DELEGATED LEGISLATION

By | March 25, 2017

What is delegated legislation?

Delegated legislation has been defined by: Salmond 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“. In simple terms it means – when the function of legislation is entrusted to organs other than the legislature by the legislature itself the legislation made by such organs is called delegated legislation. Here we may give some instances of delegation viz., the Northern India Canal and Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export & Import Act, Essential Commodities Act, 1955, the Indian Medical Council Act, the Right to Information Act, 2005 etc.

Need for delegated legislation or reasons for the growth of delegated legislation

The causes for the growth of delegated legislation are discussed below:

(a) Pressure upon Parliamentary Time

The legislative activity of the State has increased in response to the increase in its functions and responsibilities.  The legislature is preoccupied with more important policy matters and rarely finds time to discuss matters of detail.  It therefore formulates the legislative policy and gives power to the executive to make subordinate legislation for the purpose of implementing the policy.

(b) Filling in Details of Legislation

The legislature has to make a variety of laws and the details required to be provided in each of these laws require knowledge of matters of technical or local or specialized nature.  The executive in consultation with the experts or with its own experience of local conditions can better improve these.  There is no point in the legislature spending its time over such details and therefore the power to fill them in is often delegated to the executive or local authorities or expert bodies.

(c) The Need for Flexibility

A statutory provision cannot be amended except by an amendment passed in accordance with the legislative procedure.  This process takes time.  It may however be necessary to make changes in the application of a provision in the light of experience.  It is therefore convenient if the matter is left to be provided through subordinate legislation.  Delegated legislation requires less formal procedure and therefore changes can be made in it more easily.

(d) Administration through Administrative Agencies

Modern government is pluralistic and functions through a number of administrative agencies and independent regulatory authorities, which have to regulate and monitor activities in public interest. These agencies such as the Election Commission or the Reserve Bank of India or the Board for Industrial and Financial Reconstruction (BIFR) or the Electricity Commission or the Telecom Regulatory Authority of India (TRAI) etc. have to perform ongoing regulation and control of various activities.  Each of these agencies is required to make rules or regulations in pursuance of its regulatory function.

(e) Meeting Emergency Situations

In times of emergency, the government may have to take quick action.  All its future actions cannot be anticipated in advance and hence provisions cannot be made by the legislature to meet all unforeseeable contingencies. It is safer to empower the executive to lay down rules in accordance with which it would use its emergency power.

Classification of Delegated legislation

Delegated legislation can be classified on the basis of the nature of the power conferred on administrative authorities.

  • Appointment Day Clause: Empowers executive authority to determine the day for the commencement of the Act
  • Skeleton Legislation: Legislature enacts the skeleton and administration has to provide the flesh through subordinate legislation
  • Power of inclusion and exclusion: Application of the Act can be expanded or restricted by making additions or deletions in the schedule through delegated legislation
  • Power of extension and application of existing laws: Some statute confers powers on the Government to adopt and apply laws existing in other states with incidental changes to a new State.
  • Power of suspension: Power delegated to the Government to suspend or to make exemption from all or any of the provisions of the Act
  • Power of modification: Power on the executive to modify the statute itself.
  • Delhi Laws Act case: Power of modification should not be used in such a manner so as to change the essential policy of the Act in question
  • Power to remove difficulties: Nicknamed “Henry VIII Clause”, power to modify a statute may be conferred on the Government by a removal of difficulties clause. The King is regarded popularly as the impersonation of executive autocracy.
  • Power to prescribe punishment: In US, the penalty for violation of rules can be fixed by the legislature and not by the authority. However, in England, the power to impose penalty has been delegated in some statute.
  • Power to impose tax.

Submitted by – Shradha Arora, CNLU Patna

(Editor @ Legal Bites)

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