Delegated Legislation: Concept and Controls notes — Unit 2

Under the Constitution, the primary power to make laws belongs to the Legislature (Parliament/State Assemblies). However, in the modern state, the volume and complexity of law-making is overwhelming.

⇒What is Delegated Legislation?

When the Legislature passes an Act (the Parent Act), it often delegates the power to make detailed rules, regulations, and by-laws under that Act to the Executive (the Administration). The rules made by the Executive using this delegated power are called Delegated Legislation.

Why does Parliament give away its most important power?

• 1. Pressure on Parliamentary Time: Parliament has very limited time. It cannot debate every minor administrative detail. It must focus on broad policy.
• 2. Technicality of Subject Matter: Modern laws (e.g., Telecom, Atomic Energy, Cyber Law) require highly technical and scientific rules. Parliamentarians are politicians, not scientists. Bureaucratic experts must draft the technical rules.
• 3. Need for Flexibility: The process of amending an Act in Parliament is slow and cumbersome. Rules made by the executive can be amended overnight by publishing a notification, allowing rapid response to changing situations.
• 4. Emergency Situations: In times of war, epidemics, or economic crisis, the government needs immediate rule-making power without waiting for Parliament to convene.

Can the Legislature delegate all its powers? Is there a limit?

⇒The Essential Legislative Function Rule

In the landmark case In Re Delhi Laws Act, 1912, the Supreme Court laid down the bedrock principle of delegated legislation in India:

The Legislature CANNOT delegate its essential legislative functions. Essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct.

(Meaning: Parliament MUST decide the core policy and boundaries of the law itself. It can only delegate the power to fill in the "fleshy details" within that skeleton).

Because of the "Essential Legislative Function" rule, certain powers can NEVER be delegated to the executive:

• 1. Power to repeal an Act: Only Parliament can destroy an Act.
• 2. Power to create offences and prescribe punishments: The executive cannot invent new crimes or send people to jail via rules.
• 3. Power to impose taxes: Article 265 strictly says taxes can only be levied by authority of law (passed by legislature), not by executive fiat.
• 4. Retrospective Operation: Delegated legislation cannot be given retrospective effect (applying it backward in time) unless the Parent Act specifically authorizes it.

⇒Henry VIII Clause

A clause in the Parent Act that gives the executive the power to amend or modify the Parent Act itself. (Named after the autocratic English King). Indian courts heavily frown upon this and only allow it for 'removing difficulties' for a very limited initial period (usually 1-2 years).

Since the executive is making rules, there must be controls to prevent abuse. The first line of defense is Parliament itself.

⇒Laying on the Table

The most common parliamentary control is the requirement that all rules made by the executive must be "laid before Parliament." This gives MPs a chance to scrutinize the rules.

• Simple Laying: Rules come into effect immediately but must be placed before Parliament for information.
• Laying subject to negative resolution: Rules come into effect, but Parliament can pass a resolution to annul or modify them within a specified time.
• Laying subject to affirmative resolution: (Strongest control). The rules do NOT come into effect at all until Parliament explicitly votes to approve them.

⇒Committee on Subordinate Legislation

Both houses of Parliament have this committee. They act as watchdogs, reading the volumes of rules produced by ministries to ensure they do not exceed the powers given by the Parent Act.

Procedural control means the executive must follow specific procedures while drafting the rules to ensure fairness and transparency.

⇒1. Prior Consultation

The Parent Act may require the government to consult affected parties or expert bodies before making rules. (e.g., Before making rules under the Pharmacy Act, the Pharmacy Council must be consulted). If consultation is mandatory and ignored, the rules are void.

⇒2. Prior Publication

Section 23 of the General Clauses Act mandates that if a law requires "prior publication," the government must publish a draft of the rules, invite public objections/suggestions, and consider them before finalizing the rules. This ensures democratic participation in rule-making.

⇒3. Publication of Final Rules

Ignorance of law is no excuse, but people must know what the law is. Delegated legislation does not come into force until it is published in the Official Gazette.

