Delegated legislation

What is Delegated Legislation?

• MP/MLAs make the law only in a broad skeletal form.
• Then executive (union/state Government  and its bureaucrats) fill up the minor technical details.
• When legislators outsources the law making work (partially) to the executives (Bureaucrats), this is known as Delegated Legislation / subordinate legislation.
• In other words, delegated legislation =When parliament confers the law making power to the executive.
• For example, legislature enacts a law regarding the registration of Motor Vehicles.  Then executive (Government  and its bureaucracy) make provisions regarding who will get the license and how? (Bring proof of residence, Passport size photos etc. you’ll have to pass a written test on traffic signs, then you’ll have to drive vehicle in presence of RTO inspector and so on)

Advantages of Delegated Legislation

• Delegated Legislation is universally recognized and is both desirable and legitimate.

Lack of Time

• Parliament and State Legislative assembly (SLA) are too busy, they’ve to make laws affecting every one’s life from womb to tomb.
• And often these houses are adjourned due to shouting and ruck sacking of MPs/MLAs.
• In such situation, delegated legislation is inevitable.

Lack of Expertise

• Modern legislation requires technical expertise of the subject matter for example IT security, money laundering, clinical research etc.
• MP/MLAs are representatives of people. They’re not representatives of physics, chemistry, economics or medical science.
• Therefore, Parliament / SLA is not omniscient (=knowing everything).
• Parliament/SLA does not possess the expertise to decide whether thalidomide or lomotil should be administered to expecting mothers, or what type of powers should be given to an investigating officer dealing with IT security.

So it is better to allow bureaucracy to fill out those details in a law.

More flexible

• In delegated legislation, parliament / SLA makes law in a broad skeletal form. Then executive (Government/ bureaucrats) fill up the minor details. So those minor details can be changed immediately without requiring a formal amendment in the parliament / SLA. = more flexible.
• Delegated legislation can be rapidly adjusted to meet the local requirements. (e.g. during outbreak of epidemic, natural disaster).
• Delegated legislation helps during unforeseen crisis e.g. war, epidemic, natural disaster, economic crisis etc.
• Delegated Legislation allows experimentation. In the light of experience, you can change it immediately.

Anti-Arguments

• The argument that politicians lack technical expertise is hollow because even executives (bureaucrats) are not expert on all technical matters, they’d need to consult the experts in the respective field (e.g. medicine, IT, economics etc.)
• Government (and its Bureaucrats) often make provisions under delegated legislation that it becomes difficult and cumbersome for common man to seek remedy even in the courts. For example, in 1999, Department of Telecommunications had issued a notification under the TRAI Act that if there is any dispute between licensee (company) vs Government, then only Government can make reference to TRAI. (Meaning company cannot directly approach TRAI in case of telecom related dispute.) this is a blatant misuse of delegated legislative powers.
• Law making power in the hands of executive = curtails individual liberty, leads to arbitrariness and injustice.
• sometimes even tax related laws are also delegated, it goes against the principle of “no taxation without representation.”
• Administrators don’t consult common people even while making laws that affect their lives.
• Delegated legislation will decrease the control of legislature over executives.
• The constitution entrusts the duty of law making to the parliament and the various state legislatures. They cannot betray the trust and transfer this duty to some other authority.
• In the name of technical law making by executive sometimes even basic or those that can be made by the legislature.
• The executive is unconnected with the people and thus they would not take into account a lot of substantive interests of people. They’re more  focused on technicalities of implementation or whatever serves their interest. (e.g. presently under R.T.I act, the bureaucracy must give information within 30 days. But if the same R.T.I law making was delegated to them, they’d have given deadline of 90 days instead of 30 days!)
• Parliament does not have adequate facilities to scrutinize every piece and section of delegated legislation. (The parliamentary committee  on subordinate legislation is not a  Committee of technical experts. hence lacks the acumen to check.) this turn delegated legislation into one form of despotism.

Safeguards

1. Parliamentary Safeguards:

• Parliament has various Committees (like Public accounts Committee, departmental standing Committees). Similarly there is one Committee on Subordinate legislation.  It carries out detailed scrutiny of all the rules framed by the executives through delegated legislation.
• The committee then submits its report to the speaker of the Lok. A copy also tabled in Rajya Sabha.
• If executives make some mischief in law making,  parliament / SLA can always over ride it. Delegated legislation is meant to save the time of legislators without undermining their responsibility .

2. Judicial Safeguards:

Judiciary can declare a delegated legislative acts as “invalid” if

• The parent act (enabling act) itself is ultra vires (against the Constitution).
• The provisions of subordinate legislation violates the Constitution
• Subordinate legislation is moving in a different direction than the parent act (enabling act).