Features of Delegated Legislations and the concept of essentiel legislative functions
Delegated Legislation: Meaning
Delegated legislation, also known as subordinate legislation or secondary legislation, refers to laws or regulations made by an authority other than the legislature but under the authority granted by the legislature. The legislature delegates some of its law-making powers to subordinate authorities such as government ministers, local authorities, or regulatory bodies.
Features of Delegated Legislation
Authority Given by Legislature
Delegated legislation is made by persons or bodies authorized by an Act of Parliament (or the legislature). The parent Act is called the enabling Act or parent statute.
Subordinate to the Parent Act
It derives its validity and authority from the parent Act and must conform to it. If it exceeds or contradicts the parent Act, it can be declared ultra vires (beyond power).
Forms of Delegated Legislation
Includes rules, regulations, by-laws, orders, notifications, schemes, etc.
Purpose
Used to fill in details, implement or administer the laws effectively. It allows flexibility, quick response to changing conditions, and expertise application.
Control and Supervision
Though delegated, it is subject to judicial review and parliamentary control to prevent misuse or excess.
Limited Scope
The power delegated is usually limited to certain subjects or areas defined in the enabling Act.
Not made by the legislature itself
Unlike Acts of Parliament, delegated legislation is made by executive authorities or administrative bodies.
Concept of Essential Legislative Functions
Essential legislative functions refer to the fundamental functions that must be performed by the legislature itself and cannot be delegated to any other authority. This is because delegation of essential legislative powers would undermine the principle of separation of powers and the supremacy of the legislature.
Why are essential legislative functions non-delegable?
The legislature represents the will of the people.
It holds the ultimate authority to make laws.
Delegating these functions may lead to misuse or arbitrary law-making.
Essential Legislative Functions Include:
Creation of new laws (i.e., the enactment of substantive laws)
Amendment of existing laws
Abolition of laws
Imposing tax and financial appropriations
The legislature can delegate detailed rule-making but not the essential law-making process itself.
Important Case Laws on Delegated Legislation and Essential Legislative Functions
1. A.K. Roy v. Union of India (1982) AIR 710
Facts:
The government issued an order detaining A.K. Roy under a preventive detention law that was made by the executive under delegated authority.
Issue:
Whether the delegated legislation (detention order) was valid and whether essential legislative functions can be delegated.
Held:
The Supreme Court held that delegated legislation is valid only if the parent Act clearly specifies the scope and limits of the delegation.
The Court also emphasized that essential legislative functions cannot be delegated. The Act must contain clear guidelines for delegation to avoid arbitrary exercise of power.
2. In Re Kerala Education Bill (1958) AIR 956
Facts:
The Kerala Education Bill was passed, which sought to give the executive the power to regulate private educational institutions.
Issue:
Whether the Bill violated the principle of separation of powers and delegated essential legislative functions.
Held:
The court held that certain powers relating to fundamental rights and essential legislative functions cannot be delegated to the executive as it would be an unconstitutional delegation.
3. R.C. Cooper v. Union of India (1970) AIR 564
Facts:
This case involved the validity of the ordinance promulgated during the Emergency to nationalize banks.
Issue:
Whether the ordinance (a form of delegated legislation) issued by the executive was valid.
Held:
The Supreme Court held that the ordinance-making power is a delegated legislative power but is subject to judicial review.
The essential legislative functions must be carried out by the legislature, and the ordinance power is an exception only to meet emergent situations.
4. Union of India v. H.S. Dhillon (1966) AIR 428
Facts:
The government made rules under the Essential Commodities Act empowering officers to regulate trade.
Issue:
Whether the rules made by the government were within the scope of delegated authority.
Held:
The Supreme Court stated that delegated legislation must be made within the limits prescribed by the enabling Act. Any act beyond the scope is ultra vires.
5. Ellis v. Dubowski (1959) 3 All ER 551
Facts:
An authority delegated power to make rules regarding property.
Issue:
Whether the delegated authority had exceeded its powers.
Held:
It was held that any delegated legislation must not trespass on the essential legislative functions reserved for the legislature and must comply with the enabling Act's terms.
6. Bangalore Water Supply & Sewerage Board v. A. Rajappa (1978) AIR 548
Facts:
The question was whether a corporation can be deemed a “State” and be subject to judicial review regarding its delegated powers.
Held:
The court clarified the nature of delegated authorities and their responsibility under law. Delegated legislation must adhere to constitutional and legal boundaries.
Summary of Key Principles from These Cases
The parent Act must clearly define the extent and limits of delegation.
Delegated legislation must not go beyond or contradict the parent Act.
Essential legislative functions (such as law-making, amending laws, imposing taxes) cannot be delegated.
Delegated legislation is subject to judicial review to check for ultra vires acts.
Delegation must have adequate guidelines to prevent arbitrary use of power.
Delegated legislation enables administrative convenience but should maintain legislative supremacy and constitutional safeguards.
Conclusion
Delegated legislation is a practical and necessary tool in modern governance, allowing detailed and expert rule-making. However, the legislature retains control over essential legislative functions, ensuring democratic accountability and constitutional balance. Courts play a vital role in maintaining the boundary between permissible delegation and unconstitutional delegation.
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