11/1/2014

Mrunal [Polity] Delegated legislation: meaning, advantages, criticism explained - Mrunal

- Mrunal - http://mrunal.org -

[Polity] Delegated legislation: meaning, advantages, criticism

explained
Posted By Mrunal On 21/03/2013 @ 9:54 pm In polity | 34 Comments

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What is Delegated Legislation?

Advantages of Delegated Legislation
Lack of Time
Lack of Expertise
More flexible
Anti-Arguments
Safeguards
#1L Parliamentary Safeguards:
#2: Judicial Safeguards:
Mock Questions

What is Delegated Legislation?

MP/MLAs make the law only in a broad skeletal form.
Then executive (union/state Government and its bureaucrats) fill up the minor technical
details.
When legislators outsources the law making work (partially) to the executives
(Bureaucrats), this is known as Delegated Legislation / subordinate legislation.
In other words, delegated legislation =When parliament confers the law making power to
the executive.
For example, legislature enacts a law regarding the registration of Motor Vehicles. Then
executive (Government and its bureaucracy) make provisions regarding who will get the
license and how? (Bring proof of residence, Passport size photos etc. youll have to pass a
written test on traffic signs, then youll have to drive vehicle in presence of RTO inspector
and so on)

Advantages of Delegated Legislation

Delegated Legislation is universally recognized and is both desirable and legitimate.

Lack of Time
Parliament and State Legislative assembly (SLA) are too busy, theyve to make laws
affecting every ones life from womb to tomb.
And often these houses are adjourned due to shouting and ruck sacking of MPs/MLAs.
In such situation, delegated legislation is inevitable.

Lack of Expertise
Modern legislation requires technical expertise of the subject matter for example IT
security, money laundering, clinical research etc.
MP/MLAs are representatives of people. Theyre not representatives of physics, chemistry,
economics or medical science.
Therefore, Parliament / SLA is not omniscient (=knowing everything).
Parliament/SLA does not possess the expertise to decide whether thalidomide or lomotil
should be administered to expecting mothers, or what type of powers should be given to an
investigating officer dealing with IT security.
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Mrunal [Polity] Delegated legislation: meaning, advantages, criticism explained - Mrunal

So it is better to allow bureaucracy to fill out those details in a law.

More flexible
In delegated legislation, parliament / SLA makes law in a broad skeletal form. Then
executive (Government/ bureaucrats) fill up the minor details. So those minor details can
be changed immediately without requiring a formal amendment in the parliament / SLA. =
more flexible.
Delegated legislation can be rapidly adjusted to meet the local requirements. (e.g. during
outbreak of epidemic, natural disaster).
Delegated legislation helps during unforeseen crisis e.g. war, epidemic, natural disaster,
economic crisis etc.
Delegated Legislation allows experimentation. In the light of experience, you can change it
immediately.

Anti-Arguments
1. The argument that politicians lack technical expertise is hollow because even executives
(bureaucrats) are not expert on all technical matters, theyd need to consult the experts in
the respective field (e.g. medicine, IT, economics etc.)
2. Government (and its Bureaucrats) often make provisions under delegated legislation that it
becomes difficult and cumbersome for common man to seek remedy even in the courts. For
example, in 1999, Department of Telecommunications had issued a notification under the
TRAI Act that if there is any dispute between licensee (company) vs Government, then only
Government can make reference to TRAI. (Meaning company cannot directly approach TRAI
in case of telecom related dispute.) this is a blatant misuse of delegated legislative powers.
3. Law making power in the hands of executive = curtails individual liberty, leads to
arbitrariness and injustice.
4. sometimes even tax related laws are also delegated, it goes against the principle of no
taxation without representation.
5. Administrators dont consult common people even while making laws that affect their lives.
6. Delegated legislation will decrease the control of legislature over executives.
7. The constitution entrusts the duty of law making to the parliament and the various state
legislatures. They cannot betray the trust and transfer this duty to some other authority.
8. In the name of technical law making by executive sometimes even basic or those that can
be made by the legislature.
9. The executive is unconnected with the people and thus they would not take into account a
lot of substantive interests of people. Theyre more focused on technicalities of
implementation or whatever serves their interest. (e.g. presently under R.T.I act, the
bureaucracy must give information within 30 days. But if the same R.T.I law making was
delegated to them, theyd have given deadline of 90 days instead of 30 days!)
10. Parliament does not have adequate facilities to scrutinize every piece and section of
delegated legislation. (The parliamentary committee on subordinate legislation is not a
Committee of technical experts. hence lacks the acumen to check.) this turn delegated
legislation into one form of despotism.

Safeguards
#1L Parliamentary Safeguards:
Parliament has various Committees (like Public accounts Committee, departmental standing
Committees). Similarly there is one Committee on Subordinate legislation. It carries out
detailed scrutiny of all the rules framed by the executives through delegated legislation.
The committee then submits its report to the speaker of the Lok. A copy also tabled in
Rajya Sabha.
If executives make some mischief in law making, parliament / SLA can always over ride it.
Delegated legislation is meant to save the time of legislators without undermining their
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Mrunal [Polity] Delegated legislation: meaning, advantages, criticism explained - Mrunal

responsibility .

#2: Judicial Safeguards:

Judiciary can declare a delegated legislative acts as invalid if
1. The parent act (enabling act) itself is ultra vires (against the Constitution).
2. The provisions of subordinate legislation violates the Constitution
3. Subordinate legislation is moving in a different direction than the parent act (enabling act).

Mock Questions
1. What is the meaning of Delegated legislation
a. When parliament confers the law making power to the judiciary.
b. When executive confers the law making power to the parliament.
c. When parliament confers law making power to state legislative assemblies.
d. When parliament confers the law making power to the executive.
2. Which among the following Committees of parliament, is responsible for scrutinizing
delegated legislation?
a. Committee of privileges
b. General purpose Committee
c. Rules Committee
d. Committee on subordinate legislation.
3. What is the purpose of Art 50 in the Constitution of India?
a. Separation of legislature from the executive.
b. Separation of law making power from law executing power.
c. Separation of judiciary from executive.
d. Separation of delegated legislation from enabling legislation.
4. Which among the following arguments favors delegated legislation?
a. Bureaucrats are incompetent and greedy.
b. Legislators have sufficient time and expertise to enact every law in full detail.
c. legislators donot have sufficient time and expertise to enact every law in full detail.
d. judiciary is better equipped to enact laws than legislature.
5. The prerequisite for a delegated legislation is:
a. 2/3 rd majority of all members of both the houses.
b. 2/3 rd majority of all members of only lok sabha
c. 2/3 rd majority of all members of only Rajya Sabha
d. None of above.
6. Delegated legislation concept is applicable to
a. Only parliament
b. Only state legislative assembly
c. Both
d. None of above.

Ref
1. Major Inputs from Mr.Palas Nuwal
2. Public Administration by Avasthi and Maheswari.
3. http://www.preservearticles.com/2012032528857/what-is-delegated-legislation-andwhich-are-the-factors-responsible-for-its-increase.html
4. http://www.mightylaws.in/418/definitions-delegated-legislation-growth
5. IGNOU PUBLIC POLICY PDF
6. Introduction to the Constitution Of India Sharma & Sharma.

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