By SHWETA KUMAR
Abstract
Delegated Legislation or Subordinate Legislation, as it is known in India, plays an indispensable role in the body of laws as it gives the minutest details and takes responsibility for its implementation. This paper revolves around the concept of framing, opportunities, difficulties and risks related to delegated legislation in India.
Bringing into the discussion the instruments by which delegated legislation is done, such as the part played by public authorities and the guiding principles controlling its exercise, this paper, thus, seeks to give a complete insight into the functioning of delegated legislation in the Indian legal system.
Introduction
Indicative legislation includes the power that is given by the legislature to other authorities to make detailed rules and regulations necessary for the implementation of an Act. This is the essential way for governance and the effective execution of laws in India. Delegated legislation in India is enabled by the Constitution and several legislative frameworks which later define scope, application, and oversight.
1. Concept and Purpose of Delegated Legislation
1.1 Definition and Scope
Delegated legislation is a set of laws, regulations, or orders developed by individuals or group-authority other than the main administrative body or primary legislative. Parliament or Supreme Authority. This legislation is established on the basis of the provisions given by the main legislation & enacted by the spot. In India, legislative delegation comprises of subordinate rules, regulations, orders, and by-laws.
Definition:
Delegated Legislation is a protocol that gives allowance to the primary Institution to transfer its power to form regulations or policies to the executive branch, other than the President or Local bodies, which, in turn, will create the detailed regulations, blasting out the legal specifications of an Act. It is presently the legislative body's legislative mandate on making extensive policy suggestions whereas the application of the rules is the work of specialized organizations.
Scope:
Regulation is the broad approach encompassing instruments such as: Rules: Error-free details by the prime authority of a specific Act. Corresponds: Lines ensuring that the provisions of the law are respected. Orders: Decrees coming from people or organizations like the government or leaders in a society. By-Laws: Limited application of laws implemented by municipal or geographic appropriators or sometimes a group of them to address a regional need. For example, the Environment (Protection) Act, 1986 gives the central government the power to make rules and regulations to dealing with pollution and conservation issues¹
1.2 Purpose
Delegated legislation serves several critical functions within a legal system:
Operational Efficiency:
Delegated legislation allows for detailed provisions and adjustments to be made without the need for continuous amendments to primary legislation. These results in a more efficient legislative process, as the primary legislation sets out broad principles and objectives, while delegated legislation handles the specifics.
For example, the Factories Act, 1948 outlines general principles for factory safety and health, while detailed safety standards and regulations are provided through delegated legislation².
Flexibility:
It provides the flexibility to adapt laws to changing circumstances or emerging issues. Delegated legislation can be updated more readily than primary legislation, ensuring that the legal framework remains relevant and effective in the face of new challenges.
The Reserve Bank of India Act, 1934 allows the RBI to issue regulations on monetary policy and banking operations, which can be adjusted in response to economic changes³.
3. Specialization:
Delegated legislation enables specialized agencies or departments to create regulations based on their expertise and technical knowledge. This ensures that detailed and complex aspects of legislation are handled by those with relevant experience.
For instance, the Telecommunications Act, 1885 grants powers to the Department of Telecommunications to regulate technical standards and practices within the industry⁴.1934
2. Legal Framework and Mechanisms
Legal Framework and Mechanisms
2.1 Constitutional Basis
Article 245 and 246: These articles grant legislative powers to Parliament and State Legislatures, including the authority to delegate powers to other bodies.
Article 298 and 299: These articles pertain to the powers of the Union and State Governments to enter into contracts and manage affairs, which may involve delegated legislative functions.
2.1 Constitutional Basis
· Article 245 and 246: These articles grant legislative powers to Parliament and State Legislatures, including the authority to delegate powers to other bodies.
· Article 298 and 299: These articles pertain to the powers of the Union and State Governments to enter into contracts and manage affairs, which may involve delegated legislative functions.
