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Essay on Delegated Legislation
Essay Contents:
- Essay on the Meaning of Delegated Legislation
- Essay on the Causes of Growth of Delegated Legislation
- Essay on the Universality of Delegated Legislation
- Essay on the Advantages of Delegated Legislation
- Essay on the Disadvantages of Delegated Legislation
- Essay on the Safeguards in Delegated Legislation
Essay # 1. Meaning of Delegated Legislation:
Delegated legislation refers to the law making power vested with the executive by the legislature itself. This term is known as Executive Legislation. Since the law-making power given to the Executive is not its original power, it is called subordinate legislation. It is deemed void if it violates the parent Act or transgresses its power. Donoughmore Committee thus defined the Delegated Legislation.
“The word legislation has grammatically two meanings—the operation or function of legislation; and the laws which result there from. So too delegated legislation may mean either exercise by a subordinate authority, such as a Minister, of the legislative power delegated to him by the Parliament, or the subsidiary laws themselves passed by Ministers in the shape of departmental regulations and other statutory rules and orders.”
During the last one decade or two, there has fast developed a tendency, on the part of the Legislature, of delegating their law-making function to the Executive.
Though passing of laws is the responsibility of the legislature and not of the Executive yet due to significant social, political and economic changes, the legislature has found itself obliged to delegate quite a bulk of its legislative power to the administrative authorities.
The executive makes use of this power through the issue of rules. Since the rules so made by the Executive have the force of laws and are enforceable by the courts of laws, this rule making power is termed as Delegated Legislation, Executive Legislation or Subordinate Legislation.
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Thus we may conclude that delegated legislation means the exercise by a subordinate authority such as a Minister of the legislative power delegated to him by the Parliament. Parliament passes the Bill in general terms and delegates the authority of rule-making under the Act to the Minister concerned.
Since this authority of rule-making is in pursuance of statutory authority and not an original power of the Executive in its own right delegated legislation is subservient to the statute under which it is made. If the rule is not consistent with the statute, it is null and void.
The term delegated legislation is used in two senses:
(a) It refers to the powers delegated to the executive to make rules,
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(b) It means the output of the exercise of that power, viz., rules, regulations, orders, etc.
Essay # 2. Causes of Growth of Delegated Legislation:
The delegated legislation has become almost a universal phenomenon. In the U.K. and the U.S.A. in particular it has gained momentum despite the fact that sovereignty of parliament prevails in Britain and separation of powers is the cardinal feature of the American Constitution.
It may however be emphasized that the growth of delegated legislation is not due to the fact that the democratic urge among the Britishers and the Americans has got chilled. It is owing to certain important factors which have contributed a great deal towards this development.
They are as follows:
(a) Impact of Science and Technology:
Due to the impact of science and technology the functions of the modern state have got multiplied to such an extent that it is virtually controlling the management of the life of the community as a whole. Evidently, this has led to the growth of powers of the modern legislature to an extent that they cannot cope with it.
They are thus compelled to delegate some of their powers to the Executive. The pressure of work and lack of time induce the legislature to delegate legislative authority to the Executive.
(b) Average Legislator—A Layman:
The average legislator is a layman. He is not competent to deal with matters complex and complicated. Hence, he lays down only general principles and leaves the technical details to be filled up by the departmental heads.
For example, the Parliament may place restrictions on the sale of poisonous substances but may leave the compilation of poisonous substances to the experts in the Medical and Health Department.
(c) Need to Secure Flexibility:
Law may require amendments, or modifications with the change of times. Parliament is not always in session. Hence, it cannot adapt the law to the changing conditions. Delegation of this power to the executive enables it to make alterations in the law whenever deemed essential.
(d) To Provide for Unforeseen Contingencies:
Emergencies like war, famine, pestilence, economic crisis require prompt action. It is not desirable to wait for the session of the parliament to meet such eventualities. Hence such a power need be vested with the Executive which is always prepared to take action.
Carr has correctly remarked, “It is during global wars that governmental regulation becomes most intrusive. This is natural enough, lo secure survival from these uncomfortable experiences, legislative power must be delegated in the widest terms to meet unforeseeable as well as patent danger…”
(e) Legislature Cannot Foresee:
It is not possible for the legislature to foresee and include in the law all the contingencies which may arise in case of large and complex matters. Hence they are left to the departments to be regulated as and when the opportunity arises.
(f) Affected Interests Better Consulted:
Administrative agencies can make better consultation with the interests affected than the legislature which cannot conveniently arrange for such consultations. In the words of White, “The drafting of the rule may and often does permit conference between the government and the parties at interest and consequently a broad agreement which leads towards voluntary compliance.”
