Delegated Legislation

In one line

Parliament cannot write every rule the country needs, so it passes an Act saying what it wants and leaves a Minister or a board to write the detail; a court asks only whether Parliament kept the deciding for itself.

In the wording a student can write in an exam: delegated legislation, also called subordinate legislation, is law made by an executive or other authority under a power conferred by a statute. It is permitted, because the legislative power in articles 245 and 246 carries a power to delegate what is ancillary. It is limited by the doctrine of excessive delegation: a legislature may not part with its essential legislative function, which is to declare the legislative policy, lay down a standard, and enact that policy as a binding rule of conduct. Delegation beyond that is abdication and the parent provision is void. The doctrine was settled in In re The Delhi Laws Act, 1912 and restated in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd v. Assistant Commissioner of Sales Tax: "an unlimited right of delegation is not inherent in the legislative power itself".

Why the law has this at all

A legislature meets for a limited number of days. The State it governs runs water systems, drug approvals, air safety and pension schemes. No House can settle in a statute the permitted level of a contaminant or the format of a return.

Gwalior Rayon put the justification in these terms. "The growth of the legislative power of the executive is a significant development of the twentieth century." Legislatures "because of limitation imposed upon by the time factor hardly go into matters of detail", so provision is made for delegated legislation "to obtain flexibility, elasticity, expedition and opportunity for experimentation". Mathew J. added competence: many subjects "require expertise, technical knowledge and a degree of adaptability to changing situations" a Parliament does not possess.

It is therefore not a defect to be tolerated but the ordinary machinery of government, and equally the standing strain on the separation of powers described in [The Indian Scheme].

The provisions, and four words

The parent Act, or enabling Act, confers the power. What is made under it, the rules, regulations, bye-laws, notifications and schemes, is delegated legislation: it binds, but draws its force from that Act. Excessive delegation is the vice of a parent provision that gives away too much, so the challenge is to the section of the Act. Ultra vires, Latin for "beyond the powers", is the vice of a rule going outside the parent Act, so the challenge is to the rule; that doctrine is [Ultra Vires].

The Constitution says nothing about delegation. What it says is where the legislative power sits. Article 245(1): "Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State." Article 246 divides the subject matter by the three Lists.