Tuesday, 15 February 2022

Delegated Legislation

 What is Delegated Legislation?

Traditionally the function of the legislature is to form and enact the law, the executive to administer or execute those laws and the function of the judiciary is to interpret those laws. But the executive does not only perform the pure administrative or executive functions but also performs legislative and judicial functions also. There is no such hard and fast definition of delegated legislation. But various definitions have been given by the Judiciary, Authors, and other learned persons. 

According to Justice Mukherjea “Delegated legislation is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists…”

But generally speaking, the Shifting of power of the Legislative to Sub-ordinate authority is called Delegated legislation. When such authority is further delegated by the executive it is known as Sub-delegation. It is important to know that Judicial powers cannot be delegated and only the ancillary power is transferred and not the real power. 

Forms of Delegated Legislation-

Based on Title- Titles such as rules, regulations, bye-laws, notification, schemes, orders, ordinances, directions, or anything which comes under Article 13 of the India Constitution may be a form of delegated legislation.

Discretion- As the name suggests certain parent laws confer power to the executive to bring the Act upon fulfillment of certain conditions or upon the discretion of the executive.

Purpose- Delegated legislation may be classified on the basis of purpose. Executive may aim to fulfill certain purposes by framing rules or orders as delegated by the parent Act.

Authority- A parent Act or Statute ma also give power to the executive to further delegate powers conferred on it to its subordinate authority which is known as Sub delegation.

Permissible Delegation-

Commencement- There are several statutes that confer power to the appropriate government to decide the date of commencement of the Act to come into force. The appropriate government decides the commencement day accordingly. Example- Section1(3) of the Consumer Protection Act, 1986.

Extension of applicability (Inclusion) – The legislature gives power to the government to extend the provisions to different territories and their application. For example, the Transfer of Property Act, 1882 confers power to the state government to extend the applicability in respective states.

Exclusion- There are certain statutes that confer the power to the government to exclude the operation of the said statute in various territories, classes of persons, commodities, etc. Example- Section 36 of the Payment of Bonus Act.

Modification- As we know that law is never rigid and must be dynamic in today’s world. Hence, there are several statutes that allow the government to modify the laws accordingly. Example- Bombay Agricultural Debtors’ Relief Act, 1947 was extended to Delhi by the Central Government.

Prescribing punishments- The legislature also delegates to the executive to decide the punitive action. For example- Section 37 of the Electricity Act, Section 59(7) of the Damodar Valley Corporation Act.

It is to be noted that only ancillary power is transferred and not the real power. Anything which goes beyond it is ultra-vires and null & Void. Delegated legislation is a powerful weapon at the hands of the executive and needs to be carefully used.

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