DELEGATED LEGISLATION

[Dr. Sanjiv Agarwal]

This article covers interpretation in relation to delegated legislation i.e., the legislation derived from the main statute in the form of rules notified under various provisions of the law describing manner, procedure and guidelines etc., notifications issued under the law, circulars etc.

Meaning of Delegated Legislation

P. Ramanatha Aiyar’s Advance Law Lexicon (Fourth edition) explain the meaning and scope of ‘delegated legislation’ in the following words:

Delegated legislation is legislation made by a person or body other than the Sovereign in Parliament, by virtue of powers conferred either by statute or by legislation which is itself made under statutory powers.

Rules regulations and bye-laws made by the executive in exercise of the powers conferred under a law. Delegated legislation is permissible if the law lays down the policy of the law to guide the executive in framing delegated legislation. Unless the law expressly permits it, a person to whom powers are delegated cannot further delegate his powers to another person; the exception to this rule is that purely ministerial acts can be further delegated.

It is a fundamental principle of Constitutional Law that everything necessary to the exercise of a power is included in the grant of the power. A legislature cannot strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure. THE EDWARD MILLS CO. LTD., BEAWAR, AND OTHERS VERSUS THE STATE OF AJMER AND ANOTHER - 1954 (10) TMI 39 - SUPREME COURT [Constitution of India, Art. 245]

Further, following pronouncements are relevant in this regard:

Power of Executive Authority to make rules is delegate legislation but law cannot be changed in its essential features. [RAJNARAIN SINGH VERSUS CHAIRMAN PATNA ADMINISTRATION COMMITTEE PATNA - 1954 (5) TMI 26 - SUPREME COURT]

When the delegate is given the power of making rules and regulations, in order, to fill in the details to carry out and sub-serve the purposes of the legislation, the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed is an exercise of 'Delegated Legislation'. CHANDRAKANT MULJIBHAI PARIKH VERSUS STATE OF GUJARAT - 2001 (2) TMI 1058 - GUJARAT HIGH COURT [Constitution of India, Art. 245].

In a delegated legislation only some broad principles and policy are laid down and the details are to be filled up by the delegate namely, the State Government. Thus, when the law authorises the State Government to frame rules for carrying on the purposes of the Act, those that are not framed are under delegated powers, and it is only when those rules are framed that the Act becomes complete. [RAGHUNATH PANDEY AND ORS. VERSUS STATE OF BIHAR AND ORS. - 1981 (9) TMI 305 - PATNA HIGH COURT]. [Constitution of India, Art. 245].

Forms of Delegated Legislation

There are different forms of delegated legislation and are known by different names. Such delegated legislation may be known as:

• Rules 
• Regulations
• Orders
• Directions
• Guidelines
• Scheme
• Notifications
• Circulars
• Bye-laws

Delegated legislation cannot be issued unless there is an enabling provision in the main statue itself.

Gist of Judicial Assertions drawn from judicial pronouncements

Following points are important in respect of delegated legislation:

1. Delegated legislation can be issued only if the statute empowers it.
2. Generally, legislations in India have powers of delegation. The delegated legislation cannot exceed the power over and above of what is prescribed in law.
3. Delegated legislation cannot go beyond the legislative policy. The legislature cannot delegate un-control power.
4. What is permitted is the delegation of ancillary or subordinate legislative functions.
5. Delegated legislation cannot create a parallel legislature.
6. Statute cannot delegate its power to repeal a law or to modify a law.
7. Declaration of a legislative policy by the legislature itself is an essential condition to sustain delegated legislation.
8. Delegated legislation is open to the scrutiny of courts and may be declared invalid particularly on two grounds :

1. Violation of the Constitution; and
2. Violation of the enabling Act.

9. The limitations which apply to the exercise of administrative or quasi-judicial power conferred by a statute except the requirement of natural justice also apply to the exercise of power of delegated legislation.
10. Delegated legislation which is really legislative in character cannot be questioned for violating principles of natural justice in its making except when the statute itself provides for that requirements.
11. Subordinate legislation should be in conformity with the constitution and the enabling Act.
12. Power may be conferred to make subordinate legislation in the shape of rules, bye laws etc., which have retrospective operation.