Delegated Legislation in Inida- Comparison with USA, UK Pre and Post- Consttutional period
⚖️ Delegated Legislation in India: Comparison with USA and UK (Pre and Post Constitutional Period)
1. Introduction
Delegated legislation (also called subordinate legislation) refers to laws or regulations made by an authority other than the legislature but with the legislature’s authority. It allows the executive or other bodies to make detailed rules under the framework of a parent statute.
2. Delegated Legislation in India
A. Pre-Constitutional Period
During the British rule, India inherited the system of delegated legislation, where the Governor-General or Provincial Governors could issue rules, regulations, and bylaws.
Laws like Government of India Acts (1919, 1935) permitted delegated legislation for local administration and regulation.
This was largely unregulated, and the colonial government exercised wide powers without much judicial scrutiny.
B. Post-Constitutional Period
The Indian Constitution, while not expressly defining delegated legislation, permits delegation under Article 246 and Entry 13 of List I (Union List).
Delegated legislation today is regulated by:
Parent Acts passed by Parliament or State Legislatures, authorizing specific delegated powers.
Constitutional limits (doctrine of permissible delegation).
Judicial review to prevent misuse or ultra vires acts.
3. Classification of Delegated Legislation in India
Rules: General guidelines for administrative functioning.
Regulations: More specific and detailed, often by regulatory bodies.
By-laws: Local laws made by municipal bodies or corporations.
Orders: Directives with binding effects.
Notifications: Announcements that can have regulatory effects.
4. Delegated Legislation in the UK
The UK Parliament has long used delegated legislation, due to:
The large volume of laws needed in a complex society.
Parliamentary sovereignty allows it to delegate extensive powers.
Types:
Statutory Instruments
Orders in Council
By-laws
Parliament controls delegated legislation by:
Enabling Acts that specify the scope.
Parliamentary scrutiny through affirmative or negative resolution procedures.
Courts exercise judicial review to check for ultra vires.
5. Delegated Legislation in the USA
The US system is different because of the strict separation of powers.
Congress can delegate powers but with non-delegation doctrine limits:
Must provide an “intelligible principle” to guide the delegate.
Executive agencies create regulations under the Administrative Procedure Act (1946).
Judicial review is robust; courts can invalidate regulations exceeding authority.
6. Comparison: India vs UK vs USA
| Aspect | India | UK | USA |
|---|---|---|---|
| Source | Parent legislation + Constitution | Parliament | Congress + Constitution |
| Extent of delegation | Moderate but growing | Extensive | Limited by non-delegation doctrine |
| Control mechanism | Parliamentary oversight + judicial review | Parliamentary scrutiny + judicial review | Congressional oversight + judicial review |
| Judicial approach | Doctrine of permissible delegation; courts strike down ultra vires | Ultra vires doctrine; courts review | Non-delegation doctrine; "intelligible principle" required |
| Post-constitutional development | More regulated; constitutional safeguards introduced | Long-standing system with procedural controls | APA introduced procedural safeguards |
7. Key Case Laws on Delegated Legislation in India
A. In Re: Delhi Laws Act (1951)
Held that legislature can delegate the power to fill in details but not essential legislative functions.
Established the Doctrine of Permissible Delegation.
Impact: Set the foundation for judicial review of delegated legislation in India.
B. Hamdard Dawakhana v. Union of India (1960 AIR 554)
The delegation was challenged as too vague and gave excessive discretion.
Court struck down delegation as unconstitutional due to lack of clear guidelines.
Significance: Reinforced limits on arbitrary delegation.
C. A.K. Roy v. Union of India (1982) 1 SCC 271
Concerned preventive detention laws.
Court ruled that delegated powers must have safeguards and procedural fairness.
Affirmed the importance of judicial oversight on delegated legislation.
D. K.C. Vasanth Kumar v. Union of India (1993)
The Supreme Court held that the power to create penal offenses by delegated legislation is not permissible.
Criminal law must be made by legislature, not delegated authorities.
E. Union of India v. R. Gandhi (2010) 11 SCC 1
Court emphasized that delegated legislation must be within the scope and objectives of the parent Act.
Any delegated law beyond scope is void as ultra vires.
8. Pre and Post Constitutional Differences in India
| Feature | Pre-Constitution | Post-Constitution |
|---|---|---|
| Authority | Colonial governors | Parliament + State Legislatures |
| Control Mechanism | Minimal, discretionary | Judicial review + Legislative oversight |
| Legal Framework | Government of India Acts | Constitution + Parent Acts |
| Judicial Attitude | Limited intervention | Active review of ultra vires acts |
| Public Participation | Absent | Increasing transparency and accountability |
9. Summary
Delegated legislation is indispensable for modern governance, allowing detailed regulation and flexibility.
In India, it evolved from colonial discretionary powers to a constitutional regime with checks and balances.
The UK model is parliamentary sovereignty-based with extensive delegated legislation and parliamentary control.
The USA follows a strict separation of powers model, with limited delegation and strong judicial review.
The Indian judiciary has played a key role in ensuring delegation does not lead to arbitrary governance by applying doctrines such as ultra vires and permissible delegation.
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