DELEGATED LEGISLATION

DELEGATED LEGISLATION

Constitution of India LAW EXPLAINED
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Introduction-

Delegated legislation is also known as subordinate legislation. It is one of the most important topics for public administration. Delegated legislation means lawmaking power conferred by parliament on the executive. The history of it goes back to the 16th century. As we all know that the role of the state is positive now and it has to manage the whole country from ‘womb to tomb’ which was increasing the pressure on the parliament and thus delegated legislation is the outcome of this increased workload. Although it is a duty to legislation to make rules but due to extreme pressure, they just prepare the rough plan and then comes the duty of the executive to finally draft the plan properly and work on its minute details.

NEED FOR DELEGATION

  • Preserve upon the parliamentary time– With the changes happening in the society many amendments were being made, many new acts were also being made but the changes were so fast that parliament was not having time to elaborate each act properly so in order to save the time of the parliament, delegated legislation was adopted.
  • Scientific & technical character of the subject matter- As we know that law-maker just make laws by seeing the changes in the society but they don’t have any particular knowledge regarding any subject but its executive who knows everything regarding every subject because they are one’s who work on the ground level and they know exactly what things have to implement, where to implement and how to implement and that’s why delegated legislation is so important.
  • Need to secure flexibility- As the executives are the ones who work on the field and knows about the needs of the society so they obviously need to work on the basic plan given by the legislation so that act can meet the needs of the people/society.
  • Need to provide for unforeseen contingencies- In the times of emergency when the parliament is not there to make any law/ act so can avoid these kinds of circumstances someone must be there to work on behalf of legislation than at that time executive comes into the picture and does the work and thus delegated legislation again plays a very important role.

TYPES OF DELEGATED LEGISLATION

There are two types of delegated legislation:

Normal Delegated Legislation

As the name only tells that this delegation doesn’t deal with any matters of policy taxation & repealing, modifying constitutional & statutory laws. This is further of two types:

  1. Positive legislation- This involves legislature enabling the administration to make laws and in that gives the rule and regulations how the administration is to go about it. Thus it is properly defined.
  2. Negative delegated legislation- Also certain areas are notified where the administration is restricted from making laws.
Special Delegated Legislation/Henry VIII Clause: –

Here there are no areas or restrictions on the administrations on legislation. This is also Exceptional Delegated Legislation.

An act which delegates legislative powers to amend acts of Parliament, either the Act, under which the powers are delegated or other acts, is known as the ‘Henry VIII Clause’.

ADVANTAGES OF DELEGATED LEGISLATION

  • It saves parliamentary time without, in any way, undermining its overall responsibility.
  • It is conducive to flexibility.
  • It permits the utilization of expert knowledge.
  • Since officials are the midst of the situation in which the law operates, they are ideally suited to supply details best calculated to attain the statutory objective.
  • Rulemaking power to the executive makes way for the consolation of affected interest. It becomes possible to make practical adjust in policy execution to suit popular wishes.
  • Parliament is not always in session. Therefore, an executive should be suitably empowered to face emergencies.

DISADVANTAGES OF DELEGATED LEGISLATION

It has aroused moral fear and led some thinkers to identify it with the virtual renunciation of democracy.

The principal criticisms against the system are the following:

  • The official in their zeal for “getting things done” are prone to ignore popular will.
  • Sometimes, matters of vital importance including policy matters are delegated to the executive. This is objectionable.
  • It may lead to the lead to the legislature having diminished control over executives and significance.
  • In the name of technical law-making by executive sometimes even basic or those which can be made by the legislature are passed on.

SAFEGUARDS

Since delegated legislation is a necessary evil. So some safeguards and control are necessary and desirable.

  • Limits to law-making power given to the executive should be carefully defined by the enabling acts.
  • The jurisdiction of the court should not be curtailed.
  • Parliamentary control and supervision should be strengthened.
  • Explanatory notes should be attached to all regulation.
  • The departments should consult outside interest, which is directly affected by the proposed exercise of rule-making powers.
This blog is written by Pragya Sharma, Amity University.

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