DELEGATED LEGIALATION

THEORETICAL OVERVIEW

The process by which a legislative body transfers some of its legislative jurisdiction to another authority or organization is referred to as delegating legislation, also known as secondary legislation or subordinate legislation. It involves entities other than the main legislative body, such as governmental departments, agencies, or local authorities, creating laws, rules, regulations, or orders.

In the governance and regulation of modern times, delegated legislation is essential. It enables effective and efficient law enforcement, adaptability in meeting particular needs, and adaptation to changing conditions. However, it is crucial to preserve a balance between democratic accountability and delegated powers in order to protect the fundamentals of the rule of law and guarantee effective checks and balances in the legislative process.

Legislative Delegation: In many legal systems, the main legislative body—such as a congress or a parliament—delegated its power to make laws to other entities or authorities. This delegation is normally made possible by a primary legislature-passed enabling or empowering act that specifies the range and bounds of the transferred authority,

Delegated legislation can take on a number of different shapes, including regulations, orders, bylaws, statutory provisions, administrative rules, and executive orders. These instruments have the force of law and are used to address specific details, technicalities, or ongoing regulatory needs within the framework established by the primary legislation.

RELEVANT SECTIONS/ARTICLES OF THE CONSTITUTION 

• Article 32: Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.
• Article 136: The Constitution of India under Article 136 vests the Supreme Court of India, the apex court of the country, with a special power to grant special leave, to appeal against any judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India.

• Article 226: gives High Courts the ability to issue instructions, orders, and writs to any person or authority, including the government. Whereas, Article 227 gives High Courts the power of superintendence over all courts and tribunals in the territory over which they have jurisdiction.

IMPORTANT CASE LAWS

• Lachmi Narain v. Union of India: In the case of Lachmi Narain v. Union of India, the court held “the notification issued by the Central Government is beyond its power conferred on it by Section 2 of the Union Territories (Laws) Act,1950 and in consequence of any type of notification issued by the Central Government is invalid and ineffective.”
• Re Delhi Laws Act case : In the case of Re Delhi Laws Act case, the Court considered the validity of a statute with respect to delegated legislation, the court held that “The Parliament can delegate its legislative power to any extent subject to the condition or limitation that it must not efface itself or abdicate its powers. The Parliament could not delegate to another agency its ‘essential’ legislative function, which implied policy formulation and enactment of policy it into a binding rule of conduct”. Currently there is limit on delegation of power and ancillary function can also be delegated. 
• Edward Mills V. The State of Ajmer: In the case of Edward Mills V. The State of Ajmer, the supreme court held that “the appropriate Government after giving by notification in the Official Gazette not less than three months’ notice of its intention to do so, may, by like notification, add to either part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, and there- upon the Schedule shall in its application to the State be deemed to be amended accordingly.”
• Inder Singh v. State of Rajasthan: In the case of Inder Singh v. State of Rajasthan the apex court held that, “The reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such an issue is best left to an executive authority”
• Air India v. Nargesh Meerza,:In the case of Air India v. Nargesh Meerza, “Air India, a state-owned company, required female flight attendants to retire under three circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The same rules were not applicable to male attendants. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination in violation of Article 14.

OTHER IMPORTANT CONCEPT 

Control of delegated legislation: The delegated legislation can be controlled in three ways: – 

1. Parliamentary or legislative control 
2. Judicial control 
3. Executive or Administrative control
4. PARLIAMENTARY OR LEGISLATIVE CONTROL:

Legislation is a function of the legislature in parliamentary democracy, and it is not only the right but also the duty of the legislature to monitor its agents’ performance. It is true that, as a result of delegation of power and general standards of control, judicial control has diminished and shrunk in scope.

It is further divided into two parts:

1. Direct Control: Laying is an important and necessary aspect under direct control, and it is laid down as required, which means that after making the rule, it should be presented to Parliament. It is divided into three parts based on the degree of control required. Laying is of three types:

• Simple Laying 
• Negative Laying 
• Affirmative Laying 

2. Indirect Control: Parliament and its committees exercise this control. Subordinate legislation is another term for this type of committee. The committee’s main task is to determine whether the rules are in accordance with the general purpose of the act. It precludes the court’s jurisdiction in direct or indirect ways. Whether or not it has a retroactive effect. Whether it protects or undermines the Natural Justice Principle. The expenditure is from the Consolidated Fund. 
3. PROCEDURAL AND EXECUTIVE CONTROL: Procedural control means that under the Parent Act, certain guidelines must be followed regardless of whether it is mandatory or not. 
4. JUDICIAL CONTROL: The rule of law was improved by judicial review. The court must ensure that the delegation of power falls within the parameters of the constitution. Judicial review is more effective because the court does not recommend but clearly overturns a rule that is ultra vires in nature. 

IMPORTANT LEGAL MAXIMS 

DELEGATA POTESTAS NON POTEST DELEGARI: Delegata potestas non potest delegari is a legal maxim which means  that “no delegated powers can be further delegated.” Alternatively, it can be stated delegatus non potest delegare (“one to whom power is delegated cannot himself further delegate that power”)

POINTS TO REMEMBER 

• Delegated legislation makes the legislative process more adaptable and effective. In their particular fields of competence, it enables specialised bodies or authorities to develop in-depth laws and regulations. Additionally, it enables quicker answers to situations that are changing, technology developments, or new problems that need to be addressed right away.
• Delegated legislation is subject to certain restrictions and safeguards in order to preserve its legality and stop the abuse of authority. The scope of the authorising act must be adhered to, the authorities conferred must not be exceeded, and the values and goals of the original law must be upheld by the delegated legislation. The legitimacy and appropriateness of delegated legislation is also supported by judicial review and legislative oversight procedures.
• While delegated legislation permits the creation of specific, technical rules, it’s crucial to uphold democratic accountability. The primary legislative body should exert oversight to make sure that the delegated authorities stay within the confines established by the empowering act. The primary legislative body retains ultimate responsibility for the delegated powers.