- Definition of delegated legislation
- Reasons for the growth of delegated legislation
- Pressure upon parliamentary time
- Confidential matters
- The complexity of modern administration
- Classification of delegated legislation
- Title-based classification
- Discretion-based classification
- Purpose-based classification
- Authority-based classification (sub-delegation)
- Nature-based classification (exceptional delegation)
- Normal delegation
- Exceptional delegation.
- Constitutionality of delegated legislation
- Separation of powers
- Delegatus non potest delagare
- Case laws
The prevention of exploitation and corruption comes about when the three arms of government work independently and carry out their functions separately as the doctrine of separation states. The legislature makes the law and the executive administers it in turn. However, the authority of the legislature remains to be executed independently by the legislator.
Things began to take a turn in the 20th century when the administrative authorities began to gain the power to make rules. This is called delegation legislation. Since the greatest formulation of law that rules over the people originates from the administrators and not the legislature, delegation legislation has gained more importance.
Direct legislation of parliament becomes complete when it is sighted by the assistance of the frame of rules and regulations. The executive now gains the mandate to add on to the laws that the legislature made.
The broad use of the delegated legislation in the modern era which has seen to it that every law that the legislature passes grants some power of legislation to the executive is the ultimate outcome. In essence, the legislature creates the law and the executive breathes life into it.
The parliament of England makes the law, but in essence, it is the government that creates the law which is under the control of parliament. In The U.S.A., practically the executive has been granted legislative powers even through the doctrine of delegation legislation is not accepted theoretically. 300 statutes were put in place in India from 1973 to 1977 during the reign if Prime Minister Mrs. Indira Gandhi. But the actual number of statutes were more than 25000.
Definition of Delegated Legislation-
It is not easy to get the exact definition of ‘delegated legislation.’ Though simply, delegated legislation is the making of laws outside the legislature. It is mostly brought out as rules, regulations, orders, byelaws, directions, schemes, or notifications.
When an authority practicing power given by the legislature makes a tool of a legislative kind, it is known as delegated legislation or subordinate legislation.
According to Salmond, delegation legislation is the legislation that comes from any form of authority apart from the sovereign power and depends on a supreme authority for the continuance of its existence.
M.P. Jain says that that delegation legislation is applied in two aspects:
- It might be defined as the practice of an agency subordinate to the legislature that is given by the legislature.
- The rules that arise from the subordinate authority that pursues power granted to it by the legislature.
The first part simply means that the body that makes up the legislation is under the legislature. The powers of the legislature are executed by an authority that is not the legislature but with the use of powers granted to them by the legislature.
The second part delegation legislation means every rule, regulation, byelaw, orders and so forth.
Reasons for growth of delegation legislation-
A number of reasons have contributed to the fast growth of delegated legislation in all democratic states of today. Due to the great change in the kind of roles to be played by the state, the responsibilities of the state have also increased.
These are the reasons that have contributed to the growth of delegated legislation:
Pressure upon parliamentary time
The legislature is not able to offer enough time to every matter in detail because of the great amount of legislation brought about by the increase in the responsibilities of the state. In that case, the legislature passed a blueprint of the legislation that carries the general policy and gives the executive power to fill up the details.
This is how the executive gives life by making the required rules, regulations, bye-laws and so forth. Delegated legislation has risen up greatly due to the necessities of the modern state and more especially the social and economic reforms.
This brings about a credible fear that the bureaucracy is what is ruling among the people. For instance, 302 laws were executed in India from 1973 to 1977 which is not exactly the case since the actual number was 25, 414.
The annual outcome would be dissatisfying and negligible if parliamentarians would leave nothing to legislative agencies such as when they endeavor to focus on every single minute of detail of any law.
It has been noted by Justice Krishna Iyer in Avinder Signh v. State of Punjab, AIR 1979 SC 321 that making of laws is not at all perfect and refined in every detail. Legislation will be made easier once that is understood.
The complex nature of the modern government has legislation to become very technical. When the legislature sticks to policy statements alone, things can be made convenient and the administrative agencies will have the sequence of lawmaking handed over to them. The consultation of experts is required in times when the legislation has become technical.
High technical matters cannot be dealt with members of parliament even though they are politicians. Therefore, legislative power may be granted to experts for them to handle the technical issues. Some of the examples of those technicalities are legislative matters concerning atomic and nuclear energy, nuclear energy, drugs among others.
The proper working of the modern government that definitely needs good quantity and quality of the law may not be given by parliament no matter how long the attention to it. It, therefore, makes it a compulsory necessity to legislate rulemaking.
It is known that parliament does not work full time. All the alternatives may not be seen during the passing of any legislative executions. So the executive needs to be given power in order for it to cater for contingencies that are not expected. The delegated legislation gives a chance for quick amendments since parliament has a tendency to delay.
The lack of validity and experimentation is a disadvantage legislative processes face. However, the delegated legislation gives the executive an opportunity to experiment. The method allows the quick use of the experience and enacting the required changes when applying the provision is the presence of the experience. The rules and regulations can be implemented if they turn out to be satisfactory. In the same way, if they are found to have a defect, the defect can be sorted out on the spot. This mode, therefore, gives the allowance of a quick use of experience and the implementation of the required adjustments in the presence of the experience. For instance, an experiment may be done in road traffic and during the application process, the required changes can be made.
Emergency calls for quick reactions. It may occur during war, insurrection, epidemics, floods, economic depression and everything else similar. The legislative process does not have whatever it takes to offer immediate solutions in such situations. This makes it necessary for the executive to have the power that may be executed immediately.
The best solution, in this case, is delegated legislation. In that case, to cate for emergent situations, the making of an administrative rule is required since the ordinary lawmaking process is excessively burned the technicalities of the constitution and administration which brings about delay.
