Diwakar Prakash Garg, a 3rd-year student from UPES, School of Law has written this Article on “Delegated Legislation in Administrative Law”.
Introduction
Delegated legislation, which refers to the procedure through which administrative agencies or entities are granted the authority to create and carry out particular rules or laws within a certain area of jurisdiction, is a key term in administrative law. In this procedure, the major legislative body transfers legislative responsibility to the administrative agency, which is then in charge of developing and enforcing certain rules and regulations[1].
The delegation of legislative power is a complex issue, with significant implications for democratic accountability, legal certainty, and the protection of individual rights and interests. At its core, delegated legislation raises questions about the proper balance of power between different branches of government, the scope of judicial review, and the role of public participation in the policy-making process[2].
Delegated legislation has several benefits, including flexibility and responsiveness. The administrative body has more specialized knowledge than the main legislative body. It makes it easier for it to adjust to shifting conditions and new problems within its purview. This might lead to more effective regulation that is more adapted to the demands of the public and stakeholders.
Overall, the use of delegated legislation in administrative law presents significant issues regarding the right distribution of authority. Which is among several governmental institutions as well as the importance of public input and oversight during the policy-making process. While the flexibility and responsiveness of delegated legislation may be advantageous, it is crucial to make sure that it is utilized properly and is subject to the proper examination and evaluation[3].
Scope & Objectives
The scope and objective of delegated legislation are to empower administrative agencies. It helps to create and enforce specific regulations or laws within their area of jurisdiction. Additionally, It ensures appropriate oversight and accountability to prevent abuse of power or overreach.
Meaning, Nature, and Scope of Delegated Legislation?
Delegated legislation refers to the procedure through which administrative agencies or entities are granted the power to create and enact specified rules or laws within a given sphere of authority. In this procedure, the major legislative body transfers legislative responsibility to the administrative agency. Which is then in charge of developing and enforcing certain rules and regulations.
Delegated Legislation is a key idea in administrative law. It is important since it regulates a variety of activities and businesses. Administrative agencies can more readily adjust to shifting conditions and new concerns within their sphere of authority since they have more specialized knowledge than the main legislative body. This might lead to more effective regulation that is more adapted to the demands of the public and stakeholders[4].
Delegated legislation presents significant issues regarding the correct division of authority among the three parts of government, as well as the significance of public input and supervision in the formulation of public policy. Although the flexibility and responsiveness of delegated legislation might be advantageous. It is crucial to utilize it properly and submit it to the necessary examination and evaluation.
One of the main concerns with delegated legislation is the possibility of abuse of power by the administrative agency. It might lead to the creation of rules that may be arbitrary, unreasonable, or at variance with the parent law’s intended aim. This may threaten the preservation of individual rights and interests, democratic accountability, and the rule of law.
Furthermore, To address these issues, administrative law frequently uses a range of methods for overseeing and analyzing delegated legislation. These include rules for public comment, requirements for transparency and accountability, and the possibility of judicial review by courts. The existing institutions and specific legal frameworks will determine the precise instruments for oversight and assessment.
However, the use of delegated legislation also raises concerns about the potential for abuse of authority, arbitrary decision-making, and a lack of transparency and accountability. Administrative law specifies a range of procedures for overseeing and examining delegated legislation. It includes judicial review, transparency and accountability requirements, and public engagement to address these problems.
It’s also important to keep in mind that delegated law does not replace primary legislation. Its purpose is to supplement fundamental law and, when necessary, provide clearer and more detailed norms. Delegated legislation must uphold the principles of democratic accountability, the rule of law, and the defense of individual rights and interests. It is subject to the same laws and limitations outlined in the Constitution as primary legislation.
Delegated legislation, in general, is crucial to the governance of modern societies. It provides a responsive and flexible regulatory framework that can be changed to changing circumstances and new issues. Despite the challenges and concerns it brings, the proper use of delegated legislation might have a significant positive impact on effectiveness, efficiency, and responsiveness.
