DELIGATED LEGISLATION
MEANING
Delegated legislation is a process by which the executive authority is given powers by primary
legislation to make laws in order to implement and administer the requirements of that primary
legislation. Such law is the law made by a person or body other than the legislature but with the
legislature’s authority.
NEED FOR DELEGATED LEGISLATION
Delegated Legislation is important because of several reasons. They are:
1. Delegated Legislation reduces the burden of already overburdened Legislature by
enabling the executive to make or alter the law under the authority of Legislature.
Thus, this helps the Legislature to concentrate on more important matters and frame
policies regarding it.
2. It allows the law to be made by those who have the required knowledge and
experience. For instance, a local authority can be permitted to enact laws with respect
to their locality taking into account the local needs instead of making law across the
board which may not suit their particular area.
3. The process of delegated legislation also plays a significant role in an emergency
situation since there is no need to wait for particular Act to be passed through
Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting legislation, which makes it
flexible and very useful to law-making. Delegated legislation is, therefore, able to
meet the changing needs of society and also situations which Parliament had not
anticipated when they enacted the Act of Parliament.
NATURE-BASED CLASSIFICATION
Classification of administrative rule-making may also be based on the nature and extent of
delegation. The Committee on Ministers’ powers distinguished two types of parliamentary
delegation:
1. Normal Delegation: There are two types of normal delegation:
A. Positive delegation.-Where the limits are clearly defined in the Parent Act, it is called
positive delegation.
B. Negative delegation.-Where the delegated power does not include power to do certain things,
it is known as negative delegation e.g. power to legislate on matters of policy or power to impose
tax.
2. Exceptional Delegation: Exceptional delegation is also known as Henry VIII clause.
Instances of exceptional delegation may be as follows:
[Link] to legislate on matters of principle.
B. Power to amend Acts of Parliament.
C. Power giving such a wide discretion that it is almost impossible to know the limits.
[Link] to make rules which cannot be challenged in a court of law.
DELEGATED LEGISLATION: POSITION UNDER CONSTITUTION OF INDIA
The Constitution of India gives powers to the Legislature to delegate its functions to other
authorities, to frame the policies to carry out the laws made by it.
In the case of D. S. Gerewal v. State of Punjab[1], the Supreme Court held that Article 312 of the
Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo
observed “There is nothing in the words of Article 312 which takes away the usual power of
delegation, which ordinarily resides in the legislature.
The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean
that there is no scope for delegation in law made under Article312. The England law enables the
Parliament to delegate any amount of powers without any limitation. On the other hand in
America, like India, the Congress can delegate only some of its functions. Thus, it does not have
unlimited or uncontrolled powers. Thus, India allows for delegated legislation but in a defined
and controlled manner with certain restrictions.
Criticism Of Delegated Legislation
Delegated legislation apart from having many advantages is criticized on many grounds-
1. It is argued that delegated legislation enables authorities other than Legislation to
make and amend laws thus resulting in overlapping of functions.
2. It against the spirit of democracy as too much-delegated legislation is made by
unelected people.
3. Delegated legislation subject to less Parliamentary scrutiny than primary legislation.
Parliament, therefore, has a lack of control over delegated legislation, and this can
lead to inconsistencies in laws. Delegated legislation, therefore, has the potential to
be used in ways which Parliament had not anticipated when it conferred the power
through the Act of Parliament.
4. Delegated legislation generally suffers from a lack of publicity. Since the law made
by a statutory authority not notified to the public. On the other hand, the laws of the
Parliament are widely publicised. The reason behind the lack of publicity is the large
extent of legislation that is being delegated. There has also been concern expressed
that too much law is made through delegated legislation.
Conclusion
In the end we can conclude that the delegated legislation is important in the wake of the rise in
the number of legislations and technicalities involved. But at the same time with the rise in
delegated legislation, the need to control it also arises because with the increase in the delegation
of power also increases the chance of the abuse of power. The judicial control apart from the
legislative and procedural control is the way how the delegation of power can be controlled.
Thus, the delegated legislation can be questioned on the grounds of substantive ultra vires and on
the ground of the constitutionality of the parent act and the delegated legislation. The latter can
also be challenged on the ground of its being unreasonable and arbitrary.
