Delegated Legislation

Delegated legislation means laws made by a body other than Parliament or a State Legislature, using power given to it by a law. Parliament passes the main law, called the parent Act, which sets out the policy. It then allows the government, or a body like a commission, to make the detailed rules, regulations, orders, notifications or bye-laws needed to run that law. Because it sits below the parent Act, it is also called subordinate legislation.

Why does it exist?

Think of a school principal and the class teachers. The principal sets the big policy: "Every class must have a test every month." But the principal cannot decide every question paper, every date and every seating plan. The class teachers fill in those details. Parliament works like the principal. It does not have the time or the technical knowledge to decide every fee, form, syllabus or deadline. So it lays down the policy and leaves the details to experts.

Delegated legislation is needed because:

• Parliament has limited time. It meets for only a few months a year.
• Technical subjects like health, finance or telecom need expert knowledge.
• Flexibility: Details like fees or forms change often. Changing a rule is much faster than amending an Act.
• Emergencies: Quick action may be needed during a crisis.

Where did it come from?

Delegated legislation grew with the modern welfare state in the 20th century, when governments took on many more tasks. In Britain, the Committee on Ministers' Powers (the Donoughmore Committee, 1932) studied it and accepted it as necessary, with safeguards. In India, the question was settled early by the Supreme Court in In re Delhi Laws Act (1951), the first advisory opinion given under Article 143 (the President's power to ask the Supreme Court for its opinion).

A seven-judge bench held that the legislature can delegate power to make details, but it cannot delegate its essential legislative functions. It must lay down the policy itself.

The key rule: essential functions cannot be delegated

Essential legislative functions mean deciding the policy of the law and making it a binding rule of conduct. The legislature must decide these itself. If it hands over power without giving any clear policy or guideline, it is called excessive delegation, and a court can strike the law down. Later cases built on this:

• Harishankar Bagla v. State of Madhya Pradesh (1954): delegation is valid if the parent Act gives enough policy and guidance.
• Gwalior Rayon Silk Mfg. Co. v. Assistant Commissioner of Sales Tax (1974): the court again said the legislature must lay down the policy and guidelines, and cannot give up its essential role.

How does it work?

Step by step:

1. Parliament passes a parent Act with an enabling section, for example "The Central Government may, by notification, make rules" or "The Commission may make regulations".
2. The authority drafts the rules or regulations. Often a draft is published for public comments first.
3. The final version is notified in the Official Gazette. It becomes law from the date fixed in it.
4. It is laid before Parliament (or the State Legislature), usually for 30 days.
5. Parliament can modify or annul it during that time.

Types of delegated legislation

• Rules: usually made by the government (for example, the Central Government).
• Regulations: usually made by a statutory body such as a commission or regulator (for example, SEBI, RBI, or a professional commission).
• Bye-laws: made by local bodies like municipalities.
• Orders and notifications: used, for example, to bring a law into force or change a schedule.

How is it controlled?

There are three kinds of control:

• Parliamentary control: Rules are laid before Parliament. The laying can be:
• simple laying (just placed before the House for information),
• negative laying (it takes effect, but the House can annul or modify it), or

• affirmative laying (it takes effect only if the House approves). Each House also has a Committee on Subordinate Legislation that checks whether rules stay within the powers given by the parent Act. The Lok Sabha committee was first set up in 1953 and the Rajya Sabha committee in 1964. Each has 15 members.

• Judicial control: Courts can strike down delegated legislation if it is ultra vires, that is, beyond powers. This happens if it goes beyond the parent Act, violates the Constitution (for example, Fundamental Rights), or if the parent Act itself delegated excessively. Rules can also be struck down if they are clearly arbitrary.

• Procedural control: Publication in the Gazette, prior public consultation where the Act requires it, and consulting expert bodies.

India's examples

Almost every major Indian law works through delegated legislation. The Income-tax Act works through the Income-tax Rules. The RBI and SEBI issue regulations for banks and markets. Health regulators like the National Medical Commission and the National Commission for Allied and Healthcare Professions issue regulations on education, registration and ethics. The NCAHP Act, 2021, for example, lets the Central Government make rules (Section 65), the State Governments make rules (Section 68) and the Commission make regulations, and requires all central rules and regulations to be laid before each House of Parliament for 30 days (Section 67).

Commonly confused concepts

• Rules vs regulations: Both are delegated legislation. Rules are usually made by the government. Regulations are usually made by the statutory body itself. Under many Acts, regulations must be consistent with the Act and the rules.
• Delegated legislation vs ordinance: An ordinance is made by the President (Article 123) or a Governor (Article 213) when the legislature is not in session. It comes from the Constitution, not from a parent Act, and has the same force as an Act. Delegated legislation comes from a parent Act and ranks below it.
• Delegated legislation vs executive instruction: Rules and regulations notified under an Act have the force of law. Circulars, guidelines and office memos that are not issued under any law's power usually only guide officers and do not bind citizens the same way.
• Removal of difficulties clause: Many Acts let the government issue orders to remove difficulties in implementing a new law, usually for a limited time. The NCAHP Act allows this only for three years from commencement (Section 69). If such a clause lets the executive change the parent Act itself, it is called a "Henry VIII clause", and courts view such clauses with suspicion.

Issues, criticism and the way forward

• Weak scrutiny: A huge number of rules and regulations are made every year. Parliament rarely debates them, and the committees cannot examine all of them in depth.
• Delays in making rules: Many laws stay idle for years because rules or regulations are not framed. The NCAHP Act is one example where regulations came years after the Act.
• Going beyond the Act: Sometimes rules add new duties or penalties that the Act never intended, which leads to court cases.
• Too much power to the executive: Critics say broad enabling clauses let the government make important policy without Parliament's full debate.
• Way forward: Experts suggest time limits for framing rules, mandatory public consultation on drafts (as in the Pre-Legislative Consultation Policy, 2014), stronger committee scrutiny, and publishing all rules in easy, searchable form.

Concepts to Know

• Parent Act (enabling Act): The main law passed by the legislature that gives someone the power to make rules or regulations.
• Ultra vires: A Latin term meaning "beyond the powers". A rule that goes beyond what the parent Act or the Constitution allows is ultra vires and invalid.
• Official Gazette: The government's official publication in which laws, rules and notifications are published. Publication makes them official.
• Laying: Placing a rule or regulation on the table of each House of Parliament so that members can examine it, change it or cancel it.
• Presidential Reference (Article 143): The President's power to ask the Supreme Court for its opinion on a question of law or fact of public importance.