LegumVox

AN INSIGHT INTO DELEGATED LEGISLATION AND ITS LOOPHOLES

Abstract
In this century, we have a tendency to square measure within the verse of globalization and modernization. As our Constitution has established a state and the state shall ordain on the embarrassment of activities lives and whereas legislation it ought to promote the ‘maximum happiness of the most variety of people’. 
This paper deals all regarding the tremendous enlargement of governmental activity are inevitable, it’s impracticable for the lawgiver from his lofty position to direct this big machine effectively. So, Delegated legislation has become a ‘living continuity as a constitutional necessity’.
Introduction
The concept has been recognized as one of the facets of Administrative law and the Administrative law has become a very necessary element of the developed society, as the relationship between the administrative authorities and the people are becoming complex in nature and for the effective regulation some laws have become the prerequisites to bring regularity or to check the misuse of powers vested in the administration and the promotion of the welfare state there is also a requisite of increase in the administrative functions of the country, which means the extension of the legislative and executive control for the efficient functioning and also with the passage of time it is not possible for the legislature alone to hold influence over entire arena, there is a need to delegate some functions to its subordinates or to the executive enabling them to take the cognizance of some matters by themselves. In the present instance we don’t need only effective policy-making body i.e., legislature rather we need faster implementation of such legislation too, there is a need of introduction of the concept of Delegated legislation through which the primary legislation will be implemented in its strict sense by issuing a summons against subordinate bodies which is the need of the hour. In the present scenario, Delegated legislation has become the most inevitable part of Administration as parliament is overburdened with the bulk of legislations if such a transition is not made then the main law-making machine will become standstill.
For the first time the concept of Delegated legislation is recognized as a legal principle in the case of Queen v. Burah, In this case, the Act in question (Act XXII of 1869) gave certain powers to Lt. Governor, the power to bring the act in effect, determine what laws were to be applicable and power to extend the application of the disputed act (i.e. Sec. 9). The act was made to remove Garo hills from the matter of civil and criminal courts and extend all or any provisions of the act in Khasi, Jaintia, and Naga Hills in Garo hills. The question was whether giving Lt. governor power to extend the application of the laws is the delegation of powers? It was declared that it was conditional legislation and was upheld by the court.
Definition and Relevancy
Delegation of powers means deputing the powers to the lower authorities to make certain laws which are given by the higher authorities i.e., the powers given by the legislature to administration or to the subordinates to enact laws to perform administration functions. It is also called secondary legislation, which is the legislation made by a person or authority other than Parliament, being vested by the legislature. It provides procedures for implementing the substantive provisions of the statute and regulations (procedural regulations). Delegated legislation at times is measured as ‘legislation without a legislature’. Whatever power that the executive tells or deals with it is derived from the delegation made under specific enactments. This type of activity i.e., the power to supplement legislation has been described as delegated or subordinate legislation.
One of the simple illustrations of delegated legislation is, Prescribing punishments: in some cases and some issues, the legislature delegates to the executive the power to take punitive action. But in such a situation the legislature must determine the maximum punishment. (i.e. there must be some pervasive control of the legislature.)
In India, on the question of delegation of its legislative power by a legislature to the executive, the principle prevailing is that the essential power of legislation i.e. the function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct cannot be delegated. The legislature must declare the policy of law the policy of the law and the legal principles which are to control any given cases and must provide a standard way to deal with it. This concept has been defined in the case of Swami Vivekananda College of Education v. Union of India as a delegate of the legislature is conferred with the power to make rules and regulations to carry out the purposes of the legislation and such rules and regulation are called delegated legislation or subordinate legislation. The legislature can’t delegate its power to make laws but it can make a law to delegate power and can do everything.  From the case of Vasanlal Manganbhhai v. State of Bombay, it is now dealt by that the power of delegation is a constituent element of the legislative power as a whole and it is necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts.
In the case of Devi Das Gopal Krisna v. State of Punjab, Subba Rao CJ proved the justification for the delegated legislation that the Constitution confers power and imposes a duty on the legislature to make laws, but in view of the multifarious activities of a welfare state, it can’t presumably work out all the details to suit the varying aspects of a complex situation. The legislature must delegate the working out of details to the executive or another agency. This concept is proving its worth in contemporary times as (I) Parliament has to make laws for the entire nation so it is becoming overburdened day by day. So, some responsibilities must be delegated to its subordinates for efficient working. (II) Many times emergency situation arises where there is a need for some swift actions to be taken but parliament can’t enact such legislation because of its political nature and cumbersome procedures that it has to follow. Situations like war, riots, national disasters, etc. Required such actions so during such situations executives are vested with a wide range of powers. Therefore, such developments are discerned during world wars.
