Delegated legislation or subordinate legislation refers to all law making which takes place outside the legislature and is generally expressed as rule, regulations, orders, bye-laws, directions, scheme, etc.
The word subordinate legislation conveys the idea that the authority making the legislation is subordinate to the legislature.
However, delegated legislation is different from the executive legislation, where the executive may have law-making powers as vast and original as that of the legislature e.g. Ordinance-making power of President and Governors.
According to Mukherjee
“Delegated Legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists……..
As stated in Halsbury’s Laws of England, “when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the Legislature it is called “subordinate legislation”.
According to the Committee on Ministers’, Powers,
the expression “delegated legislation” is used in two senses. In one sense delegated legislation means the exercise of power of rule-making delegated to the Executive by the Legislature. In the other sense, it means the output of the exercise of that power.
Need for delegated legislation or Factors Leading to the Growth of Delegated Legislation:
Delegated legislation is not an isolated phenomenon. Numerous factors are responsible for its growth. The traditional theory of ‘laissez faire’ has been given up by every state and the old ‘police state’ has long ceased to regard its role in the social and economic life of the community as that of a ‘glorified policeman’ and now has become a welfare state. Because of such a radical change in the philosophy as to the role to be played by the State, its functions have tremendously increased in promoting the welfare of its citizens from cradle to grave. Consequently, delegated legislation has become indispensable. As stated by the Committee on Ministers’ powers the following factors are responsible for the rapid growth of delegated legislation at large scale:
- Pressure upon Parliamentary time : As there is phenomenal increase in functions of state, the bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature passes skeleton legislation containing general policy and empowers the executive to fill in the details, “thus giving flesh and blood to the skeleton so that it may live by making necessary rules, regulations, bye-laws etc. Lawmaking is not a turn key project, readymade in all detail and once this situation is grasped the dynamics of delegation easily follows.
The Committee on Ministers’ Powers has rightly remarked:
“The truth is that if Parliament were not willing to delegate law-making power, parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.”
Sometimes, the subject-matter of legislation is of a technical nature and requires consultation of experts. Members of Parliament may be best politician but they are not experts to deal with highly technical matters which are required to be handled by experts. in such cases the legislative power may be delegated to experts to deal with the technical problems. Legislation concerning atomic energy, nuclear energy, gas, drugs or electricity may be quoted as illustration of such technicalities.
Parliament does not function continuously. At the time of passing any legislative enactment, it is not possible to foresee all the contingencies. Therefore, power is necessarily required to be given to the Executive to meet the unforeseen contingencies or to adjust new circumstances arising frequently. While parliamentary process involves delays, delegated legislation offers rapid machinery for amendment. Police regulations and certain economic regulations relating to bank rate, import and exports, foreign exchange etc. are instances of such situations.
Ordinary legislative process suffers from the limitation of lack of viability and experimentation. Delegated legislation enables the executive to experiment. The method permits rapid utilisation of experience and implementation of necessary changes in the application of the provisions in the light of such experience. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand if they are found to be defective, the defects can be cured immediately.
In times of emergency, quick action is required to be taken. An emergency may rise on account of war, insurrection, floods, epidemics, economic depression and the like.
Legislative process is not equipped to provide for urgent solution to meet the situation. It is, therefore, necessary that executive must have power that may be used instantly. Delegated Legislation is the only convenient remedy.
- Confidential matters: In some situations, public interest demands that the law must not be known to anybody till it comes into operation. Rationing schemes or imposition of import duty or exchange control are such matters.
- Complexity of modern administration: Owing to the complex structure of society, modern administration has become complex. It is assuming more and more responsibility in promoting the welfare of the citizens, supervising their health, education and employment, regulating trade, industry and commerce; and providing a great variety of other services. In this way the complexity of modern administration and the expansion of the functions of state of socio-economic sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various agencies on suitable occasions. It is necessary that administration should be given ample power to implement socio-economic policies so that immediate action can be taken. By resorting to traditional legislative process, the entire object may be frustrated by vested interest and the goal may not be achieved at all.
CRITICISM ON DELEGATED LEGISLATION
Following are the criticism of delegated legislation:
- Delegated legislation results in overlapping of functioning as the delegated authorities get work to amend the legislation that is the function of the legislators.
- It has been a matter of question that if the Legislature control has come down after the arrival of the delegated legislation.
- Unelected people cannot make much delegated legislation as it would be against the spirit of democracy.
- After getting too much power from the Legislature, the Executive has encroached upon the domain of legislature by making rules and regulations.
- The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment. Parliament, along these lines, has an absence of authority over appointed enactment, and this can prompt irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners which Parliament had not foreseen when it was given the power through the Act of Parliament.
- Delegated legislation makes laws without much discussion. So, it may or may not be better for the public.
- Designated legislation by and large experiences an absence of exposure. Since the law made by a statutory authority not informed to general society. Then again, the laws of the Parliament are generally broadcasted. The purpose of the absence of exposure is the enormous degree of enactment that is being assigned. There has likewise been concern communicated that an excess of law is made through appointed enactment.
- It can possibly be misused for political gain. The executive makes law according to what the political parties. Hence, it results in the misuse of the legislation made by the Executive by the ruling party.
- Executives become too powerful as it already has the power of executing any laws and legislation and now the Legislature is delegating its legislative power to the Executive. So, both the power are in the hands of the executives now he can use this power in whatever way he wants to use it.
- It is against the theory of the power of separation which has been given by the famous political thinker Montesquieu.