2.2 Types of Delegated Legislation
Delegated legislation in India can be categorized into several types, each serving distinct purposes in the legislative process. The main types include rules, regulations, orders, and by-laws. Each type plays a role in implementing and detailing the provisions of primary legislation.
2.2.1 Rules
Definition: Rules are detailed directives issued under the authority of an Act of Parliament or State Legislature. They provide the specific framework for the implementation and administration of the Act.
Example: The Rules under the Companies Act, 2013 are an example of delegated legislation.
2.2.2 Regulations
Definition: Regulations are specific rules issued by authorities under the power granted by an Act. They are generally used to enforce and manage detailed aspects of the Act’s provisions.
Example: The Securities and Exchange Board of India (SEBI) Regulations, such as the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, are designed to regulate the securities market and ensure transparency and compliance by listed companies.
2.2.3 Orders
Definition: Orders are directives issued by a government authority or minister to address specific issues or implement provisions of an Act. They are often used to deal with administrative or operational matters.
Example: The Foreign Exchange Management Act, 1999 (FEMA) empowers the Reserve Bank of India (RBI) to issue various orders related to foreign exchange transactions.
2.3 Process of Delegation
The process of delegation in the context of legislation involves several steps through which powers are conferred from the primary legislative body (Parliament or State Legislature) to other authorities for the creation of detailed rules and regulations. This process ensures that laws are effectively implemented and managed by specialized entities. Below is an outline of the typical process of delegation, focusing on the key stages involved:
1. Enabling Act
Definition: An enabling Act is the primary legislation passed by the Parliament or State Legislature that confers power upon a designated authority to make subordinate legislation. This Act outlines the broad framework, objectives, and scope of the delegated powers.
Example: The Consumer Protection Act, 2019 empowers the Central Government to make rules for the effective implementation of the Act.
2. Rule-Making Authority
Definition: The designated authority or body is responsible for drafting and implementing the subordinate legislation. This could be a government ministry, regulatory agency, or local authority with specific expertise or jurisdiction.
Example: Under the Factories Act, 1948, the Ministry of Labor and Employment is authorized to draft and enforce various rules related to factory safety, health, and working conditions².
3. Drafting of Subordinate Legislation
Definition: The drafting process involves creating detailed rules, regulations, or orders based on the powers granted by the enabling Act. This stage includes formulating the specific provisions, requirements, and procedures that will be implemented.
Example: The SEBI (Mutual Funds) Regulations, 1996 were drafted by the Securities and Exchange Board of India (SEBI) to detail the regulatory framework for mutual funds in India³.
4. Consultation
Definition: Before finalizing the subordinate legislation, consultation with stakeholders, including industry experts, affected parties, and the public, may be conducted. This helps ensure that the legislation is practical, effective, and addresses all relevant concerns.
Example: The Draft National Education Policy undergoes public consultation before being finalized to gather feedback from educators, students, and the public to refine the policy⁴.
3. Advantages of Delegated Legislation
3.1 Efficiency
Delegated legislation enables the efficient implementation of laws by allowing detailed provisions to be developed without requiring new primary legislation.
3.2 Adaptability
It provides the flexibility to quickly respond to changes in circumstances or emerging issues, ensuring that laws remain relevant and effective.
3.3 Expertise
Specialized agencies or departments can create regulations based on technical knowledge and expertise, leading to more effective and informed rule-making.
4. Challenges and Criticisms
4.1 Accountability and Oversight
A major criticism is the potential lack of effective parliamentary scrutiny over delegated legislation. The limited review mechanisms can lead to issues of accountability and transparency.
4.2 Over-delegation
There is a concern that excessive delegation of legislative power can undermine the role of the legislature and result in unchecked rule-making.
4.3 Complexity
Delegated legislation can sometimes be complex and difficult for the public to understand, affecting accessibility and transparency.
4.4 Judicial Review
While courts have the power to review delegated legislation, there can be challenges in ensuring that such reviews are conducted effectively and fairly.
5. Future Directions
5.1 Enhancing Accountability
There is a need for stronger mechanisms to ensure greater parliamentary oversight and public scrutiny of delegated legislation.
