, there is no rule-making power given to the executive. It involves the power to determine when legislation can become effective.

In delegated legislation, the delegate completes the legislation by filling in the details to it within the prescribed limits. On the contrary, in conditional legislation, the legislation is complete. The delegate is given the power to apply the law to an area or to determine the time and manner of carrying it into effect.

 

 

 

 

 

 

[1] AIR 1979 SC 321

[2] 143 U.S. 649 (1892)

[3] (1945) 47 BOMLR 260

[4] 1960 AIR 554