But the legislation created by delegated legislation is not unfettered and subjected to some limitations. It must be made in accordance with the purposes laid down in the Act. Although legislative has wide powers of the delegation, it can’t delegate the essential powers that should have been in the hands of the legislature itself, and also delegation is valid only when it is confined to legislative policy and guidelines.  It provides the authorities below the parliament to pass the legislation. According to this concept, the parliament becomes the genus and the subordinate bodies become the species while passing any legislation.
Outreach and Loopholes
Delegated legislation has become a necessity in the present society but the moot question gets to one’s feet is that up to what extent the delegation would be feasible. The legislature cannot transfer the power to the others and of making laws to any other hands. Also in the case of Devi Das Gopal Krishnan v. State of Punjab, a provision enabling the government to levy sales tax as it thinks fit was held bad. Subba Rao, C.J, expressed his concern over delegated legislation and pronounced “An overburdened Legislature or one controlled by a powerful Executive may Unduly overstep the limits of delegation. But however, one concerned of the Despotism of the executive, the very complexity of the modern society and the demands there is a need that government must set in some motion forces which have made it necessary for the legislature to entrust more and more powers to the executive and other bodies too without any defined boundary.
As after the law enacted by the subordinates, it becomes the part and parcel of the primary legislation as if made by the legislature itself and subjected to less Parliamentary scrutiny than primary legislation. Therefore, in many instances’ parliament lacks control over the delegated legislation, and in circumstances, this can lead to inconsistencies in the laws.
Rules by the executive lack that major publicity, discussion and consideration which usually accompany do through the passage of legislation through the legislature in a democratic country, and thus is lost that safeguard of liberty which depends on law-making power being exercised by the elected representatives who will be affected by the laws that are made. Self-government is endangered when the representative of the public do not effectively control the making of laws which the people must obey.
Government (and its Bureaucrats) usually make provisions under delegated legislation and it becomes difficult and cumbersome for a common man to seek remedy even in the courts and outside the court but basically to be seen in court only. One such illustration has been seen in the year 1999, in which the Department of Telecommunications had issued a notification under the TRAI Act that if there is any dispute between a licensee (company) and the Government, then only the Government can refer to TRAI. This is a very bad misuse of delegated legislative powers. Another lacuna associated with this concept is that it is losing the essence of the democracy as the law-making body is elected by the people but this concept enables the other institutions also to legislate means the laws are being made by the unelected people also which results in undemocratic procedures and processes, as government ministers are accountable and answerable to Parliament and at any point of time ministers can be questioned about the use of their enabling powers. But in this scenario, the ultimate law-making body has been transferred to unelected civil servants rather than elected politicians and that can’t be made accountable. Due to the broad delegation of legislative powers and generalized standard of control, judicial control is also diminishing, leading to excessive delegation.
The legislature is the competent of the whole and the big responsibility of lawmaking and has been vested in it but by delegation, other bodies are also enabled but these bodies are unconnected with the people and will not consider the interests and welfare of the people. They’re more concerned about the technicalities of implementation or whatever serves their interest instead of the common good of people. The sample substantiating it is, presently under R.T.I act, the bureaucracy must give information within 30 days. But if the same R.T.I lawmaking was delegated to them, there may be the probability that they would have given the deadline of 90 days instead of 30 days, which would not have been much feasible or served the interests of the people.
Even the tax-related laws are also delegated to subordinates which goes against the principle of “no taxation without representation.” because of the paucity of time it is not feasible for the Parliament to have an eye on each and every matter, in such circumstances it would be a burden or cumbersome to scrutinize every piece and section of delegated legislation as the subordinate bodies doesn’t have the Committee of technical experts so it lacks the acuity to check which might turn the delegated legislation into one form of despotism. These above instances manifest that the worries associated with the delegated legislation. With the passage of time, this concept is overreaching at a great pace. So, there is a need for some effective control to limit this excessive delegation by some judicial as well as parliamentary intervention.
Effectiveness Of Parliamentary and Judicial Intervention
The legislature often fails to keep pace with the changing needs and changing thoughts and values nor is it realistic that it will have provided all contingencies and eventualities, but to act in different ways to perform the thing in good condition. It is therefore not only necessary but also obligatory to have some effective control.