Some situations call for the fact that nobody should know the law until it is operational. Some of those matters include rationing schemes, import duty impositions or exchange control. People could plan their property rights in a manner that will win over the intentions of the law when impositions of restriction on private ownership are publicised before it has been made operational.
The privacy of this kind can be attained only through administrative actions since the common legislative process is ever open.
The complexity of modern administration
The complexity of modern administration has become undoubtable. It continues to take up more responsibility when upraising the welfare of citizens such as looking after their health, education and employment, regulating trade, the industry and commerce along with the provision of other services. Therefore, the complex nature of the modern state and the extension of the work of the state in socio-economic areas have made it of necessity to resolve to other methods of legislation and grant more powers to agencies in the required times.
It is of importance that a lot of powers be given to the administration in order for it to activate socio-economic policies for instant actions to be taken. The objective may not be achieved when it has been resolved to have the traditional legislative process.
Classification of delegated legislation
The term ‘statutory rules and orders’ is what expresses delegated legislation or rather, administrative rulemaking. The classification is not to the latter as it appears in other forms, however. Forms like regulation, bye-laws, notifications, directions, and scheme.
Delegated legislation may adopt several forms. The forms may be normal or exceptional, positive or negative and so forth.
Delegated legislation is classified based of the principles that follow:
The forms that delegated legislation may take are rules, regulations, bye-laws, notifications etc.
The executive may receive a conferred discretion in order to make the Act operational upon meeting particular conditions. Such a legislation is termed as ‘conditional’ or ‘contingent’ legislation.
The purpose has its basis on nature and the level of power granted and the purposes to which those powers can be practiced. That way, the executive has the chance to be empowered to have a specific day to enforce the Act, supply the details, extend what the Act provides to other sectors, include or exclude the workings of the Act to particular territories, individuals, industries, commodities to briefly halt etc. This administrative rule making classification makes use of the consideration of delegated legislation according to the various purposes it is supposed to serve.
Authority-based classification (sub-delegation)
The basis of this classification is the place of authority that makes the rules. The authority that makes rules may either delegate to itself or to a subordinate authority which is more power to give rules. The practice of rulemaking power is called sub-delegated legislation. No power can be delegated by the rulemaking authority since it does not have the power to do so with the exception that the power of delegation is present in an enabling Act.
Nature-based classification (exceptional delegation.)
Parliamentary delegation was categorized into two by the Committee on Ministers’ Powers.
- Normal delegation
- Positive: Where the boundaries of the delegation are clearly elaborated in the enabling act.
- Negative: Where power delegated does not incorporate the authority to undertake some actions such as legislate on issues of policy.
- Exceptional delegation.
Such instances may be:
- The authority to legislate on issue of principle.
- The authority to amend the Acts of parliament.
- The authority to give a broad discretion that is nearly impossible to establish the limits.
- The authority to make rules without being opposed in a court of law.
Constitutionality of delegated legislation
Constitutionality of administrative rulemaking is basically the limits that are permissible of the Constitution of a country within which the legislature can with all rights delegate rule-making power to other agencies of administration. The aim of extending the power of the government is to give it the ability to handle socio-economic problems.
The parliament of England is all powerful and can only execute laws. It has the advantage of a broad legislative power on the executive and like any other country, their parliament did not have the time to handle diverse matters in detail. What forced the parliament to delegate its power to the government are issues such as complexity, technicality, expediency, and emergency.
The sovereignty of parliament means that there are principles to which the exercising of delegation must align itself with. There was a great increase in delegated legislation in the period of the two World Wars. The parliament was forced to delegate broad lawmaking power in regards to the government in the 20th century.
When issues were raised in opposition to the delegated legislation and its growth, it was put on the shoulders of a Committee on Ministers’ Power in 1929. In 1932, the Committee handed over its report stating that the system of delegated legislation is legal and desirable constitutionally for particular purposes with particular limits and under particular safeguards.
In the USA, delegated legislation is not allowed theoretically in the constitution because of two reasons:
- Separation of powers
The separation of powers is adopted in America. In accordance to Art 1. 1 of the USA constitution the power to legislate is strictly for the Congress. The Congress cannot grant legislative power to the President. This is a concept that is recognized everywhere for the purpose of the integrity and maintains the Government system.
- Delegatus non potest delegare-
This doctrine states that someone who has been delegated cannot be delegated again. This is to say that since the Congress acquires its power from the people and is the people’s delegate, it cannot delegate its legislative power again to the executive or another agency.
It is however allowed that a firm application of the doctrine of separation of powers is not one to be desired and non-practicable in the sight of the new demand on the executive. The workings of the government had become numerous and it was the process of enacting all the law to the core was impossible for the Congress. The Supreme Court of USA is also adopting a liberal angle.
Sukhdev Singh v. Bhagat Ram, 1975
As ruled by the Supreme Court, delegation legislation is the only viable remedy during emergencies and when there is a need for quick reactions.
Hemdard Dawakhana v. union of India, AIR 1960 SC 554
The Supreme Court ruled that the Constitution has not barred the delegation of legislative power by the legislature to the executive in particular. It is however a null matter that the executive cannot be granted important legislative functions by the legislature. The legislature itself has the power to lay down legislative policy. Entrusting that authority to the executive will only be like creating another legislature.
Delegated legislation is the legislation that proceeds from another authority that is not of ultimate power. Numerous factors stand as the reason for the quick growth of delegated legislation is every democratic state of today. Delegated legislation has also become very important and unavoidable. ‘Statutory rules and orders’ is the term that expresses delegated legislation in India. It is also important to note that basic functions of the legislation cannot be delegated to the executive by the legislature.