The most effective and frequently used control. Courts can strike down delegated legislation using the doctrine of Ultra Vires (Beyond the powers).

⇒Two types of Ultra Vires:

• 1. Substantive Ultra Vires: When the delegated legislation goes beyond the scope of the power conferred by the Parent Act. (e.g., If the Act allows rules for "health inspections," and the executive makes a rule imposing a "health tax," it is substantive ultra vires because power to tax wasn't given).
• 2. Procedural Ultra Vires: When the executive fails to follow the mandatory procedure laid down in the Parent Act (e.g., failing to publish draft rules or failing to consult the mandatory expert committee).

Apart from the Parent Act, delegated legislation can be struck down if it violates higher laws.

• 1. Unconstitutionality: If the rule violates any Fundamental Right (e.g., Article 14 or 19). For instance, if a rule gives an administrative officer arbitrary, unguided power to grant or cancel licenses, it will be struck down under Article 14.
• 2. Conflict with Parent Act: A rule cannot contradict the very Act under which it is made.
• 3. Conflict with General Law: A rule cannot contradict other major statutes (unless specifically authorized).
• 4. Unreasonableness / Arbitrariness: If a rule is manifestly arbitrary, discriminatory, or so absurd that no reasonable person would make it, courts will strike it down.

This is a concept closely related to, but distinct from, delegated legislation.

⇒What is it?

In Conditional Legislation, the Legislature makes the law completely. It does not delegate the power to make rules. However, it leaves it to the Executive to determine the time, place, or conditions under which the Act will come into operation.

Can a delegate further delegate its power? (The maxim is Delegatus non potest delegare - a delegate cannot further delegate).

⇒The Rule

If Parliament delegates rule-making power to the Central Government, the Central Government CANNOT further sub-delegate that power to a lower authority (like a District Magistrate) unless the Parent Act expressly or impliedly authorizes such sub-delegation.

⇒The Danger

Sub-delegation removes the rule-making power further away from the democratically elected Parliament. If it continues unchecked (sub-sub-sub-delegation), laws will end up being made by low-level clerks, completely escaping parliamentary scrutiny.

Sometimes, the Parent Act contains an 'ouster clause' stating: "Rules made under this Act shall not be questioned in any court of law."

⇒Are Ouster Clauses valid?

The Supreme Court has repeatedly held that judicial review under Articles 32 and 226 is part of the Basic Structure of the Constitution. Therefore, no statute can completely oust the jurisdiction of the High Courts and Supreme Court.

Even if a statute says an order is "final," courts can still intervene if the order is ultra vires, malicious, or violates natural justice.

Legislatures generally have the power to make laws with retrospective effect (except criminal laws under Article 20).

⇒Can Delegated Legislation be Retrospective?

The settled law is that the executive CANNOT make delegated legislation with retrospective effect UNLESS the Parent Act explicitly gives them the power to do so.

If the Parent Act is silent, all rules made by the executive will only have prospective effect (applying from the date of publication onwards).

⇒Summary of Master Concepts

• Delegated Legislation: Executive making rules under the authority of a Parent Act.
• Constitutionality: Valid as long as 'Essential Legislative Functions' (core policy) are not delegated (Delhi Laws Act case).
• Controls: Parliamentary (Laying on table), Procedural (Prior publication/consultation), Judicial (Ultra Vires).
• Ultra Vires: Substantive (beyond scope) and Procedural (ignoring mandatory steps).
• Conditional Legislation: Executive only decides when/where to apply a fully drafted law.

⇒University Exam Tips for this Unit (Premium Advice)

• The 'Essential Legislative Function' Test: This is the heart of the topic. If asked about limits on delegation, you must explain that Parliament cannot abdicate its core duty of setting policy. Cite the In Re Delhi Laws Act case.
• Substantive vs Procedural Ultra Vires: A very common long question. Define both clearly with examples (e.g., imposing a tax without authority = substantive; failing to publish draft rules = procedural).
• Henry VIII Clause: Prepare a short note on this. Explain it's a clause giving the executive power to amend the Parent Act, and why it is viewed with extreme suspicion by courts.