(Online Course) GS Concepts : Indian Polity – Delegated Legislation

Subject : General Studies Concepts

Chapter : Indian Polity

Topic: Delegated Legislation

Question : What is delegated Legislation and why it is
necessary?

Answer : It is also called subordinate, ancillary, delegated,
administrative, secondary or Quasi-legislation. In modern times, it is not
always possible for the legislatures to make laws providing every detail. In
view of newer areas emerging, law-making today has become not only time
consuming but also an increasingly complex and technical affair.

Legislature can lay down the policy and purpose of the
legislation and leave it to the executive, experts and technocrats to provide
for working details within the framework of the enactment by way of rules,
regulations, bye-laws or other statutory instruments.

Provisions made for delegated legislation aim to obtain
flexibility, elasticity, speed, and opportunity for experimentation. Emergence
of modern welfare State and the complexity of law making arc the primary causes
for the delegated legislation. Subordinate legislation contains details
necessary to ensure that the Act will operate successfully.

Subordinate ness’ in subordinate legislation has two
dimensions:

  • Executive which is subordinate to the legislature and

  • nature of the legislation itself.

Delegated legislation is ancillary and cannot replace or
modify the parent law nor can it lay down details which are contradictory to
substantive law. If subordinate legislation tends to replace or modify the
provisions of the basic law to attempts to lay down new law, it is struck down
as ultra vires.

Factors Responsible for the Growth of Delegated Legislation

a. In India, legislature meets for about 100 days in a year.
There is pressure on its time. Therefore, it legislates on the broad principles
and leaves marginal and minor details- essentially operational- to the Executive
b. Legislation is increasingly becoming technical like intellectual Property
Law, biotechnology, genetically modified organisms, tax laws etc. Parliament is
not expected to have knowledge over these matters
c. Democratisation of rule-making process by providing for consultation With
affected interests”.
d. Further, socio-economic schemes being experimental in the initial stages,
practical difficulties cannot be foreseen by the broad law. For example MGNREGA.
e. It can help in adaptability of the law for future conditions without formal
legislative amendments.

Most of the enactments provide for the power for making
rules, regulations, bye-laws or other statutory instruments which are exercised
by the specified subordinate authrorities.

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  • Orders are usually made by Ministers. An order is an
    exercise of executive powers, (or example to create or dissolve a public
    body Regulations are also usually made by Ministers. Rules set out
    procedures, for example rules governing court procedures, or the way in
    which the government office deals with applications. Rules may be made by
    Ministers or, if specified in the parent Act, a senior official. Directions
    are a means by which

Ministers give legally binding instructions to a public body
about the way it exercises its functions

  • By-laws are laws of limited application (usually
    restricted to certain places) made by local authorities.

Question : Give an account of the controls over delegated
legislation?

Ans. Limitations on subordinate legislation are that it can
not impose any taxation; bar judicial review; can not grant retrospective
application; can not authorize expenditure from the Consolidated Fund of India
and public revenues.

In order to see that these limitations are not transgressed,
there arc judicial as well as legislative controls.

Judicial control over delegated legislation is on the basis
of two grounds

  • Substantive ultravires

  • Procedural ultravires

Substantive ultravires is where the delegating statute itself
is unconstitutional for example being violative of a fundamental right.
Sometimes, the Parliamentary Act may be constitutional but the subordinate
legislation may be unconstitutional as it has overstepped the jurisdiction
granted to it by the parent Act.

Procedural Ultravires

Where the executive authority does not comply with the rules
for example ‘previous publication’ or laying die rules made before parliament
etc.
Also, if the state Government is required to make rules with the concurrence in
the Central Government, if it does not do so, it is ultra vires procedurally.

Control of Legislature on Delegated Legislation

While subordinate legislation is unavoidable, it is equally
important to see how it can be reconciled with the democratic principles or
parliamentary control. Legislation is an inherent and inalienable right of
Parliament and it has to be seen that this power is not usurped nor transgressed
under the guise of what is called subordinate legislation.

Question : Give an account of the Committee on Subordinate
Legislation?

