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Empowering Efficiency: Unraveling the Dynamics of Delegated Legislation

Delegation of legislation a concept which we see on a daily basis in functions of each and every administrative activity. On a daily basis an act of asking your friend to perform a duty instead of you also falls under the category of delegation of work. In order to understand the concept of delegation of legislation through administrative law point of view I am writing this article. Delegation of legislation has its own set of pros, corns and importance which are explained in this article.

The term "delegated legislation" is often associated with a broad range of misconceptions. It functions as a rationale for the legislators, a safeguard for the administrators, and a test for constitutional purists. Declaring a position on the discussion around delegated legislation is straightforward. In a society where social, economic, technical, psychological, and administrative advancements beyond the spacious and peaceful traditional legislative principles and processes, it is widely recognised as a requirement and deemed essential. Politicians condemn it as a transfer of power and a way for them to avoid taking responsibility, which is expected of them by democratic people. [1]

The Parliament assigned these responsibilities to the legal authorities due to their inability to independently manage every aspect of the government structure. Statutes, sometimes referred to as delegated legislations, specifically refer to this act of delegation.

For example, regulations and by-laws are rules that are issued by municipal authorities and are applicable exclusively within their authority, as defined by legislation.

In accordance with the conventional notion, the primary responsibility of the executive is to enforce the laws enacted by the legislature. In an ideal state, only lawmakers who are accountable to the citizens should have the authority to exercise legislative power. However, a prevalent trend in all democracies at present is that only a fraction of the overall legislative output is directly produced by the legislature.

A significant portion of legislation is passed by the executive as a delegate of the legislature and is referred to as "Delegated legislation" despite the fact that the executive also executes different legislative and judicial activities in addition to "Pure" administrative.[2]

According to principle, only parliament has the ability to enact laws in England. However, if one were to look at the legislative process, one would see that, in addition to the common law and statute law, the law of land also includes a significant amount of what might be described as subordinate or delegated legislation, which is really made by the government and subject to parliamentary control. It comprises orders in council, departmental circulars, rules, regulations, plans, ordinances, etc. made in the course of the exercise of legislative powers.

Even in the US, where the idea of delegated legislation has not been accepted in theory under the doctrine of separation of powers, administrative law has expanded swiftly as a consequence of the legislature delegating the executive legislative power for a variety of reasons.[3]

History Of Delegated Legislation

Without a doubt, delegated legislation has expanded significantly in the twentieth century in nearly all legal systems throughout the world. But, that does not indicate that it is a recent phenomena or that the Legislature and President have never before delegated legislative authority to one another. Legislative authority has been delegated ever since statutes began to be written by Parliament. The statute of 1337 featured a clause that made exporting wool unlawful unless it was allowed by the King and his Council.[4]

Henry VIII Clause was utilised a lot in the fifteenth and sixteenth century. The 1531 Sewers Act provided Commissioners the right to create laws, modify them, repeal them, and re-enact them, as well as to issue decrees and collect taxes. As a result, the Commissioners used to exercise their legislative, administrative, and judicial functions concurrently. The Crown now has the ability to create laws for the Army without the help of Рarliament owing to the Mutiny Act of 1717. Due to social and economic upheavals in the nineteenth century, delegated legislation greatly increased in frequency. The productivity of delegated legislation by the executive in the 20th century is significantly greater than the output of enactments by a functional legislature.[5]

Reasons For Growth Of Delegated Legislation:
In every contemporary democratic State, delegated legislation is rapidly expanding due to a variety of circumstances. Long ago, the state's role was no longer limited to enforcing the law, preserving the public peace, and defending its borders. As outlined in parts III and IV of the Constitution, the state's functions are now secure and serve its citizens' interests. Intense legislative effort is motivated by the desire to accomplish these goals. Every State has abandoned the conventional laissez faire philosophy, and the former "police state" has evolved into a "welfare state." Its functions have expanded as a result of this significant shift in the thought on the role that the state should play.
  1. Constraints on legislative time:
    • The state's role has evolved from enforcing the law to serving citizens' interests.
    • Delegated legislation allows the executive to add rules, regulations, and bylaws to fill in the specifics of the policy.
  2. Technicality:
    • Delegated legislation is useful when the subject matter is complex, allowing experts to address technological issues.
    • Legislative modifications are often lengthy and laborious, but delegated legislation allows for immediate response to unforeseen events.
  3. Adaptability:
    • It is difficult to anticipate every contingency at the time that a legislative legislation is passed, so some provision must be made for these unforeseen events necessitating immediate response.
    • A legislative modification is a long and laborious procedure, but with the use of delegated legislation, the administration can respond quickly to situations, such as bank rates, export and import policies, foreign exchange, etc. Several statutes contain a "removal of difficulty" language that allows the administration to do so by using the power that has been granted to it.
  4. Experiment:
    • Delegated legislation allows the executive to use experience and implement necessary modifications in the application of provisions.
    • This allows for the use of prior experience and the implementation of necessary adjustments.
  5. Emergency:
    • Delegated legislation is the only practical solution in times of war, national emergencies, epidemics, floods, inflation, and economic downturns.
  6. Contemporary administrative complexity:
    • The complexity of modern administration necessitates the use of new types of laws and broad powers to various agencies.
    • The practice of giving the administration the authority to enact legislation within set boundaries has developed due to pragmatism and practical requirements of the modern welfare state.

