Delegated legislation refers to rules, regulations, bye-laws, or orders drafted by executive authorities under the power granted to them by a parent Act passed by the Parliament.
1. Why Delegated Legislation is Necessary
- Pressure on Parliamentary Time: Parliament meets for limited sessions and cannot debate hundreds of minor details.
- Technicality of Subject Matter: Laws on nuclear energy, environmental pollution, tax brackets, and cyber security require specialized scientific or economic knowledge that regular politicians do not possess.
- Flexibility and Speed: Executive agencies can modify rules quickly in response to emerging economic crises or pandemics without waiting for an entire Act to pass through both Houses.
2. The Constitutionality Limit: The Essential Legislative Function Test
Can the legislature delegate its entire law-making power? Absolutely not. Doing so would violate the trust placed in them by the electorate.
In the landmark advisory opinion of In re Delhi Laws Act, 1951, the Supreme Court of India established the definitive Essential Legislative Function Test:
The legislature is permitted to delegate power, but it cannot delegate its essential legislative functions. An essential legislative function consists of declaring the legislative policy and laying down the standards or guidelines for executive action. The executive can only fill up the details to carry out that policy. The power to repeal or fundamentally modify a parent statute cannot be delegated.
3. Sub-Delegation and Administrative Directions
- Sub-Delegation: When an executive authority further delegates its delegated rule-making power to a subordinate officer. Under the Latin maxim Delegatus non potest delegare (a delegate cannot further delegate), sub-delegation is void unless explicitly authorized by the parent Act.
- Administrative Directions: Governments frequently issue administrative circulars, guidelines, and policy statements. Unlike statutory rules (drafted under a parent act), these directions generally do not have the force of law and cannot override or conflict with statutory rules.