Delegated legislation: meaning, need, growth, merits, limitations and safeguards

1. Meaning

Delegated legislation (also called subordinate or executive legislation) is law made by a body other than the legislature, under power conferred by the legislature. The parent statute lays down the policy and the framework; the executive fills in the details through rules, regulations, orders, bye-laws, schemes and notifications.

Salmond defines subordinate legislation as that which “proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority”. The key word is dependent: delegated legislation is valid only so far as the parent Act allows.

Examples in India: rules made under the Motor Vehicles Act prescribing licence procedure; municipal bye-laws on building and sanitation; notifications fixing rates under tax statutes; regulations of bodies such as SEBI and the RBI.

2. Need for and growth of delegated legislation

The growth is a twentieth-century phenomenon, tied to the change from the police State to the welfare State (Unit I, topic 3). Reasons:

1. Pressure on parliamentary time. A legislature that meets for a few months a year cannot pass every detailed rule a modern State needs.
2. Technical subject matter. Rules on drugs, aviation, telecom or banking need experts; legislators frame the policy and leave the technical rules to specialists.
3. Flexibility. Rules can be changed quickly by notification; amending a statute takes months.
4. Emergencies. War, epidemics, natural disasters and economic crises need immediate action that cannot wait for a Bill.
5. Experimentation. A scheme can be tried in one area and extended or altered in the light of experience.
6. Local conditions. Local bodies can frame bye-laws suited to their own area.
7. Welfare functions. Social security, labour regulation, planning and licensing multiplied the number of rules required.

3. Advantages

• Saves the time of the legislature for major policy.
• Allows expert and technical knowledge to shape detailed rules.
• Permits consultation with affected interests (trade bodies, unions) before rules are framed.
• Can be adapted quickly to changing conditions.
• Makes emergency action possible.
• Allows trial and error without the formality of amending a statute.

4. Limitations and dangers

The classic attack came from Lord Hewart, Lord Chief Justice of England, in The New Despotism (1929). He argued that the civil service was using delegated powers to escape both Parliament and the courts. The British Committee on Ministers’ Powers (the Donoughmore Committee, report 1932) accepted that delegation was inevitable but recommended safeguards.

• Threat to democracy. Law is made by unelected officials rather than the people’s representatives.
• Abdication by the legislature. Parent Acts are sometimes drafted as bare skeletons, handing over policy as well as detail.
• Weak scrutiny. Thousands of rules are laid before the legislature each year; few are examined.
• Lack of publicity. Citizens may not know rules that bind them.
• Danger to liberty. Wide rule-making power can be used to restrict rights, impose penalties or tax.
• Sub-delegation. The delegate passes the power further down, multiplying the distance from the legislature.
• Exclusion of courts. Clauses saying a rule “shall have effect as if enacted in this Act” were once used to shield rules from challenge.

5. Safeguards and controls

(a) Parliamentary control

• Laying procedure. Parent Acts usually require rules to be laid before both Houses, which may modify or annul them within a set period.
• Committees on Subordinate Legislation. The Lok Sabha committee was set up in 1953 and the Rajya Sabha committee in 1964. They examine whether rules stay within the parent Act, impose taxes without authority, have retrospective effect without sanction, or are unclear.
• Debate and questions on rules in the House.

(b) Judicial control

• A rule is ultra vires and void if it goes beyond the parent Act, conflicts with the Act or with another statute, or violates the Constitution.
• The legislature cannot delegate its essential legislative function: laying down policy and principle. Delegation without guidelines is excessive and void.
• Rules that are arbitrary or unreasonable can be struck down under Article 14.

(c) Procedural control

• Publication in the Official Gazette, so that rules are known.
• Prior consultation with affected interests, or publication of draft rules inviting objections (the General Clauses Act, 1897, section 23, prescribes this where the parent Act requires previous publication).
• Consent of a specified authority before rules take effect.

(d) Other controls

Public opinion, the press, and expert bodies reviewing rule-making; the Donoughmore Committee also recommended careful drafting of parent Acts so that the limits of delegation are clear.

How this is examined

January 2026 (100 marks) Q.4: “Define ‘Delegated legislation’. What are its merits and demerits?”; January 2026 (80 marks) Q.2(a): “Define delegated legislation. Explain the reasons for the growth of delegated legislation”; February 2025 Q.2(a): advantages of delegated legislation. Write meaning with Salmond and an Indian example, then the reasons, merits, demerits (with Hewart) and safeguards under three heads.