Types of Delegated Legislation:

Title-based classification:

  • Delegated legislation can be in various forms such as rules, regulations, bye laws, notifications, schemes, orders, ordinances, or directions. It includes rules of procedure, substantive law rules, and government decisions, orders, and acts. "Rule" refers to the exercise of power granted by the enactment.[12]

Classification based on discretion:

  • Conditional legislation grants control only when a specific administrative authority finds specific circumstances in the act. It requires a fact-finding process, unlike discretionary legislation used for subordinate legislation. Conditional legislation grants the executive discretion to implement the act upon satisfaction of specific conditions. It is not subject to challenge due to excessive delegation, unlike delegated legislation which confirms legislative authority on external authorities.[13]

Authority-based categorization (Sub-delegation):

  • Sub-delegated legislation refers to the authority assigning additional rule-making power to another subordinate authority, typically not permitted unless authorized by the enabling Act. This principle is not applicable if the authority transfers its powers while maintaining control.[14]

Classification based on nature:

  • Normal delegation:
    • Favourable if enabling Act specifies delegation boundaries.
    • Negative if authority doesn't extend to policy legislation or specific actions.
  • Outstanding delegation:
    • Ability to alter Parliamentary Acts, legislate on principle, grant broad discretion.
    • Enact laws without legal repercussions.

Classification based on purposes:

  • Enabling Act: Executive authority to choose the day of effect.
  • Extending and Applying the Act: Acts can be extended and applied to specific territories or time periods.
  • Dispensing and Suspending Acts: Administrative authority can grant exemptions from Act provisions.
  • Alteration Acts: Authority to modify or amend Acts is only permitted for consequential changes.
  • Taxing Act: Legislative branch must establish the policy of the taxation statute.
  • Additional Acts: Authority to enact regulations to carry out Act's objectives.
  • Approving and Sanctioning Acts: Authority to approve rules formulated by another authority.
  • Acts Classifying and Setting Standards: Administrative authorities set standards for purity, quality, or suitability.
  • Punishment for Act Violation: Administrative authorities can impose penalties for rule violations.
  • Explicitly State the Terms of the Statute's Act: Administrative authority can provide interpretation of enabling Act terms.

Delegated legislation Advantages:

  • The legislature is granted a specified length of time to adopt legislation on all topics. It lacks the time necessary to thoroughly enact the legislation.
  • Lack of specialisation: The legislature lacks awareness of complex technical challenges. After erecting a structure, the work is entrusted to the government organisation with the needed expertise.
  • Crisis circumstances: In the case of a local or international emergency, the legislature lacks the knowledge to provide a speedy response.
  • Complicated conditions: Due to the complexity of contemporary administration, laws must pay greater attention to encompassing topics such employment, health, education, regulating commerce, etc.

Disadvantage of Delegation of Legislation:

  • Excessive delegation will decrease the legislature's capacity to regulate legislation. The legislature loses importance as a result.
  • Making laws by members of the executive branch who are not elected goes against the democratic character.
  • There isn't much discussion on delegated legislation. This will put an end to the review that the legislature normally undertakes before approving laws.
  • The legislature is in responsibility of adopting laws in line with the notion of separation of powers. Excessive delegation is in opposition to this concept.

Demonetization and the Issue of Delegation Рower:

  • In connection with Section 26(2) of the Reserve Bank of India Act, 1934, the Union government has the right to proclaim that a given currency denomination is no longer considered as legal tender.
  • At the Central Board of RBI's recommendation, the centre proclaims through publishing in the Indian Gazette that any series of bank notes, regardless of denomination, shall no longer be accepted as legal tender as of a particular date.
  • The RBI Act, which was approved by Parliament, grants the central government the power to alter the features of legal tender.
  • The centre used its jurisdiction to issue a gazette notification that laid the legal groundwork for the demonetization process.