(g) New Standards to be Set Up:
Growth of delegated legislation can also be attributed to the need of setting up of new standards in the social interest. This is to ensure the national minimum of health, education, housing, and sanitation to everybody that expert and experienced knowledge is required.
For instance, the question whether a local authority is justified in restricting traffic in excess of a certain weight from crossing a particular bridge is an engineering problem which can hardly be solved by the law of the legislature. A right decision on such questions necessitates the application of rules which only engineers of long experience can comprehend.
(h) Administrator Better Aware of the Requirements of the Situation:
The Administrator is better aware of the requirements of the situation than a lay parliamentarian. He can therefore draft rules in the light of what is administratively feasible. Laws passed by the Legislature are not necessarily concerned with the administrative feasibility of rules.
Hence, many a time they seem unworkable and the Administrator finds himself in a dilemma. In order to cope with such a situation, he may enforce the laws in a way as to defeat its very purpose. According to Amery, “Much of our social and economic legislation covers so vast and detailed a field that no statute howsoever cumbrous—could possibly provide for all contingencies.”
(i) Rules to be Lenient in the Initial Stages:
Government is entering into new spheres especially of trade and commerce. As such it must elicit the co-operation of a large section of the people. Such co-operation is mutual. The rules of the Government must also be lenient and innocuous.
If people get adjusted to the new situation, Government rules may be stiffened. The Administrative rule making procedure alone can permit hardening of the rules after passage of some time.
(j) Proper Drafting of Rules:
Since rule-making is done in keeping with the circumstances, drafting of rules is apt to be more perfect than the legislation through the parliament. Hence it is preferred.
Essay # 3. Universality of Delegated Legislation:
The delegated legislation has become almost a universal phenomenon. In U.K., for instance, there were 675 pages devoted to parliamentary enactments in 1952 though in the same year, 3980 pages had been utilized for statutory instruments-the generic term for delegated legislation.
In India too, due to rapid expansion of governmental activities delegated legislation is on the increase. Even in the U.S.A. whose constitution is based on the theory of separation of powers delegated legislation is gradually on the ascendance.
Even the Supreme Court of U.S.A. upheld ‘delegated legislation’ in the famous Hampton Co. versus U.S. (1928) case. It stated, ” If Congress shall lay down by legislative act an intelligible principle to which the person or body authorised to fix such rates is directed to conform such legislative action is not a forbidden delegation of “legislative power.”
Thus it is evident, that delegated legislative power is permitted in the U.S.A. though within certain limits. Dr. White has stated that the published rules and regulations cover about eight or ten times as many pages as the Acts passed by Congress.
Essay # 4. Advantages of Delegated Legislation:
Its popularity can be safely attributed to its striking advantages which are as follows:
(a) Time of Parliament Saved:
Delegated legislation enables the parliament to save its time. As already said, the activities of the Government have got multiplied. The volume of legislation has thus become manifold. The legislature has neither the time nor the capacity to make laws.
Hence, it delegates some of its law-making powers to the Executive, freeing itself from the burden of details. Time, thus saved, can be more fruitfully utilized by the legislature on important issues of policy.
(b) Flexibility of Rules:
It is conducive to flexibility. Laws passed by the legislatures are comparatively rigid. Rigorous procedures of amendment may have to be resorted to, to effect amendments in certain laws. Otherwise too, repealing, rescinding or amending an ordinary law necessitates following up of a certain specific procedure, sometimes making prompt adaptability to changing circumstance a bit difficult. James Hart has correctly remarked,
“If a legislative rule is both specific and unworkable, the administrator is in dilemma. He must either try to work the unworkable and thereby invite litigation and defeat of the real purpose of the statute or he must evade or ignore the letter of the law.”
Administrative rule, on the other hand, is easily changeable in response to fast changing needs, without a formal amendment of the Act. Such an adaptability is particularly desirable in the fields that are experiencing rapid changes due to quick, scientific and technological advances.
(c) Interests Affected Consulted:
Delegated legislation makes prior consultation with the affected interests possible. Such a consultation will make legislation more effective. In the words of White, “The drafting of the rule may and often does permit conference between the government and the parties at interest and consequently a broad agreement which tends towards voluntary compliance.”
(d) Expert Knowledge Utilized:
Parliament is composed of laymen who may be able to lay down broad principles and objectives but are certainly not competent to determine the minor details. The details should be worked out by the experts. Delegated legislation helps in making use of the expert knowledge and working out details on correct lines.
(e) Experimentation in New Fields Possible:
Making of experiments in such fields as Town Planning is possible through delegated legislation. Dr. White has rightly remarked, “In entering new fields the first administrative rules may be relatively innocuous with gradual stiffening until the full intent of the statute is achieved. Meanwhile the interest to be regulated is adjusting itself and the mixture of persuasion with command may produce better results than immediate insistence on all requirements.”
