Scope Of Administrative Law
The emergence of the social welfare concept in the 20th century has affected democracies very profoundly. It has led to ‘State activism’. There has been a phenomenal increase in the area of state operation and the state has taken over a number of functions which were previously left to the private enterprises. In its quest to improve physical, moral and the economic welfare of the people the state has assumed more and more power to regulate the society. Under such complex conditions, the legislature which is the sole authority empowered to make rules (under the Doctrine of separation of powers) has found itself obliged to delegate a great deal of its legislative powers to the administrative authorities. This act of conferring of rule making power by the legislature to the executive is known as Delegated Legislation.
Delegated Legislation has been defined as the exercise of minor legislative power by · subordinate authorities and bodes in pursuance of a statutory given by the Parliament.
Such authority is granted usually to the Government (ministers or ministries) or to the statutory corporations like the universities, local bodies and others. The output of delegated legislation is variously called ‘regulation’, ‘order’, ‘Bye-law’, ‘Schemes’, etc. These are strictly subordinate to the terms and conditions of the legislation laid down in the enabling Act and are liable to be declared void by the courts if they go beyond or against these terms. Hence delegated legislation is also called as a ‘subordinate legislation’.
The term delegated legislation is generally with reference to:
1. The exercise by a subordinate agency of the legislative power delegated to it by the legislator:
The legislature jointly makes a small piece of legislation and leaves it to the executive to interpret and expand the legislation. For example, the Imports and Exports (controls) Act, 1947 is a legislation containing only 8 sections. One of the sections authorizes the central government to prohibit or restrict the import or export of goods of any specified description by order. Empowered by this legislation the central government has built up a vast mechanism of import and export licencing through delegated legislation promulgated under the statute.
Similarly under the Essential Commodities Act, 1955, the central and state governments have promulgated a large number of orders and rules. The act itself is small piece of legislation containing only 16 sections. But under it the Government carries on the whole operation of controlling and regulating production, movement, supply, sale and prices of a number of commodities.
2. Delegated legislation as the subsidiary rules mentioned by the subordinate agency in pursuance of the power granted to it by the legislature:
In the above sense delegated legislation is designated by several, names, such as, rules, regulations, bylaws, orders, etc. The term regulations and bye-laws are usually used to denote the legislation framed by the statutory corporations under delegated legislative power. Examples of promulgating delegated legislation through orders are provided by Imports and Exports(control) Act, 1947 and the Essential Commodities Act, 1955.
Causes For The Growth Of Delegated Legislation
Theoretically the parliament or the legislature is the sole source of legislative power. However, owing to a number of reasons it has been forced to delegate its powers to the executives.
The following are some of the important reasons for the growth of delegated legislations.
1. Expansion in the activities of the State:
As already mentioned in the introduction, the Social Welfare state has led to the vast expansion of the activities of the state leading to a multifold increase of the volumes of task to be performed by the legislator. The legislature being unable to cope with the ever increasing function has been compelled to delegate some of its powers to the executive. Thus pressures of work and lack of time have induced the legislator to delegate legislative authority to the executive.
2. The Technical nature of modern legislation:
Many of the matters which modern legislation is to deal with are highly technical. The average legislator being a lay man is not equipped to deal with such complicated matters. Hence the legislator lays down the general principles and leaves the technical details to be filled up by the departmental heads. For example, the parliament may place restrictions on the sale of toxic substances but may leave the compilation of technical subjects to the medical and health department.
3. Need to Secure Flexibility:
The law passed by the parliament may require alteration keeping in view the genuine circumstances. The supreme authority of law making i.e. parliament, is not always in session. Hence it cannot adopt the law to the changing conditions. Delegation of this power to the executive enables it to make alterations in the law whenever it may be essential.
4. Need to provide for unforeseen contingencies:
Emergencies like, war, Economic crisis, etc. Warrant immediate actions. It would be highly impracticable to wait for the parliament to meet and declare the situations. It is a demand of prudence that the power to deal with emergencies should be vested with the executive which emergencies should be vested with the executive which should always be prepared to take immediate action.
5. Need to consult affected interests:
In the modern day democracies, there is a definite need to consult the affected parties before passing a law. The parliament is not in a position to conveniently arrange for consulting the affected parties. The administrative agencies being at the cutting edge are in a better position to initiate consultations with the interests affected.
All the above factors led to the continuous increase in the volume of the delegated legislation. As the Donougmore committee has rightly remarked if the Parliament were not willing to delegate its law making power, it would be unable to pass the kind and “the quantity of legislation which the modern opinion requires.