Delegated Legislation – Types, Advantages, Dangers, Safeguards

Types Of Delegated Legislation

Different classification of delegated legislation have been advanced by the authors of Administrative law.

Some of them are:

  1. Contingent Delegated legislation
  2. Supplementary or Subordinate Delegated legislation
  3. Interpretative Delegated Legislation.

Contingent Delegated Legislation:

Delegated legislation of the contingent type takes place where the legislator makes the obligation of the main or the enabling act depending on the existence of certain facts or conditions and delegates the power to the administrative agency to determine the existence or absence of those facts and conditions and apply the statute accordingly. For example, the Indian Tariff Act, 1934 empowers the government to impose protective duties on commodities by notification in emergent circumstance that warrant the issue of rules exist or do not exit.

Supplementary or Subordinate Delegated Legislation:

Supplementary delegated legislation fills up the details of the law which has been passed by the legislature only in a skeleton form, i.e. in which only certain general principles or standards have been laid down by the legislature, and the working out of the details has been left to the administrative agency by rule making. For example, the municipal act lays down the details regarding the qualifications and disqualifications for the candidates intending to contest in a municipal election. However, the procedure to be followed by him to get himself nominated is to be laid down by the executive. Thus supplementary delegated legislation fills in the content in general principles and standards prescribed by the law.

Interpretative Delegated Legislation:

Finally, delegated legislation clarifies and explains the provisions of the law to which it relates. The power to issue rules, to clarify the provisions of the law may be given to the administrative agency by the law itself or the agency may issue them at its own action without any statutory authorization.

Advantages Of Delegated Legislation

The popularity of the delegated legislation in the recent times can be attributed to the following reasons:

1. Relieves pressures on the legislature:

Delegated legislation enables the parliament to save its time. It relieves it from going into intricate details and enables it to concentrate on the general principles and improve issues of policy.

2. Flexibility of rules:

Delegated legislation promotes flexibility. Rules are more easily amendable than statues an through them rapid utilization or experience gained is possible. This is specially useful in those fields where rapid technical developments are taking place.

3. Facility to consult affected interests:

Delegated legislation makes prior consultation with the affected interests possible. Such a consultation will make legislation more effective. In the words of White, The drafting of the rule may and often does permit conference between the government and the parties at interest and consequently a broad agreement which tends towards voluntary compliance.

4. Facility of meeting of unforeseen contingencies:

Parliament can hardly foresee all sorts of contingencies which may arise if a particular scheme is to be implemented, delegated legislation equips the administrative officials with discretionary powers to deal with such types of situations.

5. Avoidance of litigation:

Administrative legislation permits a definite statement of policy thus avoiding possibility of litigation or compulsion. According to white, “The avoidance of litigation as far as possible is a definite gain”

6. Facilitates for proper drafting of rules:

Since the rule making power is exercised, keeping in view the actual situation, the drafting of rule is bound to be more perfect.

Thus delegated legislation is the only suitable answer to the rapidly increasing needs of the present day changing society which necessitates progressive attitude and an adaptation of policies to the changing circumstances.

Dangers Of Delegated Legislation

Despite its marked popularity delegated legislation has been vehemently criticized for the following reasons:

1. Encroachment of personal liberty:

The characteristic feature of the old time despotism was the combination of the legislative, executive and judicial powers in one single individual or institution. This combination was criticised on the grounds that it encroaches political liberty and consequently the doctrine of separation of powers took birth wherein the legislative, executive and judicial powers are distributed among three different institutions. As delegated legislation implies that the legislative power is vested to a certain extent in the executive, there is a possibility of encroachment of liberty. Critics like Lord Hewart have gone to the extent of labelling this phenomenon as the new despotism. Lord Hewart has reiterated delegated legislation amounts to the creation of a subordinate parliament to evade the courts and to render the will or the caprice of the executive unaffected and supreme.

2. Possibility of delegation of unlimited powers:

Once the process of delegating of legislative powers commences critics apprehend that there is a possibility of delegating unlimited powers to the executive by the legislature. The legislature may confine itself merely to the passing of “skeleton” laws and leave even the matters of principle to be determined by the rules laid down by the executive. For example in India, legislature has passed skeleton laws in the form of “Local Governments’ Act” and has given bulk of the powers to the executive to constitute, suspend and supervise the municipal authorities. Likewise the “Estate Duty Act, empowers the central Government to impose or vary taxation. Thus delegated legislation has an inherent danger of devolving unlimited powers on the executive by passing bare laws.

