Delegated Legislation

With the growth of administrative process in the 20

th
century, delegated legislation has
assumed tremendous proportions and importance. Today the bulk of the law which governs
people comes not from the legislature but from the chambers of the executive. The fact is that
the direct legislation of Parliament is not complete, unless it is read with the help of rules and
regulations framed thereunder; otherwise by itself it becomes misleading.
Delegated legislation refers to all law-making which takes place outside the legislature and is
generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications,
etc. In other words when an instrument of legislative nature is made by an authority in exercise
of power delegated or conferred by the legislature it is called delegated legislation. Salmond
defines delegated legislation as that 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. The term delegated legislation may be used in two senses: it
may mean (i) exercise of law-making power by the administrative authority delegated to it by
the legislature, or (ii) the actual exercise of law-making power itself in the form of rules and
regulations, etc.
Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by
Parliament, delegated legislation also came to be made by an authority to which the power was
delegated by the Parliament. The modern trend is that Parliament passes only a skeleton
legislation. The basis of need matrix of delegated legislation lies in the fact that the
complexities of modern administration are so baffling and intricate, and bristle with details,
urgencies , difficulties and need for flexibility that our massive legislatures may not get off to a
start if they must directly and comprehensively handle legislative business. Therefore, the
delegation of some part of the legislative power becomes a compulsive necessity for viability. If
522-odd parliamentarians are to focus on every minuscule of legislative detail leaving nothing
to subordinate agencies the annual output may be both unsatisfactory and negligible.
Growth of Delegated Legislation
1. Legislation on ever-widening fronts of a modern welfare and service State is not possible
without the technique of delegation. It is 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 quantity and
quality 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 gives an
advantage to the executive, in the sense that a Parliament with a onerous legislative
time schedule may feel tempted to pass skeleton legislations with the details to be
provided by the making of rules and regulations
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 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.
3. Ordinary legislative process suffers from the limitation of lack of viability and
experimentation. A law passed by Parliament has to be in force till the next session of
Parliament when it can be repealed. Therefore, in situations which require adjustments
frequently and experimentation, delegated legislation is the only answer.
4. In situations where crisis 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 rule-making is the only answer.
5. In some situations it is necessary that the law must not be known to anybody till it
comes into 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 into immediate
operation; otherwise people could arrange their property rights in such a manner as to
defeat the purpose of the law. This secrecy can be achieved only through administrative
action because the ordinary legislative process is always open.
6. Where government action involves discretion, i.e. expansion of public utility services,
administrative rule-making is the only valid proposition.
7. Today there is a growing emergence of the idea of direct participation in the
structurisation of law by those who are supposed to be governed by it because indirect
participation through their elected representative more often proves a myth. Therefore,
delegated legislation is a more convenient and effective way and provides for this
participation.
One may go on multiplying the factors responsible for the growth of delegated legislation, yet
the list may not be exhaustive. It will suffice to say that the technique of delegated legislation is
now regarded as useful, inevitable and indispensable.

Constitutionality of Delegated Legislation
The term constitutionality of delegated legislation means the permissible limits of the
Constitution of any country within which the legislature, which as the sole repository of law-
making power, can validly delegate rule-making power to other administrative agencies. Today
the necessity to aid the transition from laissez-faire to a welfare and service State has led to the
tremendous expansion of government authority. The new role of the State can be fulfilled only
through the use of greater power in the hands of the government to enable it to deal with the
problems of social and economic reconstruction has been accomplished through the technique
of delegation of legislative power to it. This delegation of legislative power raises a natural
question of its constitutionality.
The decision in Jatindra Nath Case in 1949 created doubts about the limits of delegation of
legislative powers. Therefore, in order to clarify the position of law for the future guidance of
the legislature in matters of delegation of legislative functions, the President of India sought the
opinion of the Court under Article 143 on Section 7 of the Delhi Laws Act, 1912.
Section 7 of the Delhi Laws Act, 1912 delegated to the provincial government the power to
extend to Delhi area with such restriction and modification any law in force in any part of
British India. In re Delhi Laws Act is said to be the Bible of delegated legislation. Seven judges
hard the case and produced seven separate judgments. The case was argued from two extreme
positions. Mr. M.C. Setalvad argued that the power of the legislation carries with it the power
to delegate and unless the legislature has completely abdicated or effaced itself, there is no
restriction on delegation of legislative power. The learned Counsel built his arguments on the
theory of separation of powers and delegates non potest delegare and tried to prove before the
court that there is an implied prohibition against delegation of legislative powers. The Supreme
Court held:
(i) Doctrine of Separation of powers is not a part of the Indian Constitution.
(ii) Indian Parliament was never considered an agent of anybody and therefore the
doctrine of delegates non potest delegare has no application.
(iii) Parliament cannot abdicate or efface itself by creating a parallel legislative body.
(iv) Power of delegation is ancillary to the power of the legislation.
(v) The limitation upon delegation of power is that the legislature cannot part with its
essential legislative power that has been expressly vested in it by the Constitution.
Essential legislative power means laying down the policy of the law and enacting
that policy into a binding rule of conduct.
Three common points were given in all seven judgments:
(i) That the legislature cannot give the quantity and quality of law which is required for
the functioning of a modern State, hence delegation is a necessity;
(ii) That in view of a written Constitution the power of delegation cannot be unlimited;
and
(iii) That the power to repeal a law or to modify legislative policy cannot be delegated
because these are essential legislative functions which cannot be delegated.
The Supreme Court has now made it abundantly clear that the power of delegation is a
constituent element of legislative power as a whole under Article 245 of the Constitution.