Delegated Legislation – Pain or Gain??

Advocate Khanjan Kamdar

INTRODUCTION:

“State” is an artificial person having enormous power. Like any other artificial entity, state also needs the help of human agents to function. These human agents working on behalf of state are called as “Government”. In federal nations like India, the Government is divided in to 3 organs having a tri-partite system comprising of –

The Theory of Separation of Power promulgated by Montesquieu states that, the responsibilities and power of these branches of government should be kept separate from each other without any kind of interference. However, broadly speaking, their categorical roles can’t exactly be confined into a water tight compartment. Practically, it is very difficult to draw a demarcating line among their jobs with an ideal mathematical perfection.  There is an absolute possibility that one organ may exercise incidental functions of other. So, there surely is some level of overlapping of activities among them.

One of the biggest and most common examples of the same is “Delegated Legislation”. It is very tricky to describe the precise and exact definition of Delegated Legislation. However, in common parlance, it can be explained as: “Making laws is a basic function assigned to the Legislature. But due to time crunch and extreme complexities of system, legislature is occasionally unable to make all the laws that are needed, in time. Hence many a times, it delegates this power to executive or judiciary. Thus even though law-making isn’t the core function of executive or judiciary, still delegated legislation has the same legal standing as the Act of Parliament.”

In other words, ‘Any laws in the form of rules, regulations or bye-laws made by any authority subordinate to legislature, in lieu of function assigned by the legislature itself is known as Delegated Legislation.’

TYPES:

Delegated Legislation can be categorized into different types. Following are to name a few –

(1) Skeleton Legislation :

In this type of legislation, the Parliament/State Legislative Authority (SLA) prepares broad law and leaves the details to be filled by the local authorities like Municipalities, Local Boards, Panchayats etc.

(2) Power to Impose Tax :

This is a fundamental legislative function. It is not only the method of raising revenue but also a means for social control. So, delegation of ‘power to impose tax’ is technically invalid as it is required to be performed by the legislature only. However, courts have held a few methods of delegation in taxation legislation as ‘constitutional’ by way of harmonic interpretation of statutes.

(3) Conditional/Contingent Legislation :

Here, the subordinate authorities are neither delegated to legislate; nor are they required to use their discretionary powers. Their only duty is to determine whether the law declared by the legislature will become effective or not, subject to fulfillment of certain conditions.

(4) Sub -Delegation :

In sub-delegation, a delegate further delegates the power conferred to him. If the work assigned by the statute to the executive authority is known as Delegated Legislation, then, in the similar fashion, further delegation made by the administrators to its subordinate authority sums up to be Sub-Delegation.

(5) Henry VIII Clause/Exceptional Delegation :

Henry VIII was a monarch of England. He was known for his despotism. Therefore, under this clause, very wide powers were given to the administrative agencies to modify the statute as per the given need and circumstances. However, later it was classified as unconstitutional and autocratic.

CLASSIFICATION:

BENEFITS:

Recently, the importance of Delegated Legislation has increased many folds. Delegated Legislation is considered as more convenient than that of State Legislation especially at the time of unforeseen crisis or emergency situations. Since ‘quick-action’ in the form of new laws is needed urgently, delegated legislation serves to be much of a simpler, quicker and more flexible method than that of the standard lengthy procedure of legislature. Also it becomes very useful as it can be amended without any strict and prescribed time consuming process. This “experimental nature” of secondary legislation facilitates the appropriate authorities to bring necessary changes in the application of provisions, as per the changing requirements. The legislators might be good at giving suggestions on the topic, but they may not be the best experts to deal with the technical subject matter. Executive body is that organ of tri-partite system, which looks after the regular day-to-day administration of the state. Thus, they have the required expertise as well as adequate field experience to deal with the burning issues faced by the state. As the Parliament is supposed to make laws for everyone from womb to tomb, it just formulates the policy on general basis like in the form of a skeleton and it is the executive authority, which fills in the details. This way some of the burden from legislature is transferred to other organs of the system. Apart from these, maintenance of secrecy with respect to laws can also prove to be a contributory factor towards the inevitability of Subordinate Legislation.

CRITICISMS:

However, along with all the notable perks, the package does come with few discrepancies as well. If too many laws are made by unelected people, then the spirit of democracy can be greatly compromised. The trust of people on the functioning of the Government may be jeopardized to a large extent. Apart from these, if legislators aren’t considered the best experts to deal with the technical matters, so aren’t the bureaucrats! They are good just with regards to daily functioning of system. But over technical and complex matters such as IT, medicine etc., they too require expert opinion on the same to make the final call. Besides, this path often leads to the exploitation of powers conferred to the executive or judiciary authority, consequences of which, ultimately, has to be suffered by the general public. Blatant misuse of delegated legislative powers can end up curtailing individual liberty and injustice thereof. Lack of statutory control eventually might as well result in tyranny & inconsistencies of law.

In the case of [1]Krishna Mohan (P) Ltd. v/s. Municipal Corporation of Delhi 2003 7 SCC 151, the questions involved were –

♦ Whether the cost of plant and machinery installed in or upon a building is includible for the purpose of arriving at the rateable value of the building?

and

♦  Whether Section 116(3) of the Delhi Municipal Corporation Act, 1957, vests arbitrary and uncontrolled discretion in the Commissioner and hence is invalid for excessive delegation of legislated powers?

Here, the bye-laws made were challenged as ultra vires the delegated powers of legislation of the Corporation. However, the respondents contended that municipal legislation must be progressively interpreted. As long as the guidelines of exercise of delegated power are discernible in the statute, it cannot be held to be unconstitutional, however skeletal the parent legislation may be. And besides, the discretion can be exercised only with the approval of Standing Committee. As a result, exercise of discretion by the Commissioner is not subject to any appeal to a higher authority.

Later, it was cited in the judgement that, ‘the legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. The delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. Thus, Section 116(3) is declared invalid.’

CONCLUSION:

Delegated legislation undoubtedly empowers the subordinate authorities to alter or modify the sanctions given under a statute; but this system is also subject to many criticisms. However, these deviations can be mended with the help of following measures:

> Exercising the power of Judicial Review by superior authorities.

> Prevention of the vague & absurd terminologies used especially in acts conferring discretionary powers.

> Strict and precise interpretation of the text along with adding explanatory notes to the regulations.

> Proper publicity of laws etc.

In short, the bottom line is that all the efforts must be taken to defend violation of fundamental rights of an individual, since they must be in the utmost priority. Autocracy in democracy is totally unacceptable. Thus, if reasonable safeguards are taken to avoid the pitfalls, this system of delegated legislation can definitely prove to be thoroughly beneficial and ad rem.

[1] https://www.casemine.com/judgement/in/5609ade8e4b0149711412831