A brief about Delegated Legislation in India
Delegated legislation is one of the most contradictory issues in modern day democracy. Indian democracy totally depends on its three pillars i.e. legislature, executive and judiciary. Although press is also regarded as fourth pillar of democracy. Each of the pillars has to perform their own functions assigned by the constitution. The Constitution of India empowers Legislature to make laws for the nation. As India is a welfare state, so practically this is not possible for this first pillar of democracy to perform all the functions assigned. Here comes the role of delegated legislation in the arena. It is an essential component where executive has to perform certain functions which are supposed to be performed by Legislature. This is what known as delegated legislation. This is also known by different names such as, ‘Secondary legislation’ or ‘Subordinate Legislation’. The act which enables the executive to make laws/legislate is known as ‘Enabling Statute’ or ‘Parent Act’.
Delegated/Secondary/Subordinate/Subsidiary legislation refers to any laws made by an executive authority within the powers allotted by legislative authority. In short it refers to law made by any person or body other than legislature but with the consent of legislature authority. According to Black’s Law Dictionary ‘Delegation’ means an “act of entrusting a person with a power or empowering him on behalf of that person who has given him that power or to act as his agent or representative”. Delegated legislation means exercising of legislative power by person who is inferior in position in comparison to legislature i.e., subordinate to legislature. An act of the parliament broadly outlines the boundary within which executive can stretch legs in forming their legislation known as Delegated legislation. Such act which outlines the boundary is called as Parent Act.
A brief about Historical Background
The history of Delegated legislation in India starts from the advent of English people and their struggle to hold political power in the sub continent in the early 19th Century. Charter act of 1833 gave hand full of administrative powers exclusively to Governor-General Council. He was empowered to make laws for revocation or modification of any existing laws.
As we know that Privy Council was the highest court of appeal for all constitutional matters till 1949. R Vs Birah was an important case in which question of delegated legislation came before the council. The facts of the case are Indian legislature passed an act in the year 1869. That act removed Garo Hills from the jurisdiction of Bengal
(Both Criminal and civil). Those powers were vested to an officer appointed by legislative governor of Bengal. The Governor was also given a power under section 9 of the act that he can further extend any provision of the act to Khasi and Jaintia Hills too. Then the governor with a short notice extended all the provisions of that act to these two hills. Now here comes the twist a Birah was under trial for murder and the commissioner of Khasi and Jaintia hills gave a death sentence. When the matter came to Calcutta High Court, the honorable court declared section 9 of the act unconstitutional and said that the British Parliament has delegated its power to the India Legislature and a delegated body cannot delegate its power to others. Where the matter came before Privy Council the council gave the opposite view and hence reversed the decision of the Calcutta High Court on the grounds that the delegation is just a conditional one.
Reasons for Delegated Legislation
In this modern era, delegated legislation has become one of the most important legislation. The reasons for growth of delegated legislation are many in numbers. Some of them are as follows:
• Time: Parliament is not only concerned with the work of legislation. It needs to see other matters too such as foreign policies, political issues and many more. So practically it has no time to make and enact each social legislation. Generally, Parliament draws a border lines of rules and regulations within which departments are left to legislate themselves.
• Technicality: With every upcoming day, society is developing at a greater pace and with the development comes greater technicality. As we know that legislators may not know each technicality and the discussions which they will make might seem useless. So to avoid all these things, after laying down the boundaries of the rules and guidelines other bodies are given power to fill the remaining details.
• Emergency: During abnormal situations such as emergency etc. The decisions which must be taken should be quick in nature and also confidential. Practically it is not possible to pass a entire bill from the parliament during that high point of time. In short parliament is not at all enough to serve these all issues in a quick manner.
• Flexibility: It is very necessary for the act to adapt to future situations and should be flexible in nature. These delegated legislations can easily be adapted in any situations in a quite flexible pace.
• Local matters: There are certain legislations which do not concern to all the places or public. Some are specifically meant for particular region, persons, profession, etc. The legislations which need to be made on these specific circles require consultation of these specific groups of people. So certain departments are given powers regarding legislations for their own matters.
• Experimentation: It’s all because experiments we get good results. Certain acts before coming into force by the parliament come into operation in particular locality. For all these ministers are given power to do so.
• Other Reasons: In addition to the above-mentioned reasons there are certain others too which led to the growth of delegated legislation. As the world is totally in the changing state and the concept of welfare state is emerging at a very greater pace, close link between legislature and executive etc. These all things led cabinet exercising vast amount of power.
In our entire constitution we do not come through the word Delegated Legislation. But having a close look in the article 312 of the Constitution which empowers Rajya Sabha to establish a new branch of all India services if passed with two-third majority. Further interpretation of this article will say that obviously that some legislative powers will be given to the recruiters of All India Services. In the whole holy book there is no where mention that legislature cannot delegate its power to anyone else.
There are certain articles in the constitution which empowers the executive heads to make certain laws during abnormal situations. 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 position of India is totally different from the one in Britain. In India there is although no prohibition on delegation but delegation should be done in the manner that the basic features of legislation are not delegated. In short essential legislative functions cannot be delegated at any cost. Again the question arises what are essential functions? We cannot find answer of this question in the constitution. The question is to be entertained by the Court. According to various case laws decided by the court it has become very clear that what can be delegated and what cannot be delegated. Anything which does not form the essential legislative functions can be delegated.
As we know that Legislation is the work of legislature, but sometimes legislature delegates its law making power to the other authorities using parent act as the medium. This all happens because of increasing workloads on Legislature. In a vast country like India where democracy is the essence and diversity is the soul this type of legislation becomes need in spite of having some drawbacks.
It has been already seen that Judiciary has played a very important role in properly channelizing this Sub ordinate legislation.
Author: RISHIKA VERMA,
Amity University Madhya Pradesh