3. Possibility of insufficient scrutiny:

Even when the delegation by the legislature is limited and moderate, insufficient scrutiny by the legislature of the rules made by the executive under the act may result in an abuse of power by the executive.

Jurisdiction of the courts may be ousted: Delegated legislation often seeks to oust the jurisdiction of the courts. The basic act may have a provision that the rules made under the act shall not be questioned in any court of law. This results in depriving the citizens of judicial protection. To quote Lord Hewart the greatest abuse and the one must likely to lead to arbitrary and unreasonable legislation is the ousting of the jurisdiction of the courts.

4. Interest of the people may be ignored:

One of the advantages of the delegated legislation as stated above is that it enables consultation with the affected parties. However it defeated if the executive consults only “organised interest groups setting unorganized general public. As the legislature is the representative of the general public, there is a definite need to take due care of the needs and wishes of the people as a whole and not just the dominating groups.

5. Undermines democratic principles:

In the process of delegated legislation there is every possibility that the taxation power may also be delegated. This would undermine the most important democratic principle i.e. “No Taxation without representation”. Though the power to impose taxes is not delegated to the executive, various methods are adopted which pass on the effective powers to impose tax to the executive. This is done by delegating the power of inclusion (i.e., to bring certain commodities under the tax or to exempt from tax ) and delegating the power to fix the rates of tax. (Generally, the statute fixes a maximum limit and allows the executive to vary the rates within that limit).

6. Possibility of frequent amendments:

One of the advantages of delegated legislation is it’s inherent flexibility in the form of amendments to the law. However this advantage has equal disadvantages in the sense that if rules are amended too frequently it could result it could result in uncertainty and chaos. O Poor publicity of rules: The basic act made by the legislature generally has a provision that the rules made under this act should be given proper publicity. However in actual practice it has been noted that the executive has fallen short of this duty.

Though the aforesaid points of criticism are justified, yet delegated legislation cannot be avoided in the modern day administrative state.

Deligated Legislation As A Necessity And A Risk

Shri. G.M. Mavalankar, the Late Speaker of Lok Sabha, once remarked that Delegated Legislation is both a necessity and a risk. It is a necessity because Parliament suffers! from the constraints of lack of time and expert knowledge to deal with the details of modern legislation. It is also a risk because Parliament in the hurry of the moment may delegate what is should, properly speaking keep in it’s own hands and because in exercising the delegated power the departmental experts may go beyond or against their terms of delegation or even when they do not do so, make the rules with an eye, more to administrative convenience than to the convenience of the people.

Left to itself delegated legislation may thus encroach on the sphere of the Parliament as well as on the liberties of the people. Hence, it is necessary that adequate control mechanism should be designed and safeguards must be provided to minimize risk involved.

Safeguards In Delegated Legislation

The safeguards usually considered to be necessary to prevent the abuse of delegated legislation are:

1. Delegation of legislation with well defined limits:

The first safeguard required is that the delegation of the legislative power by the parliament should always be subject to well-denned limits. The enabling act should not be so vague. general or sweeping that its limits may DC undiscernible, for in that case scrutiny or control by anybody becomes impossible. The act should specifically define in clear language the limits of the law making power which the Parliament intends to confer.

2. Delegated legislation confined to the routine matters:

The delegation of the legislative power should not ordinarily be made for unusual or abnormal purposes (for example, taxation, fines, penalties, etc). When the Parliament is forced to delegate such powers, the basic law should ensure that the condition of such a delegation is limited to one or two areas.

3. Antecedent Publicity and Consultation:

The procedure of rule making should invariably provide for consultation with the public and the special interest affected. By obtaining the opinion of various groups and the affected parties the abuse of power by the executive can be kept under check.

4. Effective Parliamentary Control and Judicial Control:

Finally, the powers of delegated legislation can be curtailed by ensuring effective control over the delegated legislation by the Parliament and the judiciary.

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