There is a need to control and check the powers delegated as without controls bodies would pass outrageous and unreasonable legislation, the evidence of such event has been recorded in the foreign case of Strictland v. Hayes Borough Council where a by-law prohibiting the singing or reciting of any obscene language generally, was held to be unreasonable. So, in such circumstances, there is need for intervention from some superior authority to declare such laws to be unreasonable and void.
In another case of Panama Refining Co v. Ryan the supreme court held the delegation invalid on the grounds that “the congress has declared no policy, has established no standards, has laid down no rule. There is nothing required and not to the definition of circumstances and conditions in which the transportation is to be allowed or prohibited” so the delegation was held bad. Although there is a judicial intervention that acts as a strainer that filters these affected laws. There are various factors that still act as the speed breakers which reduces the effectiveness of the judicial controls. As the judiciary can’t interfere in the administration and legislative functions as the doctrine of separation of power prohibits it. But it is being experienced that due to the broad delegation of legislative powers to the subordinates the judicial control is defeating and this has been manifested by various instances as the court can only intervene when the aggrieved citizen challenges the defective part of the law, which means the judiciary lacks ‘suo moto’ power. It exercises control which is in the nature of post-mortem i.e. the intervention is done only after the impacts of the legislation are revealed and that has inflicted considerable damage. Another ineffectiveness is also observed as with the passages of time the volume, variety, and complexity of administration has increased due to the welfare orientation of the state. So, has become practically impossible for the courts to scrutinize each and every administrative act which is directly influencing the lives of the individuals. In the present view, the control is not that effective or good as it ought to be. There are various ways or points responsible for the ineffectiveness the growth of delegated legislation reduced the role of the legislature in making detailed laws and dealing with those laws. Also, the legislature has not much time to control the entire administration that has grown in such a volume as well as in complexity, so the unwilling legislature is forced to delegate some authority. This shows that although there are interventions from the legislative as well as judiciary bodies, that intervention has been proved to be ineffective. Delegation is inevitable for smooth functioning as there is a lot of burden but subordinates after being delegated with powers cannot act arbitrarily.
Conclusion
It can be accepted that the delegation of powers is the need of an hour but also the negative implications can’t be ignored. As this concept emphasizes that the essential legislative functions shouldn’t be delegated to the subordinate but there is no set of rules and regulation which can draw a definite boundary between the two. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out, there will be an end of the doctrine of the rule of law, the principle upon which the entire constitution of India is based. Both the legislative as well as the judicial controls proved to be not as much as effective as it is required to be, so there is still a need of some new mechanism to fill the lacuna, which can be giving detailed limitations for delegated legislation and there can be an authority to check delegated legislation. The law-making body in order to strengthen the institution of democracy needed to be vigilant and should delegate the powers in a conservative way. The courts invariably reiterate the principle that the power delegated should not be unguided and uncontrolled and that the legislature must lay down legislative policy and principles subject to which the delegate is to exercise its power.
To effectuate this idea, it is necessary that while the legislature delegates power it should state the policy in a clear and articulate term so that it may be easy for courts to ascertain the validity.
References
[1] 1878 3AC 889.
[2] Cooley, Constitutional Law, 4th Edition.
[3] G. M. Young cited in Cecill Carr, “Delegated Legislation” in Lord Campion et al. (Eds.), Parliament: A Survey, 4th Impression (London: George Allen & Unwin, 1965), p. 248. 
[4] CIVIL APPEAL NO. 5961 OF 2010.
[5] AIR 1961 SC 4.
[6] AIR 1967 SC 1895.
[7] J.K. Industries Ltd. v. Union of India, (2007) 13 SCC 673, available here
[8] John Locke, in his Civil Government, Article 141  
[9] AIR 1967 SC 1895.
[10] Sita ram Bishambhar Dayal v. State of U.P., (1972) 4 SCC 485, available here
[11] Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12, available here
[12] Mr. Palas Nuwal, available here and here
[13] Ibid
[14] Ibid
[15] Ratan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67.
[16] [1896] 1 QB 290.
[17] 293 US 388, Cases, I, 30.
[18] M. Laxmikanth, Governance in India, McGraw Hills Education, 2nd edtn., 
[19] Ibid, at 24
[20] Ibid, at 23.
[21] Ibid, at 24
[22] Ibid, at 24.
[23] Consumer Action Group v. Tamil Nadu, (2000) 7 SCC 425.

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