Delegated Legislation and its constitutionality - in crisp


OMG ! WHAT IS DELEGATED LEGISLATION ?


Delegated legislation is made by ……………. for the purpose of ……….with the help of ……..and aid to the……….. and to achieve …….


No! Let’s not make concepts complicated – JUST KEEP IT SIMPLE!!! Let us learn by existing situations.


A practical example :-


Awesome Fact : The Parliamentary Act to regulate the Recruitment and the conditions of service of persons appointed to All India Services is in only one page long having only four sections?


Pay attention : Then how does it then govern the complex process of recruitment and the detailed and complicated conditions of service.


THINK ! : The answer is that one page Act can allow for recruitment to and regulation of complex service conditions of All India Services is a result of delegated legislation.


Using section 3 of the Act the government has made more than 40 different rules governing the recruitment and various aspects of conditions of service. e.g. The All India Services (Discipline And Appeal) Rules, 1969


DELEGATED LEGISLATION IN INDIA : In view of our written constitution, such delegation cannot be unlimited and must always conform to the basic features of the Constitution as well as the ambit which is given for the delegation by the corresponding legislation. Moreover, essential legislative functions cannot be delegated.

CONCEPTS IN CRISP


WHAT IS DELEGATED LEGISLATION?

Law made /powers exercised by an executive authority through the powers given to them by enabling act.


WHAT IS AMBIT OF DELEGATED LEGISLATION ?


Though the executive has discretionary powers, this power is to be exercised in aid of the legislative policy of the Act and CANNOT

  1. travel beyond it, or

  2. run counter to it, or

  3. certainly change the essential features, the identity, structure or the policy of the Act.

A.K.A : Delegated legislation is, referred to as “Ancillary”, “Subordinate”, “Administrative Legislation or as “Quasi-Legislation”.


WHY DELEGATED LEGISLATION :Hamdard Dawakhana v. Union of India : “to fill in the details to carry out and sub-serve the purposes of the legislation…


DELEGATED LEGISLATION V. EXECUTIVE LEGISLATION :

  • Delegated legislation refers to exercise of legislative powers under the law made by the parliament

  • Whereas Executive legislation is when legislative power is conferred on the Executive by the Constitution itself.( Ordinance making power : President / Governor)


WHY DO WE NEED DELEGATED LEGISLATION?

  1. TO DEAL WITH EMERGENCIES

  2. PARLIAMENT HAS NO TIME TO FILL THE COMPLICATED + TECHNICAL MATTERS

  3. PARLIAMENT CAN DEAL WITH POLICY, CANNOT DEAL WITH QUANTITY OR QUALITY OF LAW

  4. TECHNICAL NATURE : Technical matters are best-handled by experts through delegated legislation.

  5. INTRODUCES DYNAMISM : The practice of delegated legislation introduces flexibility in the law.

POWER OF LEGISLATURE TO DELEGATE UNDER CONSTITUTION OF INDIA :

GENERALLY :

  • ART.245 AND 246 :Under the constitution of India, articles 245 and 246 provide that the legislative owes shall be discharged by the Parliament and State legislature.

It is now well settled that the power of delegation is a constituent element of the legislative power as a whole due to above-stated reasons.

  • ART.13 : Further, Article 13(3)(a) of the Constitution of India lays down that law includes any ordinances, order bye-law, rules, regulation, notification, etc. Which if found in violation of fundamental rights would be void.

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CONSTITUTIONAL LIMITS OF LEGISLATIVE DELEGATION : The power of delegation is subject to certain limitations the legislature cannot delegate essential legislative functions which consist in determining the legislative policy.


The following non-essential functions may be delegated : such as power to extent the duration of the statutes /adopt to suit changes without modifying the underlying policy of the statute.


ESSENTIAL LEGISLATIVE FUNCTIONS CANNOT BE DELEGATED :

WHAT IS ESSENTIAL ? The essential legislative functions consist in making a law

VERY IMPORTANT CASE: Delhi Laws Act Case (AIR 1951 SC 332) : HELD:

  1. Basic Policy should be laid down in the Parent Act.

  2. Essential Legislative function should not be delegated.

  3. Executive can only implement the policy laid down in the enabling act.


CLASSIFICATION OF DELEGATED LEGISLATION

Delegated legislation may take several forms. They may be normal or of exceptional type,they may be usual or unusual, positive or negative, skeleton or machinery type.


NORMAL AND EXCEPTIONAL TYPE :


The normal type is said to have two distinguishable characteristics, one positive(defines the scope clearly) and the other negative (defines what it is not included) .


The exceptional type of delegation : power to legislate on matters of principle and even to impose taxation/ amend/ conferring so wide a discretion on a Minister.


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