History of Delegated Legislation
In India, delegated law-making has a lengthy history that dates back to the British colonial era. The British administration enacted several laws during this period to control economic activity, interpersonal relationships, and political structure among other elements of Indian society. Local officials and bureaucrats were in charge of carrying out the rules and executing the law. This legislation frequently gave them a lot of authority.
The Supreme Court of India evaluated the legality of a rule made under the 1940 Drugs and Cosmetics Act in the case of HAMDARD DAWAKHANA V. UNION OF INDIA (1960)[5], which is another significant decision about delegated legislation in India. In this decision, the court ruled that delegated legislation had to adhere to the goals and rules of the parent law and could not go beyond its authority. To guarantee openness and accountability in the process, the court further emphasized the significance of giving explanations and justifications for the exercise of delegated authority.
The Supreme Court of India has more recently taken into account many issues using delegated legislation in the area of environmental control. For instance, the court evaluated the legitimacy of a notice issued by the Ministry of Environment and Forests declaring specific regions to be environmentally sensitive in the case INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA (1996)[6]. In this decision, the court emphasized the value of scientific data and professional judgment in the delegated legislation process, as well as the necessity of public input and review.
Overall, delegated legislation has been crucial to Indian governance and regulation throughout its history. It is now a key instrument for fostering effective and efficient policy-making. A variety of legal and constitutional restrictions, however, are also in place to make sure that there is proper monitoring, accountability, and compliance with the fundamentals of democratic government and the rule of law[7].
Types of Delegated Legislation
Delegated legislation is a procedure wherein the power to enact laws, rules, and regulations in a certain field is given to administrative organizations or agencies. Delegations come in a variety of forms, including the following:
Conditional Delegation:
In this scenario, the main legislative body transfers its authority to the administrative entities subject to stipulations or restrictions. Only within the parameters set by the main legislative body are the administrative bodies permitted to exert their authority. The delegation is limited, and the administrative bodies are not allowed to act outside of the parameters established by the main legislative body.
Unconditional Delegation:
In this sort of delegation, there are no restrictions or constraints placed on the authority granted by the main legislative body to the administrative entities. The administrative bodies are free to exert their authority without limitations.
General Delegation:
In this kind of delegation, the main legislative body gives administrative agencies the authority to enact laws and regulations on a wide or broad subject. Within the limits of their given authority, the administrative bodies have the authority to enact laws and regulations.
Specific Delegation:
In this kind of delegation, the main legislative body gives administrative authorities the authority to enact rules and regulations on a particular topic. Administrative bodies only have the authority to enact rules and regulations on the matters that have been allocated to them.
Express Delegation:
In this case, the main legislative body expressly grants the administrative authorities the authority to enact laws and regulations.
Implied Delegation:
In this sort of delegation, the main legislative body implicitly grants the administrative bodies the authority to carry out their duties based on the context or the wording of the legislation.
Subordinate Legislation:
This kind of delegation entails the authority granted to administrative authorities to create rules and regulations that are subordinate to the principal legislation. Although administrative bodies can create rules and regulations, they are constrained by the parameters outlined in the fundamental legislation.
There are numerous forms of delegation, which is a fundamental idea in administrative law. The type of delegation is determined by the terms, content, and nature of the transferred powers. The delegated laws may be stated, implicit, broad, special, conditional, unconditional, or subordinate. The legislative bodies are responsible for ensuring that the delegated legislation is made within the parameters outlined by the original law and that it receives the necessary examination and review[8].
Constitutionality of Delegated Legislation: A Brief Study of USA, UK, and India
Delegated legislation is the procedure through which the main legislative body gives administrative agencies or bodies permission to develop and carry out certain rules or laws within a given sphere of authority. Delegated legislation’s legality has been a major problem in many legal systems. Such as those in the United States, the United Kingdom, and India.
