Delegated Legislation

What is Delegated Legislation?

• Delegated legislation (also called subordinate or secondary legislation) refers to the law-making power conferred by the Legislature upon the Executive or other subordinate authorities to frame rules, regulations, notifications, orders, bye-laws, schemes, or directions for carrying out the provisions of a parent (enabling) Act. While the Legislature lays down the essential legislative policy, the Executive is entrusted with filling in the procedural and technical details necessary for effective implementation.
• In a modern welfare state, the increasing complexity of governance, technological advancements, and the need for quick administrative responses have made delegated legislation an indispensable feature of constitutional governance. However, such delegation is constitutionally permissible only so long as the Legislature does not abdicate its essential legislative function.

Supreme Court View on Delegated Legislation

• The Supreme Court has consistently upheld the constitutional validity of delegated legislation while emphasizing that the Legislature cannot delegate its essential legislative function. According to the Court, Parliament must determine the legislative policy, objectives and guiding principles, while only ancillary or procedural powers may be delegated to the Executive.
• The Court has evolved the following principles regarding delegated legislation:
• Essential Legislative Function Cannot be Delegated: The Legislature must itself determine the policy, purpose and legislative standards. Delegation is confined to filling in the details necessary for implementation.
• Delegation Must Contain Legislative Guidance: The parent Act should prescribe clear principles, standards and limits within which the delegate must exercise its powers. Excessive or unguided delegation is unconstitutional.
• Delegated Legislation is Subject to Judicial Review

Courts may invalidate delegated legislation if it:

• Exceeds the authority granted by the parent Act (Ultra Vires).
• Violates Fundamental Rights.
• Is arbitrary, unreasonable or mala fide.
• Contradicts constitutional provisions.
• Delegated Legislation Cannot Override the Parent Act: Subordinate legislation must remain consistent with Sthe parent statute. It cannot amend or enlarge the scope of the Act unless such authority is expressly conferred by Parliament.

Landmark Judgments

• In Re Delhi Laws Act, 1951: The Supreme Court upheld the validity of delegated legislation but ruled that essential legislative functions cannot be delegated. Parliament may delegate only ancillary and administrative functions after laying down legislative policy.
• Hamdard Dawakhana v. Union of India (1960): The Court struck down delegated legislation because the parent Act failed to provide adequate legislative guidance, making the delegation excessive and arbitrary.
• Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner (1974): The Court upheld delegated legislation, holding that delegation is constitutionally valid where the Legislature has laid down sufficient policy and standards for the delegate.
• Agricultural Market Committee v. Shalimar Chemical Works Ltd. (1997): The Court reiterated that delegated legislation cannot override or be inconsistent with the provisions of the parent statute.

Delegated Legislation in Demonetisation Case

• The issue of delegated legislation gained renewed constitutional significance in the 2016 Demonetisation Case, where the validity of the Central Government's notification withdrawing the legal tender status of ₹500 and ₹1,000 currency notes was challenged before the Supreme Court.

o On 8 November 2016, the Central Government issued a notification under Section 26(2) of the Reserve Bank of India Act, 1934, declaring that all existing ₹500 and ₹1,000 banknotes would cease to be legal tender. The notification was issued on the recommendation of the Reserve Bank of India (RBI).

o The principal constitutional issue was whether Parliament had validly delegated such extensive power to the Executive under Section 26(2), or whether such a far-reaching economic decision required a separate Act of Parliament.

• Vivek Narayan Sharma v. Union of India (2023): A Constitution Bench of the Supreme Court upheld the demonetisation decision by a 4:1 majority.

What is the Significance of Delegated Legislation?

Delegated legislation has become an essential instrument of modern governance by enabling efficient administration while allowing Parliament to focus on broader legislative policies.

• Promotes Efficient Governance: It enables the Executive to frame detailed rules for implementing laws, ensuring smooth and effective administration.
• Facilitates Expert Decision-Making: Technical matters relating to finance, environment, health, telecommunications and digital governance are better regulated by specialized authorities.
• Enables Quick Response During Emergencies: : Modern welfare schemes require continuous rule-making and frequent modifications, which delegated legislation facilitates efficiently.
• Promotes Uniform Implementation: It ensures consistent application of legislative policies through detailed operational rules and standardized procedures across the country.

What are the Criticisms and Issues Related to Delegated Legislation?

Despite its administrative utility, delegated legislation has attracted criticism for expanding executive law-making at the cost of parliamentary supremacy.

• Excessive delegated legislation weakens effective parliamentary scrutiny despite oversight by the Committee on Subordinate Legislation.
• Law-making by unelected executive authorities reduces democratic accountability and parliamentary control.
• Frequent amendments to rules, notifications and circulars create legal uncertainty and increase compliance costs.
• Ambiguous or excessive delegated legislation results in increased constitutional litigation, adding to the burden on the judiciary.

Way Forward

• Strengthen the Committee on Subordinate Legislation with greater institutional support and ensure timely and rigorous scrutiny of delegated legislation.
• Clearly define the objectives, scope and limits of delegated powers in parent legislation to prevent excessive delegation.
• Institutionalize stakeholder consultation by placing draft rules in the public domain before their final notification, except in genuine emergencies.
• Ensure robust judicial review through the consistent application of the doctrines of ultra vires, reasonableness, proportionality and natural justice.

Conclusion

Delegated legislation is an indispensable component of India's modern administrative and regulatory framework, enabling the State to respond efficiently to complex and evolving governance challenges. However, its legitimacy depends upon clear legislative guidance, effective parliamentary scrutiny, transparency and robust judicial review. Maintaining an appropriate balance between administrative efficiency and democratic accountability is essential to preserve the constitutional principle that law-making ultimately remains the responsibility of the Legislature.

FAQs

Q1. What is delegated legislation?
Ans. Delegated legislation is law made by the Executive or other authorities under powers delegated by the Legislature through a parent Act.

Q2. Can Parliament delegate its essential legislative function?
Ans. No, Parliament cannot delegate its essential legislative function of determining legislative policy and principles.

Q3. Which landmark case established the doctrine against excessive delegation in India?
Ans. In Re Delhi Laws Act (1951) established that essential legislative functions cannot be delegated.

Q4. Which Act empowered the Government to issue the 2016 demonetisation notification?
Ans. Section 26(2) of the Reserve Bank of India Act, 1934.

Q5. What is the primary purpose of delegated legislation?
Ans. To enable efficient, flexible and expert implementation of laws while allowing the Legislature to focus on policy-making.