BharatNotes What is Delegated Legislation?
Delegated legislation is law made not by the legislature itself but by the executive (or another subordinate authority) under powers granted by a parent statute. Parliament lays down the broad policy in the parent Act and authorises the government to frame the detailed rules, regulations, by-laws, orders and notifications needed to operate the law. Because legislatures lack the time and technical expertise to specify every detail, delegation has become an inescapable feature of the modern administrative state. It is also called subordinate or secondary legislation because it is subordinate to, and draws its validity from, the enabling Act.
Key Features and Forms
- Parent/enabling Act: the statute that confers rule-making power; the delegated law cannot travel beyond the limits set by it.
- Common forms: rules and regulations made by ministries/departments, by-laws made by local bodies (municipalities, panchayats), and statutory orders/notifications.
- Ultra vires limit: delegated legislation that exceeds the parent Act, or violates fundamental rights, is invalid.
| Aspect | Primary Legislation | Delegated Legislation |
|---|---|---|
| Maker | Parliament / State Legislature | Executive or subordinate authority |
| Source of authority | The Constitution | The parent / enabling Act |
| Examples | Acts, Statutes | Rules, regulations, by-laws, orders |
| Flexibility | Slow to amend | Quickly revised to meet changing needs |
The "Essential Legislative Functions" Doctrine
The landmark advisory opinion In Re The Delhi Laws Act (AIR 1951 SC 332) settled India's position: the legislature may delegate, but it cannot delegate its essential legislative function — namely, laying down the legislative policy and the guiding standards. Delegation accompanied by clear policy and guidelines is valid; uncontrolled or "excessive" delegation amounts to abdication and is unconstitutional. In Hamdard Dawakhana v. Union of India (1960) the Supreme Court struck down provisions of the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954 for excessive delegation because they lacked clear standards for the executive.
Control over Delegated Legislation
Two checks operate together:
- Parliamentary control: through the Committee on Subordinate Legislation (one each in the Lok Sabha and the Rajya Sabha), and through the "laying" procedure by which rules are placed before the House. The Lok Sabha Committee was first constituted in 1953; each Committee has 15 members nominated by the presiding officer, and ministers are not made members (as per Lok Sabha/Rajya Sabha procedure). It examines whether rule-making powers conferred by the Constitution or delegated by Parliament are being properly exercised.
- Judicial control: courts may strike down delegated legislation that is ultra vires the parent Act, the Constitution, or that infringes fundamental rights — the strongest safeguard against misuse.
Why It Matters for Governance
Delegated legislation makes governance flexible and technically sound, but it concentrates law-making power in the executive, raising accountability concerns. Robust laying procedures, an active Committee on Subordinate Legislation, and vigilant judicial review are essential to keep delegated power tethered to the policy that Parliament actually intended.