The theory of separation of powers largely governs the validity of delegated legislation in the United States. According to the U.S. Constitution, Congress has the exclusive right to pass laws, and it is not permitted to transfer that authority to another department of government without explicit instructions. The Supreme Court created a two-part test known as the “intelligible principle test” to examine whether delegated legislation is constitutional. To pass these criteria, the administrative agency must have explicit instructions from the main legislative body. The delegation of authority can only be employed to achieve predetermined policy objectives. The Environmental Protection Agency and the Occupational Safety and Health Administration have both issued regulations that the Supreme Court has supported under this test.
The parliamentary sovereignty principle governs the validity of delegated legislation in the United Kingdom. According to this concept, no other organization or institution may supplant or restrict the jurisdiction of Parliament in the making of legislation on any topic. In reality, however, Parliament frequently transfers legislative power to administrative authorities through the use of statutory instruments. The U.K. courts have the task of investigating and evaluating the constitutionality of delegated legislation. The source law must give the administrative body clear and precise instructions. Also, The courts have established a set of criteria to govern the implementation of delegated legislation, which includes restricting the delegated authority to implement certain policy goals.
The notion of separation of powers and the idea of parliamentary sovereignty essentially determine whether delegated legislation in India is constitutional. According to the Indian Constitution, the state legislatures and Parliament have the exclusive right to pass laws. Although they may also transfer such authority to other organizations or entities. However, there are several constraints and limitations on the delegation of legislative authority basic law must give the administrative body clear and precise instructions. Also, The delegated authority must only be used to carry out defined policy objectives, according to the Indian Constitution. The Supreme Court of India has established a number of principles to govern the use of delegated legislation. Moreover, It includes the requirement that the delegated power be used reasonably and that it not be used to violate fundamental rights. The constitutionality of delegated legislation in India is subject to scrutiny and review by the courts[9].
Delegated legislation in India is constitutionally legitimate thanks to some important judgments. The Supreme Court ruled in the case of In Re: The Delhi Laws Act, 1912 [10]that the delegation of legislative authority is a constitutional requirement, but it must be restricted to defined ends and contain sufficient safeguards against abuse of power. Moreover, the Court ruled that the delegation must not violate any Constitutionally protected basic rights or freedoms.
Delegated legislation is only valid if it is compatible with the intent and purpose of the parent legislation, according to the Supreme Court’s ruling in the case of K.T. PLANTATION PVT. LTD. V. STATE OF KARNATAKA. Additionally, the Court ruled that the delegation must include adequate safeguards to prevent the executive branch from abusing its authority.
In the case of M.C. Mehta V. Union of India, the Supreme Court ruled that delegated legislation is lawful only if it is necessary to achieve a legitimate governmental objective and does not infringe on any Constitutionally protected basic freedoms or rights. Furthermore, the Court ruled that the delegation must include sufficient safeguards to prevent the misuse of power.
Legislative Control on Delegated Legislation
Legislative control over delegated legislation refers to the processes and practices used by the main legislative body (such as the state legislature or the Parliament) to exercise oversight and scrutiny over the rules and laws made by administrative agencies or bodies through delegated legislation. Such oversight attempts to guarantee that delegated legislation adheres to the parent law’s original goal and does not go beyond the power provided to the administrative agency[11].
There are several mechanisms for legislative control of delegated legislation. These include:
Enabling Act:
The primary legislation that delegates the legislative authority to administrative agencies will usually include specific provisions that outline the scope and limitations of the delegated power. Moreover, The provisions may comprise requirements for consulting with stakeholders, establishing procedures for public scrutiny and review, and imposing limitations on the types of regulations or laws that delegated legislation can create.
Parliamentary Scrutiny:
The primary legislative body may establish committees or other mechanisms for reviewing and scrutinizing the regulations or laws created through delegated legislation. These committees may include members of parliament or experts from relevant fields. Such scrutiny aims to ensure that the delegated legislation is consistent with the original intent of the primary legislation. Also, it does not exceed the authority granted to the administrative agency.
