Delegated legislation in administrative law (2023)

INDEX
Introduction
Importance of delegated legislation
Need for delegated legislation
Delegated legislation: Position under the Constitution of India
Criticism of delegated legislation
Degree

Introduction

The Constitution of India gives the legislature the power to legislate for the country. However, due to the diverse activities of a welfare state, it is impractical for the legislature to perform all functions.

In such cases, delegated legislation applies. Delegated legislation is the process by which the executive branch receives authority from the legislature to legislate to implement and administer the requirements of primary law.

While delegation of legislative power is necessary, maintaining control of the process is vital to avoid abuse of power.

Importance of delegated legislation

Delegated legislation, also known as secondary or derivative legislation, is legislation made by persons or bodies empowered by the legislature to make detailed regulations under a specific Act of Parliament.

The power of delegated legislation is based on an enabling act issued by the legislature. The Act gives the competent authority the power to make regulations under primary law.

Need for delegated legislation

Delegated legislation plays an important role in the entire legislative process in India. In fact, there are often more laws passed each year than parliamentary resolutions. This highlights its importance and impact on the country's legal framework.

  • One of the main reasons for the need for delegated legislation is the practicality of the legislative process. The legislature consists of elected representatives and is responsible for making laws and policies. However, given the diverse activities of a welfare state and the increasing complexity of social issues, it is not always possible for the legislature to regulate every detail and every key issue in primary law. Delegated legislation provides a mechanism for delegating certain legislative functions to the executive branch, allowing for the effective implementation and administration of laws.
  • Delegated legislation also ensures that laws are enacted by individuals or bodies with expertise and experience in specific areas. For example, local authorities may be empowered to enact legislation that takes into account the particular needs and circumstances of their particular area, rather than enacting uniform legislation that may not be appropriate for all communities. This decentralization of the legislative process encourages local decision-making and encourages more effective local governance.
  • Furthermore, delegated legislation is particularly valuable in emergency situations. It allows for quick action and immediate response without having to wait for specific laws to be passed by Parliament. This flexibility is vital in times of crisis, when quick decisions and actions are required to deal with unforeseen circumstances.
  • Another advantage of delegated legislation is that it can fill gaps in existing legislation or resolve situations not originally envisaged by Parliament. Societies and their needs evolve over time and delegated legislation provides the necessary flexibility to adapt to these changes. It allows the government or authorized bodies to introduce new regulations, amend existing regulations or repeal outdated legislation to ensure that the regulatory framework remains relevant and meets the changing needs of society.

Delegated legislation: Position under the Constitution of India

his caseD.S. Gerewal v. USA. Punjab-State, provided important clarity on the constitutional provisions relating to delegated legislation in India. emphasized thatArticle 312.ºThe principle of the Constitution of India regarding the power of delegated legislation does not limit the inherent power of delegation vested in the legislature.

The Court emphasized that the wording of Article 312 should not be construed as a rejection of the ordinary power of authorization normally vested in the legislature. This decision confirmed the importance of delegated legislation as a legitimate and recognized process for the effective functioning of the legislative system in India.

not validRaj Narain Singh v. Chairman, Patna Management Committee, Section 3(1)(f) of the Bihar and Orissa Act empowered the local government to extend certain provisions of the ActBengal Municipalities Act, 1884for Patna, with such modifications as may be deemed fit. The government specifically chose to implement Section 104 of the Act in Patna city after amendments.

A key aspect of the law was the provision that no municipality with the power to levy taxes could be imposed on a locality without giving its residents an opportunity to be heard and raise objections. However, the sections of the notification that provided for such a possibility of objection were deleted. The court held that this measure constituted an interference with the intended policy of the law.

his caseJ.K. Industries Limited v. Union of India,clarified the limits of delegated legislation. The Supreme Court emphasized that while legislatures have broad delegation powers, they cannot delegate unlimited or unchecked powers. Delegated legislation is limited by legislative guidelines and policies.

The court's decision in this case means that while the legislature can delegate its powers, it must do so in accordance with established legislative guidelines and guidelines. This ensures that the delegated authority does not have an unfettered discretion and acts within the limits set by the legislature.

Criticism of delegated legislation

Despite its advantages, there are also criticisms of delegated legislation.

Possible overlapping roles: Delegated legislation allows authorities other than the legislature to make and amend laws, which can lead to confusion and inconsistency in the legal framework. Multiple actors involved in legislation can lead to overlapping responsibilities and conflicting regulations.

Contrary to the democratic spirit:Delegated legislation is often criticized for giving unelected individuals or bodies the power to make and amend laws. This transfer of legislative powers bypasses the democratic process and raises concerns about the accountability and representation of those who make laws.

Insufficient parliamentary control:Delegated legislation is subject to less parliamentary scrutiny than primary legislation. The limited involvement of elected officials in the process raises questions about the adequacy of checks and balances. It can also lead to legislation being passed without thorough discussion and debate.

Lack of control and supervision:Due to limited parliamentary oversight, there is a lack of effective oversight and oversight of delegated legislation. This can lead to abuse of delegated powers and the passing of legislation that may not reflect the original intent of the legislature. Lack of adequate accountability mechanisms can undermine the democratic principles of transparency and accountability.

Lack of publicity and awareness:Delegated legislation often suffers from a lack of public awareness. The sheer volume of delegated legislation makes effective communication and dissemination of legislation difficult. This can lead to a lack of public awareness, which can lead to non-compliance or misunderstanding of legal requirements.

While delegated legislation offers advantages such as flexibility and expertise, it also has disadvantages. It is important to strike a balance between delegated powers and the need for transparency, accountability and public awareness in the legislative process.

Degree

Delegated legislation plays a critical role in dealing with the growing body of legislation and technicalities. However, it is important to maintain control over the delegation of authority to avoid potential abuses. Judicial review, along with legislative and procedural review, can help maintain the balance.

Delegated legislation can be challenged on grounds of substantive infringement of principles, constitutionality of the main statute and adequacy. With proper checks and balances, delegated legislation can be a useful tool for adapting to the changing needs of society while ensuring accountability and transparency.

References

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