5.2 Technological Integration
Leveraging technology to improve transparency and accessibility of delegated legislation, making it easier for the public to engage with and understand the rules.
5.3 Comparative Analysis
Studying practices from other jurisdictions can provide insights into effective mechanisms for managing and overseeing delegated legislation.
CASE STUDY
Landmark judicial decisions provide critical insights into the application and limits of delegated legislation. They shape the understanding of how delegated powers are exercised and reviewed. Two notable cases in Indian jurisprudence that address these issues are The State of West Bengal v. Kesoram Industries Ltd. (2004) and Indian Oil Corporation Ltd. v. State of Bihar (1986).
The State of West Bengal v. Kesoram Industries Ltd. (2004)
Case Overview: In this landmark decision, the Supreme Court of India addressed the scope and limits of delegated legislative power. The case involved the State of West Bengal challenging the legality of certain notifications issued under the West Bengal Finance Act, 1994, which imposed tax burdens on certain industries.
MAJOR ISSUES INVOLVE
Scope of Delegated Powers: The Supreme Court examined whether the notifications issued under the Finance Act exceeded the powers conferred by the enabling Act. The Court emphasized that delegated legislation must stay within the boundaries defined by the parent Act.
Legislative Intent: The Court reiterated that while delegated authorities have discretion to implement the Act's provisions, their actions must align with the legislative intent and not exceed the powers conferred by the primary legislation.
Principle of Subsidiarity: The ruling reinforced the principle that delegated legislation should not undermine or overstep the framework set by the primary legislation.
Significance
This decision underscores the importance of adhering to the limits of delegated powers and maintaining alignment with the legislative intent of the primary Act. It highlights the role of judicial review in ensuring that delegated legislation does not encroach upon the scope of authority granted by the legislature
Indian Oil Corporation Ltd. v. State of Bihar (1986)
Case Overview: In this case, the Supreme Court addressed the extent of authority granted under delegated legislation and the principles of judicial review. The case concerned the validity of certain provisions under the Bihar Sales Tax Act, 1944, which were challenged by Indian Oil Corporation Ltd. regarding their implications for sales tax.
MAJOR ISSUES INVOLVE
Extent of Delegated Authority: The Supreme Court examined whether the authority delegated by the Bihar Sales Tax Act was exceeded by the provisions in question. The Court assessed if the delegated authority stayed within the framework of the primary Act.
Judicial Review: The case highlighted the role of judicial review in scrutinizing the validity of delegated legislation. The Court emphasized that while delegated authorities have the power to make detailed rules, they must operate within the limits set by the parent Act.
Consistency with Primary Legislation: The decision reinforced that delegated legislation must be consistent with the provisions and intent of the primary legislation to ensure legal validity.
Significance
This decision is significant in defining the boundaries of delegated legislative authority and underscores the necessity of judicial review in maintaining the legitimacy of subordinate legislation. It clarifies that delegated authorities must adhere to the framework established by the primary Act.
Conclusion
Delegated legislation is a vital element of India’s legal system, providing the flexibility to implement and manage detailed aspects of laws efficiently. By enabling specialized authorities to formulate specific rules and regulations, it ensures that broad legislative frameworks are translated into actionable guidelines without frequent amendments to primary laws.
However, challenges related to accountability and transparency persists. Limited scrutiny of subordinate regulations and opaque processes can undermine their legitimacy. To address these issues, it is crucial to enhance oversight mechanisms, such as strengthening parliamentary review committees and increasing public involvement in the legislative process.
Additionally, leveraging technology can significantly improve access to and understanding of delegated legislation. Digital platforms can facilitate transparency and public engagement, making it easier for citizens to track and interact with regulatory changes.
Comparative analysis with practices from other jurisdictions, such as the UK's review mechanisms, can provide valuable insights into effective management and oversight. By adopting these best practices and integrating technological advancements, India can strengthen its framework for delegated legislation, ensuring that it remains a robust tool for effective governance while upholding accountability and transparency.
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