Delegated legislation and its constitutionality

When the function of legislation is delegated to  government bodies other than the legislature, the legislation created is known as “Delegated Legislation.” This is also known as “subordinate legislation”. Salmond has classified the legislation into two categories, i.e. Supreme legislation and subordinate/delegated legislation. 

Delegated legislation  

Supreme law is legislation enacted by the state’s supreme power, the parliament. Law enacted by an authority other than the Supreme Authority in the exercise of the power granted to it by the Supreme Authority is known as subordinate/delegated legislation.

Delegated legislation relies on the same superior or supreme authority for its continuous existence and legitimacy.

The “Parent Act” delegated law-making power to the executive and administrative authority, resulting in delegated legislation. The Parent Act, sometimes known as the Primary Act, is a statute established by the legislature that gives the executive-legislative power. 

“Subordinate Laws” or “Child Legislature” refers to the executive’s rules, regulations, orders, by-laws, and other actions taken in the exercise of legislative power bestowed by the legislature.

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Reasons for growth of Delegated Legislation 

Legislature has been increasingly delegating its authority to the executive and judiciary. There are many reasons which are responsible for the growth of delegated legislation. A few of them are:

Increased pressure on the parliament

Day by day, the horizon of the welfare state activity is increasing, which makes it almost impossible for the legislature to devote proper time to all the legislative details. Therefore, instead of making the whole legislation, the legislature formulates the general policy, i.e. the skeleton, and empowers the executive body to fill in the details, i.e., providing flesh and blood to the skeleton. 

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The technicality of subject matter 

Sometimes, the legislature has to make and pass legislation on matters of technical nature. People sitting in the parliament as common people cannot be expected to be experts in all matters. Thus, they cannot be expected to appreciate and legislate in the same way an expert would do. Therefore, the legislature confers its legislative powers on the experts to deal with the technical aspect of the legislation. 

Emergency Measures 

In emergencies, quick action needs to be taken. For example, during the breakdown of war or law and order in a country or state, epidemics such as floods, earthquakes, etc., the legislature cannot meet the required solution for the situation. So in such situations, the executive is vested with special powers in the form of delegated legislation to cope with such emergencies. 

Constitutionality of Delegated legislation 

Delegated legislation’s status and constitutionality in India can be shown in various cases. It is separated into two phases: before independence (pre-independence) and after independence (also known as post-independence).

Pre-independence 

The Privy Council has only authorised conditional legislation in Queen v. Burah (1878). In this case, the privy council transferred the legislature’s power to the executive. The administration of a territory’s civil and criminal justice might be entrusted to officials selected by the Lieutenant-Governor regularly.

In the case of King v. Banwari Lal Sharma, the Privy Council applied conditions that were legislative once more, as it had in the matter of Queen v. Burah. The validity of the Governor-General of India’s Emergency Ordinance was challenged in this case, among other things. It was contested because he attempted to usurp power from the Provincial Government. He was establishing special criminal courts for specific types of offences, but only the Provincial Government had the authority to settle any court. 

This is not delegated legislation, according to the judicial committee. The Privy Council further stated that it is an example of an unusual legislative authority in which the local application of State legislation is determined by the local administrative body when it is required. 

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Post-independence 

The Indian Constitution does not take the same delegation of legislative powers as the influential British Parliament. The extent to which delegation is permissible in India must be determined as a matter of construction from the express provisions of the Indian Constitution. There is no such thing as an inexhaustible right of delegation inherited in legislative power.

The Supreme Court of India upheld the delegation of the power conferred to the executive body by the legislative body in the Raj Narain Singh v. Chairman, Patna Administration Committee Air (1954) case. This case empowered the local government to extend any provisions of the act (Bengal Municipality Act). 

Nothing in the Indian constitution expressly prohibits the legislature’s power to delegate. But there are two constitutional limitations on legislative delegation, which were laid down in the case named Re Delhi Laws Act (1951) :

1. Legislature cannot delegate its essential legislative functions. 
2. The power conferred on a subordinate authority or executive body should not suffer from excessive delegation. 

Conclusion 

Constitutionality of delegated Legislation simply refers to the restrictions acceptable within a country’s constitution regarding the legislature’s ability to transfer rulemaking authority to other agencies or administrative authorities. The goal of extending the government’s power is to deal with socio-economic problems as quickly as feasible. Delegation of legislation has its advantages and disadvantages. If the courts have to find any restrictions on the legislature’s power to delegate, it must be based on general principles and constitutional law theories.