All about What is mean by delegated legislation?
Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation or subsidiary 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.]
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 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.
- Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority
- Where Acts are made by Parliament, a Principal Act may make provision for Subsidiary Legislation to be made, and will specify who has the power to do so under that Act
- Delegated Legislation can only exist in relation to an enabling or parent Act
- Delegated Legislation contains the many administrative details necessary to ensure that the provisions of the Act will operate successfully. It may be administered by Government Departments, Local Councils or Courts
- Regulations and Statutory Rules are the most common forms of Delegated Legislation. They are made by the Executive or a Minister and apply to the general population. By-laws, and sometimes Ordinances, are made by a Local Government Authority and apply to the people who live in that area. Rules commonly describe the procedure to be followed in Courts.
Need For Delegated Legislation
The process of delegated legislation enables the Government to make a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to modify or alter sanctions under a given statute or make technical changes relating to law. Delegated legislation plays a very important role in the process of making of law as there is more delegated legislation each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.
Delegated Legislation is important because of the following reasons.-
- Delegated Legislation reduces the burden of already overburdened Legislature by enabling the executive to make or alter the law under the authority of the Legislature. Thus, this helps the Legislature to concentrate on more important matters and frame policies regarding them.
- 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.
- The process of delegated legislation also plays a significant role in an emergency situation since there is no need to wait for a particular Act to be passed through Parliament to resolve a particular situation.
- 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 that Parliament had not anticipated when they enacted the Act of Parliament.
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, 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 Article 312…. The England law enables the Parliament to delegate any amount of powers without any limitation. On the other hand in America, like India, 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
- It is argued that delegated legislation enables authorities other than Legislation to make and amend laws thus resulting in overlapping of functions.
- It against the spirit of democracy as too much-delegated legislation is made by unelected people.
- 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 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.
- 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.