Definition:
Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting
another with authority or empowering another to act as an agent or
representative’. E.g. Delegation of Contractual Duties.
‘Subordinate
Legislation’ has been defined as:
“Legislation
that derives from any authority other than the Sovereign Power in a state and
that depends for its continued existence and validity on some superior or
supreme authority.”
Salmond
defines – “Subordinate legislation is 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.”
Delegated legislation is, at times, referred
to as “Ancillary”, “Subordinate”, Administrative Legislation or as
Quasi-Legislation”. Delegated legislation is a technique to relieve pressure on
legislature’s time so that it can concentrate on principles and formulation of
policies.
Essential characteristics
of Delegated Legislation:
· The rules should contain short titles,
explanatory notes, reference to earlier amendments, etc. for clear
understanding.
· No extra-ordinary delay shall occur in
making the subordinate legislation.
· The administrative authority should not
travel beyond the powers given in Parent Act.
· Essential legislative functions cannot be
delegated.
· Sub-delegation (Delegatus non potest delegare) is not encouraged.
· General rules should not be framed with
retrospective operation, unless and until the parent Act instructs to do so.
· Discriminatory and arbitrary rules should
not be framed.
· Wide and sufficient publicity shall be
given so that general public can know it.
· In appropriate cases, consultation also
shall be made for more effectiveness and efficiency.
· The Sub-ordinate authorities should not
use rigid, crux and technical language while preparing the rules, which may
cause difficulty to understand by general public.
· The final authority of interpretation of
the subordinate rules is vested to Parliament and Courts. But the
administrative authorities are not empowered and authorised to interpret the
statutes.
·
A tax or financial levy should not be
imposed by rules.
·
Wherever it is necessary, the explanatory
notes shall be given.
·
Public interest must be kept in view while
delegating the powers, etc.
History of Delegated Leislation in India:
a.
Pre – constitutional Position:
The history of delegation of powers can be
traced from the charter stage of 1833 when the East India Company was regaining
political influence in India. The of 1833 vested the legislative powers
exclusively in Governor – General – in council, which was an executive body. He
was empowered to make laws and regulations for repealing, amending or altering
any laws or regulations, which were in force for all persons irrespective of
their nationality. In 1935 the Government of India Ac, 1935 was passed which
contained an intensive scheme of delegation. The report of the committee on
ministers’ powers was submitted and approved which fully established the case
for delegation of powers and delegation of legislation was regarded as
inevitable in India.
b.
Present Position:
Though,
our constitution was based on the principal of separation of powers, a complete
separation of powers was not possible hence it maintained the sanctity of the
doctrine in the modern sense. The Indian Constitution does not prohibit the
delegation of powers. On the other hand there are several provisions where the
executive has been granted the legislative powers. For example the legislative
powers of the president under the Indian Constitution are conspicuous. Under
Article 123 the president has the power to promulgate the ordinances and
unrestricted power to frame regulations for peace progress and good government
of the union territory under Article 240. The Supreme Court of India has also
upheld the delegation of legislative powers by the legislative to the
legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration Committee
Growth of Delegation of Power and it’s Reason:
Many factors are responsible for the rapid
growth of delegated legislation in every modern democratic state. The traditional
theory of ‘laissez faire’ has
been given up by every state and the old ‘police state’ has now become a
‘welfare state’. Because of this radical change in the philosophy as to role to
be played by the state, their functions have increase. Consequently, delegated
legislation has become essential and inevitable.
Some of the reasons of the growth of the
Delegation of Powers are as follows:
1. Pressure upon Parliamentary Time:
As a result of the expanding horizons of
the state activity, the bulk of legislation is so great that it is not possible
for the legislation to devote sufficient time to discuss all the matters in
detail. Hence there is need for a delegation of power.
2. Technicality:
Sometimes, the subject – matter on which
legislation is required is so technical in nature that the legislator, being
himself a common man, cannot be expected to appreciate and legislate on the
same, and the assistance of experts may be required. Hence, this lead to the growth of delegation of
power.
3. Flexibility:
At the time of passing any legislative
enactment, it is impossible to foresee all the contingencies, and some
provision is required to be made for these unforeseen situations demanding
exigent action. Hence there is a need for flexibility which leads to the growth
of delegation of power.
4. Experiment:
The practice of delegated legislation enables
the executive to experiment. The method permits rapid utilization of experience
and implementation of necessary changes.
5. Emergency:
In the time of emergency, quick action is
required to be taken. The legislative process is not equipped to provide for
urgent solution to meet the situation. Hence there is need for delegation of
power.
Delegation Legislation : Position under Constitution of India
The
Legislature is quite competent to delegate to other authorities. To frame the
rules to carry out the law made by it. In D.
S. Gerewal v. The State of Punjab, K.N. Wanchoo, the then justice of the
Hon'ble Supreme Court dealt in detail the powers of delegated legislation under
the Article 312 of Indian Constitution. He 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 words "Parliament may by law
provide" in Article 312 should not be read to mean that there is no scope
for delegation in law made under Article312…." In the England, the
parliament being supreme can delegated any amount of powers because there is no
restriction. On the other hand in America, like India, the Congress does not
possess uncontrolled and unlimited powers of delegation.
In
Panama Refining Co. v. Rayans, the
supreme court of the United States had held that the Congress can delegate
legislative powers to the Executive subject to the condition that it lays down
the policies and establishes standards while leaving to the administrative
authorities the making of subordinate rules within the prescribed limits. 4
Art. 13 (3) Defines law and it Includes ordinance, order, byelaw, rule,
regulation & notification having the force of law.
In
Sikkim v. Surendra Sharma- it is held
that ‘All Laws in force’ in sub clause (k) of Art. 371 F includes subordinate
legislation. Salmond defines law as that which proceeds from any authority
other than the Sovereign power & is therefore, dependent for its continued
existence & validity on some superior or supreme authority.