Even Donoughmore Committee stated that the delegated legislation, “permits of experiment being made and thus affords an opportunity, otherwise difficult to ensure, of utilizing the lessons of experience. The advantage of this in matters, for instance, like town-planning, is too obvious to require detailed emphasis.”
(f) Unforeseen Contingencies Adequately Met:
Parliament is not omniscient. It can hardly foresee all sorts of contingencies which may arise, if a particular scheme is to be implemented. Hence the administrative officials must be equipped with discretionary powers to deal with such type of situations, by issuing rules and regulations.
(g) Avoidance of Litigation:
Administrative legislation permits a definite statement of policy thus avoiding possibility of litigation or compulsion. According to White, “The avoidance of litigation as far as possible is a definite gain.”
(h) Prompt Action in Emergencies:
Parliament is in session for a few months in a year. If emergencies crop up during its interval, they cannot be tackled promptly till the Executive is empowered to meet them through its power of issuing rules and regulations.
(i) Proper Drafting of Rules:
Since rule-making power is exercised, keeping in view actual situation, by the experts deputed for the purpose by the executive, drafting of rules is apt to be more perfect. In short, delegated legislation is a suitable answer to the rapidly increasing needs of the present-day changing society which necessitates a progressive attitude and an adaptation of policies to the changing circumstances.
Essay # 5. Disadvantages of Delegated Legislation:
Despite its marked popularity, the system has been vehemently criticized by critics like Lord Hewart and C.K. Allen. Hewart describes it as ‘triumph of bureaucracy.’ Dicey 30 years after writing on rule of law remarked (in 1915) ‘Rule of Law is exposed to New Peril’ due to the growth of delegated legislation.
Following are the main points of criticism advanced against it:
(a) Individual Liberties at Stake:
It is apprehended that vesting of discretionary powers with the officials turns democracy into despotism. Concentration of legislative and executive authorities results in jeopardizing the liberties of the individuals.
According to Hewart, vesting of this power of making rules with the Executive amounts to “subordinate Parliament to evade the courts and to render the will or the caprice of the Executive unfettered and supreme.”
(b) Delegation of Unlimited Powers:
Once this process of delegating of legislative powers commences, it is apprehended that unlimited powers may be delegated to the Executive. In India, for instance, the legislature has been passing skeleton bills, giving blanket powers to the Executive.
The Local Government Acts, for example, bestow upon the Executive the power of constituting, suspending and superseding the Municipal authorities, even of determining the size of the Municipal Councils and mode of election or appointment.
Likewise, the Estate Duty Act empowered the Central Government to impose or vary taxation. In the words of Kemp, “When the Charter is so indefinite, the courts certainly cannot control it, and parliament can do so only by revoking it altogether…”
(c) Jurisdiction of Courts Ousted:
Delegated legislation often seeks to oust the jurisdiction of the courts. This results in depriving the citizens of judicial protection. The Enabling Act may clearly specify that the rules made there under shall not be called in question in any court of law.
In the words of Lord Hewart, “It is the abuse of the system that calls for criticism and perhaps the greatest abuse and the one most likely to lead to arbitrary and unreasonable legislation is the ousting of the jurisdiction of the Courts.”
(d) Interest of the People Ignored:
It is generally contended by the critics that it may serve the interests of the influential parties or the interested groups, thus ignoring the interests of the general masses. The Enabling Acts always require the rule making authority to consult the interested parties before framing the rules. This may consequently result in ignoring of the common interests.
(e) Judicial Remedy Costly:
Judicial remedy, though constitutionally provided to the citizens, is generally costly and fairly cumbersome. In India, prior approval of the government has to be secured before any administrative authority can be sued in the court.
(f) Publicity of these Rules Poor:
The people generally suffer because the rules are not brought home to them. Though the Enabling Act provides that the Government would give proper publicity to the Rules and Regulations, yet in general proper publicity to such rules is not given. This adversely affects the interest of the people.
(g) Democratic Principle Undermined:
Generally taxation power is also delegated. Such a delegation undermines a famous democratic principle, ‘No taxation without representation’. For example, Estate Duty (Controlled Companies) Rules, 1953 empowered the Executive in India to impose or vary taxation. These rules were, however, withdrawn.
(h) Privileged Position of the State:
The critics opine that even if judicial remedies are available the citizens cannot expect a fair deal from the courts especially when they are pitched against the State. In India, in particular, the State enjoys such an envious position.
(i) Retrospect Effect Unfair:
It is opined that these sub-laws are sometimes applied with retrospective effect. This is rather unfair. Even the British Select Committee on Statutory Instruments observed that rules “should not purport to have retrospective operation unless Parliament had expressly so provided.”
