• Delegation of powers means the powers passed on by the higher authority to the lower authority to make laws. Delegated legislation means the powers given by the legislature to the executive or administration to enact certain laws. The simple meaning of the expression “delegated expression” may be: When the function of the legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses:

(a) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or

(b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature.”

• The concept can be further substantiated with the help of an example. The Parliament of UK itself made the Road Traffic Act, 1930, and so the legislation is original (rather than delegated). Section 30 of that Act provides that, “the Minister [of Transport and Civil Aviation] may make regulations as to the use of motor vehicles, their construction and equipment.” Accordingly, the Minister made the Motor Vehicles (Construction and Use) Regulations, 1955. The regulations were made by someone other than Parliament and are, therefore, delegated (rather than original) legislation.
• Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purpose laid down in the Act.

Types of Delegated legislation

1. Power to bring an Act into operation: -eq: on rule date on the Govt. by notification in the Gazette. Example: on such date as the government by notification in the gazette because govt. has better knowledge of the practical exigencies of bringing the law into force. The Court Cannot Ask the Govt. to bring the law into force. It was held inA.K. Roy. v. UOI AIR 1982 SC 710where the constitution of the Advisory Board was in question and the term qualified to be a High Court judge changed to actual or had been a High Court judge. National Security Act. 1980 did not have this provision it was held by that the court cannot ask the Govt. to implement.
2. Conditional Legislation: -The legislation makes the law but leaves it to the executive to bring the act into operation when conditions demanding such operation are obtained.

(a) To bring an act into operation.

(b) To extend the application of any act in force in one territory.

(c) To extend or to except from the operation of an Act certain categories of subjects or territories.

Need

• Limited time of Legislature: Legislature has limited time to make laws on each and every matter. It does not have enough time to enact the laws in detail.
• Lack of speciality: Legislature has a limited speciality in the case of technical details. After making a structure, the job is delegated to the government department having expertise.
• Emergency situation: In case of internal or external emergency, the legislature is not equipped with the skills of providing an urgent solution.
• Complex conditions: Modern administration is complex, which requires additional focus on holistic issues such as employment, health, education, regulating trade, etc. while making laws.

Criticisms

• Degrade legislative control: Excessive delegation will remove the legislative control over the law-making process. This reduces the importance of the legislature.
• Violate principles of democracy: Unelected members of the executive making laws go against the spirit of democracy.
• Lack of discussion: Delegated legislation does not involve detailed discussions. This will remove scrutiny provided by the legislature during normal law-making.
• Separation of power: Law-making is the domain of legislature based on the theory of separation of power. Excessive delegation goes against this theory.

Constitutional limits for delegated legislation

Various landmark decisions of the SC have enshrined the ‘constitutional limits’ of delegated legislation along with the tests for determining whether there is an ‘excessive delegation’ of legislative power. The SC has specified the following circumstances where a delegated legislation would be invalid:

• The delegated legislation violates any of the fundamental rights or violates any other provision of the Indian Constitution.
• The Rules / Regulations are ultra vires the provisions of the parent Act and fail to conform to the substantive provisions of the statute.
• The Executive did not have the legislative competence to frame the said rule or regulation.
• The delegated legislation exceeds the limits of the authority conferred by the enabling statute.
• A delegated legislation can also be struck down on the ground of manifest arbitrariness, and unreasonableness.
• The delegated legislation cannot provide for a retrospective operation unless expressly authorised by the parent statute.
• A delegated legislation cannot address substantive policy aspects. The SC has held that the Legislature cannot delegate its ‘essential legislative functions’ to the executive branch. Further, the determination of the ‘legislative policy’ and its formulation as a rule of conduct is an essential legislative function, which cannot be delegated to the executive.
• Excessive delegation power an issue - In a 1959 landmark ruling in Hamdard Dawakhana v Union of India, the Supreme Court struck down the delegation of powers on the grounds that it was vague. In this case, the Constitution Bench considered the validity of certain provisions of the Drug and Magic Remedies (Objectionable Advertisements) Act that prohibited advertisements of certain drugs for the treatment of certain diseases and dealt with the powers of search, seizure and entry. The Court held that the central government’s power of specifying diseases and conditions as given in the act is ‘uncanalised’, ‘uncontrolled’ and going beyond the permissible boundaries of valid delegation. Hence, the same was deemed unconstitutional.

Along with enunciating the legislative policy and the guiding principles, the parent statute should also provide the sphere within which a subordinate legislation can operate and cannot confer an unchecked power on the executive. 

Delegation of power in the demonetisation case

• The Supreme Court has upheld the Government of India’s 2016 decision on demonetisation.
• One of the key questions to decide for the Supreme Court was whether Parliament gave excessive powers to the Centre under the law to demonetise currency. The majority ruling upheld the validity of the delegated legislation but the dissenting verdict noted that excessive delegation of power is arbitrary.
• Section 26(2) of the Reserve Bank of India Act, 1934 essentially gives powers to the Centre to notify that a particular denomination of currency ceases to be legal tender.
• Here, Parliament, which enacted the RBI Act is essentially delegating the power to alter the nature of legal tender to the central government. The Centre exercised that power by issuing a gazette notification, which is essentially the legislative basis for the demonetisation exercise.

Looking ahead

• Parliamentary control over delegated legislation in India is not as effective, there are no statutory provisions regarding ‘laying’ of delegated legislation. It is necessary to strengthen the committees of the Parliament and a separate law providing for uniform rules for delegating powersbe enacted.
• Moreover, the citizens can ensure accountability and transparency in delegated legislation by staying informed about the laws and regulations being proposed and implemented by executive agencies and administrative bodies. They can alsoparticipate in public consultations and comment periods and hold the government accountable through their elected representatives.
• Additionally, the media can play a vital role in bringing attention to any issues with delegated legislation and providing a platform for public discourse.