Major Case Laws Of Delegated Legislation

  • D.S. Grewal v. The State of Рunjab:
    • The appellant, a Superintendent of Police, was demoted to Assistant Superintendent of Police in 1957 and moved to Dharamsala in 1955.
    • He was subject to disciplinary action under Rule 5 of the All India Services (Discipline and Appeal) Regulations, 1955.
    • He filed an application with the Punjab High Court under Article 226 of the Indian Constitution, objecting to the Act's lawfulness and the investigation.
    • The Supreme Court Justice K.N. Wanchu ruled on Article 312's power for delegated legislation.
    • The Central Government initiated an investigation due to the potential removal or forced dismissal of the appellant.
    • Article 312 of the Indian Constitution does not mention removing the authority to delegate.
    Panama Refining Co. v. Rayan:
    • The President of the US has authority under Section 9(c) of the National Industrial Recovery Act of 1933 to issue orders.
    • The President used his executive authority to enact the act's restriction and granted the Interior Security Department permission to use all powers.
    • The Security of Interior published a regulation to carry out the President's directive, which was challenged as an unlawful delegation of legislative power by Congress.
    • The Supreme Court ruled that Congress can only grant Executive power under two circumstances: established by the Statute and setting parameters for subordinate regulation.
    Sikkim v. Surendra Sharma:
    • The Directorate of Survey and Settlement of the Government of Sikkim advertised temporary positions in India.
    • Applicants applied for these positions, and some were appointed.
    • Some employees were dismissed after survey work ended.
    • Non-Sikh employees filed a writ suit in 1982, arguing they were dismissed as outsiders.
    • The court ruled that firing employees for non-local reasons is illegal under Articles 14 and 16.
    • The 36th Constitutional Amendment added this article to the document.
Parliamentary oversight is crucial for maintaining the effectiveness of delegated legislation in the USA, India, and the UK. The Enabling Act grants permission for delegation, and the council creates general rules. To improve parliamentary oversight in India, committees must be improved, and a distinct statute like the Statutory Instruments Act should be created. The UK's laying off system is less effective in India, but scrutiny committees have been successful in reviewing and improving delegated legislation. The judiciary favors delegated legislation, but the constitutionality of rule-making power is essential to prevent administrative uprisings. Delegated legislation must be introduced in a modern world with technicality, viability, and experiments.

The Enabling Act grants permission for delegated legislation, which is passed by a parliamentary act. To maintain parliamentary oversight, the role of committees must be improved and a distinct statute, such as the Statutory Instruments Act, created. The Select Committee on Statutory Instruments ensures uniform laying and publication procedures. In India, the control is less effective than in the UK, where administrative rules are scrutinized through the laying off system. The judiciary favors delegated legislation, requiring constitutionality of rule-making power to prevent administrative uprisings. Delegated legislation is necessary for modern, technical, and viable systems, requiring constitutionality to ensure its implementation.

References and Bibliography:
  • Reserve Bank Of India Act 1934
    Enforcement Date: 06-03-1934
    Section 26
    Act Number: 02
    Short Title: The Reserve Bank of India Act, 1934
    Act ID: 193402
  • EBC Administrative Law by I.Р MASSEY
    Рublisher: EBC Рublication
    2020 Edition 9th Reprint
    Author: I.Р MASSEY
Journal Article
  • Jstor:
    Title: Delegated Legislation
    Author: Р. B. Mukharji
    Source: Journal of the Indian Law Institute
    Рublished by: Indian Law Institute
    Stable URL:
  • Title: Delegation Of Legislative Рower In India
    Author: C. H. Alexandrowicz-Alexander
    Source: The American Journal of Comparative Law
    Stable URL:
  • Title: Delegation Of Legislative Рower
    Source: Columbia Law Review
    Stable URL:
Hein Online
  • Title: Delegated Legislation And Publication
    Рublished By: Hein Online
    Stable URL:Рage?handle=hein.journals/modlr37&div=49&id=&page=
Case Laws
  • D. S. Garewal vs The State Of Рunjab And Another on 11 December, 1958, 1959 AIR 512, 1959 SCR Supl. (1) 792
  • Рanama Refining Co. v. Rayan, 293 US 388 (1935)
  • State Of Sikkim vs Surendra Рrasad Sharma on 19 April, 1994, 1994 AIR 2342, 1994 SCC (5) 282
  1. P. B. Mukharji, Delegated Legislation, Jstor , July, 1959, Vol. 1, No. 4 (July, 1959), pp. 465-492.
  2. Delegated Legislation and Publication , Hein Online 37 Mod. L. Rev. 510 (1974).
  3. C. H. Alexandrowicz-Alexander, Delegation of Legislative Power in India, 1954, Vol. 3, No. 1 (Winter, 1954), pp. 72-79.
  4. Delegated Legislation and Publication, Supra 2.
  5. Delegated Legislation and Publication, Supra 2.
  6. LP, Messy , Administrative law, 19th edition
  7. LP Messy , Supra 9
  8. LP Messy, Supra 10 .
  9. LP Messy, Supra 10.
  10. LP Messy, Supra 10.
  11. LP Messy, Supra 10
  12. P.B. MUKHARJI , Supra 1
  13. P.B. MUKHARJI , Supra 1.
  14. P.B. MUKHARJI , Supra 1.
  15. P.B. MUKHARJI , Supra 1.
  16. P.B. MUKHARJI , Supra 1.
  17. LP Messy, Supra 10.
  18. LP Messy, Supra 10.
  19. INIDAN Express News paper article, Demonetization and delegation of power
  20. D. S. Garewal vs The State Of Punjab And Another on 11 December, 1958, 1959 AIR 512, 1959 SCR Supl. (1) 792
  21. Panama Refining Co. v. Rayan, 293 US 388 (1935)
  22. State Of Sikkim vs Surendra Prasad Sharma on 19 April, 1994, 1994 AIR 2342, 1994 SCC (5) 282
Written By: Spandana V Sudheer, 4th year BBA LLB student - UPES School Of Law

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