(j) Inadequate Scrutiny:
Inadequate scrutiny of the rules and regulations by parliament makes delegated legislation develop into despotism. Though parliament’s main function is to control the executive, yet parliamentary scrutiny of delegated legislation has been inadequate and not very critical.
As such, it has failed to keep the executive on the rails. The Donoughmore Committee, therefore, expressed the fear that “there is a danger that the servant may be transformed into the master.”
(k) Confusion and Chaos:
It is contended that too much flexibility leads to confusion and causes chaos. Hence it very adversely affects the administration. Though these points of criticism have some weight in them, yet delegated legislation cannot be avoided. It is in fact a necessary evil.
It is necessary because Parliament lacks time to enact detailed legislation on all kinds of subjects on which laws have to be made. It is also an evil because it gives to Caesar what does not, in fact, belong to Caesar.
Moreover, the delegated power is likely to be abused in the absence of adequate safeguards and proper vigilance. Donoughmore Committee rightly pointed out, “The system of delegated legislation is both legitimate and constitutionally desirable for certain purposes within certain limits and under certain safeguards.”
Essay # 6. Safeguards in Delegated Legislation:
Delegated legislation is a necessary evil and is as such ever on the increase.
Following safeguards should be provided to avoid its pitfalls:
1. The Enabling Acts should specifically define the powers delegated. The use of vague terms as ‘in common interest’, ‘reasonable variations’ may be avoided as they give vast discretionary powers to the executive.
2. The jurisdiction of the courts should not be ousted. Donoughmore Committee rightly pointed out, “The rule of law requires that all regulations should be open to challenge in the courts except when Parliament deliberately comes to the conclusion that it is essential in the public interest to create an exception and to confer on a Minister the power of legislating with immunity from challenge.”
Thus the power of Judicial review should vest with the courts. That will check the excesses of delegated legislation.
3. The executive should take into confidence the outside interests directly affected by the proposed exercise of rule making powers. If divergent interests are to be catered to, a standing Consultation Committee representing all interests should be appointed to give suggestions to the executive.
4. Explanatory notes should be added to all the regulations so that the layman is fully acquainted with the necessity of a particular regulation. An Explanatory Memorandum be added with the Enabling Act indicating clearly what types of regulations should be made under the Bill if it is enacted.
5. Rules and regulations should be published and given proper publicity. In India, for instance, elaborate rules have been laid down in this respect. In U.S.A. also the Administrative Procedure Act lays down certain conditions specifically.
6. Parliamentary control over delegated legislation is a proper safeguard against abuse of this power by the Executive. In India and Great Britain, an elaborate system of parliamentary control over delegated legislation has been provided. Kersell eulogizes this safeguard when he opines, “The most appropriate institution to supervise the use of delegated legislative powers is parliament…”
7. Rule making authority should be delegated to a trustworthy authority approved by the Parliament. In India and U.S.A. where doctrine of supremacy of constitution prevails, the legislature cannot delegate its law-making power to any extent.
It cannot delegate its substantive legislative power. In the U.S.A. where doctrine of separation of powers prevails, law-making is the monopoly of the Congress. Its delegation should be normally unconstitutional.
To meet the exigencies of modern times, the law courts have invented doctrine of ‘subterfuge’ which permits the delegation of subordinate legislation. In a leading case Field vs. Clerk the Supreme Court held, “The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law intends to make its own action depend.”
In India, there is no specific or explicit provision in the Constitution empowering Parliament to delegate its law-making power. However, there are several provisions wherein the authority to delegate can be inferred. The term ‘Law’ as provided in Article 13(3) of the constitution includes any ordinance, order, bye-law, rules, regulations, notification etc. which being in violation of the Fundamental Rights would be void.
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Rules and regulations are not made by the legislature but by the agencies other than the legislature, namely the executive and local bodies under the delegated authority. Besides, a number of judicial pronouncements of the Supreme Court have justified delegated legislation.
In Vasant Lal Magan Bhai Case reported in AIR 1961 Section 4 the Supreme Court observed. “Subordinate legislation has now become well-settled. There is nothing wrong in such legislation because the modern conditions have compelled the legislature to entrust its duty to administrative agencies.”
In U.K., quite a different tale is to tell. The High Court of Judicature has held, “The British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the king, an absolute power untrammelled by any written instrument, obedience to which may be compelled by some judicial body.”
Thus Parliament in U.K. can delegate its legislative power to any outside authority. In U.K., the limiting of delegated legislation is a question of policy and not of law.
Knowing the inevitability of Delegated Legislation, it may be suggested that the safeguards enumerated in the preceding paragraphs should be given due weight without which the Executive might become despotic and liberty of the people may be at stake.