Sunset Clauses:
The primary legislation may include provisions that automatically terminate or expire delegated legislation after a certain period. Furthermore, This ensures that delegated legislation is regularly reviewed and updated and that it does not become outdated or irrelevant.
Delegation of Disallowance:
The primary legislative body may reserve the power to disallow or repeal regulations or laws created through delegated legislation. Moreover, This power allows the primary legislative body to intervene in cases where delegated legislation is inconsistent with the original intent of the primary legislation. Also, where it exceeds the authority granted to the administrative agency.
Judicial Review:
The courts may also exercise control over delegated legislation through judicial review. This allows the courts to examine the legality and constitutionality of delegated legislation. Moreover, it permits to strike down regulations or laws that are inconsistent with the original intent of the primary legislation or that exceed the authority granted to the administrative agency[12]
Procedural Control
- There is no particular procedure for it until the legislation makes it mandatory for the executive to follow certain rules and procedures.
- It has the potential to meet the effective vigil over administrative rulemaking. It can guarantee effective people participation for better social communication acceptance and effectivity of the rule.
- Certain guidelines are provided under the parent act that must be followed, whether they are mandatory or directory.
- If the executive doesn’t follow the procedure laid down by the legislative then the rules made by the executive will become invalid.
- Pre-publication and consultation with export authority- according to section 23 of the general clause act 1897. The rules made must be published in draft form in the Official Gazette. The rule-making authority should also invite objections and suggestions from the public and consider them.
- Publication of delegated legislation- there is a well-known principle of law “ignorantia juris non excusat”(ignorance of the law is not an excuse). But there is another equally important principle that the public should have access to the law of the land. Publishing the rules is crucial to ensure that people are aware of them, and it is important to take the necessary steps to do so.
- Laying of rules- it means to place the rules made before the parliament.
- Drafting- The drafting of delegated education by an expert draftsman, who is at the same time in a position to advise whether the proposed rule and regulation hour intra- virus is a valuable safeguard.
- Consultation with affected persons- the control mechanism makes the administrative role making a democratic process and therefore increases its acceptability and effectivity of consultation with affected interests before delegated legislation or statutory instrument is prepared it is a visible safeguard against possible misuse of power by the rule-making authority[13].
Judicial control
In India, judicial review of administrative rulemaking is subject to the normal rules governing the review of administrative actions.
General officer commanding in Chief v. Subhash Chandra Yadav [14]the Supreme Court has been that an act providing that rule made there under on publication of in Official Gazette would be as if in an act in act can’t be take away judicial review.
- Constitutionality of the Parent Act- To doubt the constitutionality of the law is to resolve it in favor of its validity the parent act may be unconstitutional due to excessive delegation breach of fundamental rights and on any other ground such as distribution of powers between the center and the state[15].
Landmark Cases on Delegated Legislation
There have been several landmark cases related to delegated legislation in administrative law. Here are a few notable examples:
- A.K. Roy v. Union of India (1982)[16]: The Essential Commodities Act of 1955, which gave the government-wide authority to control the production, supply, and distribution of vital goods, was challenged in this case as being unconstitutional. While affirming the Act’s validity, the Supreme Court also emphasized the value of procedural protections. The court also enshrines the requirement for parliamentary oversight of delegated legislation.
- Vasanlal Maganbhai Sanjanwala v. The State of Bombay (1961)[17]: The Bombay Prohibition Act, which gave the government the authority to set laws, was being contested in this case as having no legal standing. The Supreme Court upheld the delegation but emphasized that it had to adhere to specific guidelines. Such as being in line with the Parent Act and not being arbitrarily or capriciously passed.
- K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011)[18]: In this case, the legality of a government notice issued according to the Karnataka Preservation of Trees Act, 1976, which gave the government the authority to issue notifications, was contested. The Supreme Court upheld the delegation but emphasized that it needed to pass the stringent examination. It shouldn’t result in an undue delegation of legislative authority.
