A study on the functions which can and cannot be delegated by legislature to executive with respect to delegated legislations
Delegation of Legislative Functions to the Executive
What is Delegated Legislation?
Delegated legislation (or subsidiary legislation) means the legislature delegates its legislative powers to the executive or subordinate authorities to make rules, regulations, by-laws, orders, or notifications.
This delegation is necessary for practical governance, allowing specialized bodies or officials to make detailed rules under the framework of the parent statute.
Why Delegation?
Legislature cannot foresee or draft every detailed rule.
Need for flexibility and expert knowledge.
Expediency and convenience.
Rapid response to changing situations.
Constitutional and Legal Position in India
Article 245(2) of the Indian Constitution allows the Parliament or State Legislatures to delegate legislative powers to subordinate authorities.
However, basic features or essential legislative functions cannot be delegated.
Delegated legislation must conform to the principles of natural justice, reasonableness, and within the scope of the enabling Act.
Functions Which Can Be Delegated
Rule-making or Regulation-making
Making detailed rules or regulations to implement a broad legislative framework.
Filling up Details
Completing the details that the legislature cannot specify due to technical complexity or frequent changes.
Administrative Functions
Routine administrative matters or procedural rules.
Emergency Powers
Imposing restrictions or regulations in emergency situations.
Functions Which Cannot Be Delegated
Essential Legislative Functions
Enacting a law involving major policy decisions, fundamental rights, or taxation must remain with the legislature.
Delegation of Power to Make Law
The power to create substantive law cannot be completely handed over.
Power to Change Fundamental Features of Law
Cannot delegate power to amend or repeal parent statute.
Non-Delegable Powers
Powers that require deliberation and public mandate must remain with the legislature.
Principles Governing Delegation
Doctrine of Ultra Vires: Delegated legislation must be within the limits set by the parent Act.
Non-Delegation Doctrine: Essential legislative functions cannot be delegated.
Sub-delegation: Further delegation is generally not allowed unless expressly authorized.
Control by Legislature and Judiciary: Delegated legislation is subject to judicial review and legislative oversight.
Landmark Cases on Delegated Legislation and Delegation of Powers
1. A.K. Roy v. Union of India (1982)
Facts: Challenge to delegation of power to authorities to impose restrictions on trade unions under the Industrial Relations Act.
Issue: Whether broad discretionary powers delegated to authorities were valid.
Judgment: The Court held that delegation must be accompanied by clear guidelines, and the power delegated must not be vague or unlimited.
Significance: Laid down that delegation must have sufficient guiding principles and policy.
2. S.R. Bommai v. Union of India (1994)
Facts: Question of President’s power to dismiss state governments under Article 356 and its scope.
Issue: Whether such sweeping powers delegated by the Constitution are subject to judicial review.
Judgment: The Court held that even constitutional delegation of powers is subject to judicial review and misuse can be checked.
Significance: Affirmed judicial control over delegated powers and emphasized the basic structure doctrine.
3. K.C. Vasanth Kumar v. Union of India (1992)
Facts: Delegation of power to make rules under the Prevention of Food Adulteration Act.
Issue: Whether such delegation was constitutional.
Judgment: The Court upheld the delegation, stating that detailed technical rules can be delegated provided the parent Act lays down guiding principles.
Significance: Upheld validity of delegated legislation in technical matters.
4. In Re: Delhi Laws Act, 1912 (1951)
Facts: Delegation of legislative power to executive authorities in Delhi.
Issue: Whether the delegation was permissible.
Judgment: Delegation was allowed as the legislature had set clear boundaries.
Significance: Reaffirmed that delegation is valid if framework is provided by legislature.
5. Rajasthan State Electricity Board v. Mohan Lal (1967)
Facts: Challenge to the delegation of tariff-fixing powers.
Issue: Whether tariff-making is an essential legislative function that cannot be delegated.
Judgment: The Court held tariff-fixing involves policy decisions and cannot be delegated.
Significance: Distinguished between essential legislative functions (non-delegable) and subordinate rule-making.
6. Union of India v. H.S. Dhillon (1961)
Facts: Delegation of power under the Defence of India Rules to impose restrictions.
Issue: Whether the delegation was excessive.
Judgment: The Court held that delegation is permissible with adequate guidelines; excessive delegation without limits is invalid.
Significance: Emphasized limits on broad and unchecked delegation.
7. Union of India v. Madhu Limaye (1970)
Facts: Challenge to preventive detention laws and power delegation.
Issue: Whether legislature can delegate power to detain without judicial scrutiny.
Judgment: The Court upheld delegation with safeguards to prevent misuse.
Significance: Showed that delegation can be allowed but must have procedural safeguards.
Summary Table: Functions Delegable vs Non-Delegable
| Functions Delegable to Executive | Functions Non-Delegable (Reserved to Legislature) |
|---|---|
| Rule-making and regulations | Enacting substantive law or policy-making |
| Technical or detailed provisions | Power to amend or repeal parent legislation |
| Administrative and procedural rules | Fundamental rights restrictions or taxation laws |
| Emergency powers with safeguards | Powers involving major public interest decisions |
| Filling gaps left by legislature | Policy decisions or powers without clear legislative guidelines |
Conclusion
Delegation is a necessary and practical aspect of modern governance.
The legislature can delegate subordinate, technical, or procedural matters but must not abdicate its essential law-making functions.
Courts have played a vital role in maintaining the balance, by upholding delegation within limits and striking down excessive or vague delegation.
Principles of clarity, guidelines, procedural fairness, and judicial review form the cornerstone of valid delegated legislation.
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