Ans. Amongst the mechanisms evolved by the legislature to
exercise control over the delegated legislation, the most important is the
constitution of the Committee on Subordinate Legislation.
Lok Sabha and Rajya Sabha committees on Sub-ordinate Legislation function as the
watchdog committees over administrative legislation.
The Committee keeps a watch on the executive so that it does not exercise
arbitrary unguided and unspei1ied discretion under any rule. The Committee seeks
to ensure that the jurisdiction of the courts is not compromised by the
application of rules and regulations and that no fees are levied which are not
duly authorized by law. The Committee insists that whenever discretionary powers
have been conferred on an authority, guidelines for the exercise of those powers
should be laid down in the rules. Where the rules seek to arm the authorities
with powers which are of a substantive character the committee makes sure that
such powers originate from the statute rather than from subordinate legislation.

Functions of the Committee on Subordinate Legislation of the
Indian Parliament are very comprehensive as seen under.

It scrutinizes each rule, regulation, bye-law, scheme or
other statutory instrument (referred to as the ‘order’) to consider:

  • whether the order is in accord with the provisions of the
    Constitution or the Act based on which it is made:

  • whether the order contains matter which in the opinion of
    the Committee should more properly be dealt within an Act of Parliament;

  • whether the order contains imposition of taxation;

  • whether the order directly or indirectly bars the
    jurisdiction of the court:

  • whether the order gives retrospective effect to any of
    the provisions in respect of which the Constitution or the Act does not
    expressly give any such power;

  • whether the order involves expenditure from the
    Consolidated Fund of India or the public revenues;

  • whether the order appears to make Some unusual or
    unexpected use of the powers conferred by the Constitution or the Act
    pursuant to which it is made;

  • whether there appears to have been unjustiliable delay in
    its publication or laying the order before Parliament

In case any order is found not to be in accord with the
provisions of the Constitution or of the Act under which it is made the
Committee recommends that the respective rules and regulations be suitably
amended.

Question : Briefly discuss the advantages and disadvantages
of delegated legislation?

Ans. Delegated legislation has a number of benefits
Firstly, it saves time of Parliamentary so that the august body can focus more
on the broader policy aspects.
Secondly, it enables technical matters to be addressed by experts
professionally: detail of a public Sector pension scheme, precise design of
traffic signs etc.
Delegating legislation allows law to be made more quickly than parliament, which
is vital for times of emergency. Parliament takes longer as it does not sit all
the time and its procedures is generally complex due to the several stages each
Bill has to pass through.
Delegated legislation can also be amended or revoked relatively easily so that
the law can be kept up to date and so that the law can meet future needs that
arise such as areas concerning welfare benefits, illustrating a great deal of
flexibility in the system.
Besides, delegated legislation is useful for a range of purposes: fees payable
for a government service; setting the date an Act of Parliament will come into
force and other similar details which require administrative discretion.

Thus, delegated legislation makes the law apply flexibly to
dynamically changing circumstances.

Criticism

The criticism is that delegated legislation erodes
parliamentary authority as it is law made by the executive.
Also, it may potentially be used by the Government in ways which Parliament has
not intended when it conferred the power. This is particularly the case where an
Act empowers Ministers to use delegated legislation to amend mother laws.
Delegated legislation may also be abused to remove controversial matters (for
example, immigration rules) from the purview of Parliament and putting them
under the control of the Government.
However, to minimise any risk that delegating powers to the executive might
undermine the authority of Parliament, such powers are normally only delegated
to authorities directly accountable to Parliament.
In order in understand how delegated legislation actually fits into an Act of
the Parliament, the following illustration will help.

National Investigation Agency Bill 2008 and Delegated
Legislation

Memorandum regarding delegated legislation attached to the
Bill to set up the National Investigation Agency Bill 2008 that was passed by
the Parliament in December 2008.

  1. Clause 5 of the Bill confers power upon the Central
    Government to prescribe rules to provide the manner in which the National
    Investigation Agency is to he constituted and the conditions of the service
    of the person employed in the Agency.

  2. Clause 23 of the Bill confers power on the High Court to
    make rules relating to the Special Courts falling within its jurisdiction
    for the purposes of this Act.

  3. Clause 24 of the Bill confers power on the Central
    Government to make rules for carrying Out-the provisions of this Act.

  4. The rules made by the central Government are required to
    be-laid before each house of the Parliament.

  5. The matters in respect of which the rules are to be made
    by the Central Government and High Court arc matters of administrative
    details and it is not possible to provide for them in the Bill itself. The
    delegation oflegislative power is therefore of a normal character.

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