- Sita Ram Bhandar Society v. State of U.P. (1985)[19]: The U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 gave the government the authority to issue notices. The Supreme Court upheld the delegation’s legality but emphasized the necessity for legislative oversight and control of delegated laws.
- Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985)[20]: In this case, the legality of a clause in the Customs Act of 1962 that gave the government the authority to set the rates of customs tax was being contested. While affirming the delegation’s legality, the Supreme Court also emphasized the necessity for delegated legislation to be subject to constitutional restrictions and natural justice principles.
These situations highlight the intricate and dynamic character of delegated legislation in administrative law. It also enshrines the need of striking a balance between the demands for adaptability and efficiency and the requirements for constitutional protections and democratic accountability.
Conclusion
In conclusion, Delegated Legislation is a key part of the administrative law system in many countries. It enables administrative agencies to develop and put into practice certain rules and regulations within their purview. It may lead to more effective regulation that better satisfies the demands of stakeholders and the general public.
Delegated legislation does, however, also bring up significant issues about the division of authority among the many institutions of government. The need for citizen input and scrutiny in the formulation of public policy, and the defense of individual rights and interests. Moreover, These issues underscore the necessity for suitable controls over and reviews of delegated legislation. It includes methods for public input, specifications for accountability and openness, and the potential for judicial review by the courts.
Delegated legislation is anticipated to keep playing a significant role in the regulatory landscape in the future. Particularly in sectors like environmental protection, public health, and safety regulation. However, there may be increasing pressure to review the breadth and reach of delegated legislation. Especially in light of worries about democratic accountability, the rule of law, and the defense of individual rights and interests.
Also Read: Principle of Natural Justice, Click Here!
[1] Mr. Rahul Tomer Sunil Kumar Gupta, U. S. (2020, January 9). Delegated Legislation: A Review | Journal of the Gujarat Research Society. Delegated Legislation: A Review | Journal of the Gujarat Research Society. http://www.gujaratresearchsociety.in/index.php/JGRS/article/view/5212
[2] Ibid.
[3] Alexandrowicz-Alexander, C. H. (1954). Delegation of Legislative Power in India. The American Journal of Comparative Law, 3(1), 72–79. https://doi.org/10.2307/837126
[4] JUSTICE, THAKKER, C.K. (TAKWANI) & MRS. THAKKER, M.C. LECTURES ON ADMINISTRATIVE LAW. (Eastern Book Company. Lucknow, 4th Edition) (2010).
[5] 1960 SCR (2) 671
[6] 1996 SCC(3)212
[7] MUKHARJI, P. B. (1959). DELEGATED LEGISLATION. Journal of the Indian Law Institute, 1(4), 465–492. http://www.jstor.org/stable/43949623
[8] Supra at 4.
[9] Rachana Dhar, Constitutionality of Delegated Legislation: A Comparative Study of U.S.A., U.K., and India, 5 (1) IJLMH Page 845 – 851 (2022). DOI: https://doij.org/10.10000/IJLMH.112534
[10] 1951 SCR 747
[11] Sharma, M. P. (1956). Parliamentary Control Over Delegated Legislation in India. Indian Journal of Public Administration, 2(3), 208–217. https://doi.org/10.1177/0019556119560302
[12] Mathur, R. N. (1960). LEGISLATIVE CONTROL OF DELEGATED LEGISLATION A SURVEY. The Indian Journal of Political Science, 21(1), 25–37. http://www.jstor.org/stable/41852089
[13] Vakil, Keli Darshan, Procedural Deviance of Delegated Legislation from Parent Act (June 22, 2011). Available at SSRN: https://ssrn.com/abstract=1877247
[14] 1988 SCR (3) 62
[15] SHUKLA, V. N. (1959). JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA. Journal of the Indian Law Institute, 1(3), 357–374. http://www.jstor.org/stable/43953794
[16] 1982 AIR 710
[17] 1961 SCR (1) 341
[18] (2011) 9 SCC 1
[19] 1979 SCR (2)1085
[20] (1985) 2 S.C.R. 287
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