T H E W O R L D J O U R N A L O N J U R I S T I C P O L I T Y DELEGATED LEGISLATION. S. Varun

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1 DELEGATED LEGISLATION S. Varun School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University INTRODUCTION The law 1 is not the same and there is no rule that the same law should be followed till the end. According to the changing environment, customs 2, traditions and other lifestyle of the individuals the law can be changed or the amendment 3 should be done. When the parliament 4 is too busy in making laws to affected individuals who are present in every corners of the country, it cannot take its own purview to look after all issues which is been arise in the society. Only the particular authorities know what real problem and what kind of new laws can be sought to resolve the disputes 5. Because of doing this the parliamentary time is being saved. In delegated legislation, the law making power 6 is been given to the agent and further the agent cannot delegate his power to sub-agent. The statute which delegates the power is known as enabling act. This principle is known as delegatus non potest delegare 7. It can be further delegated only when the original delegator expresses to do so or if there is an implied authority which authorizes it. When a new act is to be passed by the parliament it takes time when it is compared to delegated legislation 8. Only Members of parliament (MP s) and Member of Legislative Assembly (MLA s) are present in the parliament. Not every member in the parliament are expert in making law according to the changing circumstances. They are only the representatives of the members, because of these reasons the law making power is been delegated to the other organs of the state respectively. Since the delegated legislation is made by the unelected persons we lack democracy too. The term delegated legislation means in which the law making power is been entrusted to the other organs of the state. Delegated legislation also referred to as subordinate legislation or subsidiary legislation. In simple words, delegated legislation means law making power which is been conferred to the executive by the parliament. Generally the legislative body is responsible for making the laws, and the work of the executive is only to execute the laws. It is been permitted by the Indian Constitution. 1 The etymology of the term law is to litigate. 2 The etymology of the term customs is habitual practice. The Latin term is consuetudinem. 3 The etymology of the term amendment is betterment, improvement. 4 The etymology of the term parliament is consultation; formal conference. The Latin term is parliamentum. 5 The etymology of the term disputes is a claimant; one who makes false charges. 6 The etymology of the term power is ability to act or do. The Latin term is potis which means powerful. 7 The power which cannot be further delegated to a sub-agent. 8 The etymology of the term legislation is enacting of laws, Latin term- legislationeum. 1 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

2 Delegated legislation also describes about these orders 9, regulations 10, rules, by-laws 11 and other instruments. Statutory instruments are been made by the government ministers, bylaws are been made by the public corporations and other local authorities and the orders are been passed by the privy council. In the end of this article you would come to know about a. delegated legislation, b. merits and demerits of delegated legislation, c. Delegatus non potest delegare, d. Conclusion. Since the parliament cannot take part to make every laws which is been required by the individuals of the state, the growth of delegated legislation has been increased. When parliament takes the full control to make and amend the laws for the day to day needs of the society the growth of delegated legislation will be declined. Not all laws will be made and amended by the parliament. The laws should be passed or amended quickly to settle the disputes. If this activity is been controlled fully by the parliament the acts will not passed soon. A new act which is to be passed in the society should get the consent of both houses of the parliament and majority of votes is to be required. And all these activities are not done in a single day and the hours of the parliament will be adjourned. Under any of these circumstances the enactment of new law or amendment of the act takes a long period of time. This is one of the major reasons in which the growth of delegated legislation is on the rise. DELEGATED LEGISLATION Delegated legislation is also referred to as secondary legislation or sub- ordinate legislation or subsidiary legislation. It is a process by which the superior authority gives the power to make laws to the subordinates by primary legislation. The legislation which is been done by any statutory 12 authority or local or other body other than the legislature with competent authority is known as delegated legislation. Delegated legislation is necessary for every government to make laws without to wait for the Act of the parliament. The legislation which is been done by the state organs other than the legislature is called as delegated legislation, entrusted upon the legislature. In other words delegated legislation means the legislation made by the subordinate agency with the help of legislative power 13. The separation of powers states that the legislative powers can be exercised only by the legislature in the state. Other than the legislature no other organ of the government can control or interfere the power of legislatures to make laws. The liberty 14 and freedom of the individuals cannot be protected in a free democracy The etymology of the term order is give order to, to arrange in order. 10 The etymology of the term regulation is rule for management. 11 A regulation made by a local authority. 12 The etymology of the term statutory is pertaining to statutes, depending on statute for authority. 13 The etymology of the term power is ability to act or do. 14 According to Article 21 of Indian constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. 15 The etymology of the term democracy is the man must take the responsibility for choosing his rulers and representatives, and for the maintenance of his own rights against the possible and probable encroachments of the government which he has sanctioned to act for him in public matters. 2 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

3 Queen v. Burah Under the provisions of the Act which is called the Garro hills Act was been removed from the jurisdiction of civil and criminal courts. The governor was empowered to extend all provisions of the Act applicable to Khasi, Jaintia and Naga hills in the Garro hills. The governor extended all the provisions of the Act to the district of Khasi and Jaintia hills. He issued a notification to that effect. Appellants were convicted of murder and sentenced to death, challenged the notification. They contended that the power delegated under the section 9 is not permissible and ultra vires the powers of the Indian legislature. The high court of Calcutta upheld the contention of the appellants. The court further held that Indian legislature was a delegate of the Imperial parliament. Hence, the further delegation by the Indian legislature was permissible and ultra vires. MERITS OF DELEGATED LEGISLATION a. Mitigates Time- There are many activities in which the government should be concerned about. If every law making authority has been taken by the parliament, it takes a lots time. In such cases parliament delegates the law making power to the executive. This is because of the lack of time or the capacity in making laws for regulation. b. Flexibility- Every administration has been created by statutes. Each and every administration has its own legislation and it is adaptable to various circumstances. Only the administration 16 knows the day to day happenings and the new regulation will be made according to it. c. Emergency Actions- Every administration with required discretion should be better in dealing with the possible contingencies. If an emergency law is to be created suddenly in the administration the concept of delegated legislation arises. d. Close Contact with Science and Technology- The development of science and technology has resulted in various functions in the modern state. Due to rapid development of science and technology the legislature cannot be the same. It should be transformed from the legislature to the executive 17. e. Administrative Legislation- The legislation which is been drafted by the administration should be useful and familiar with their own departments. Only when there is proper legislation the workers may work better compared to the lay members comprising the legislature. DEMERITS OF DELEGATED LEGISLATION 16 The etymology of the term administration is an act of giving or dispensing. The Latin term is administrationem. 17 The etymology of the term executive is performed, carried out. The Latin term is executivus. 3 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

4 a. Conflict of Sub-Delegation- When the legislative body is not responsible and if it doesn t deal with the creation of legislation, the problem of sub-delegation arises. It means that the law making power goes to the other bodies than the legislature. Finally it results with a conflict 18 that the other parties should not be accountable to the creation of legislation. It can be accountable only when the legislative body authorizes to do so. b. Lack of Publicity- It is not been known by the public, and there is lack of publicity. The secondary legislation should also be noticeable. Every legislation which is been made by the administration should be known to the other members. c. Dependence on the Legislators- The courts are unable to review such delegation. The administration should depend on the person who has created such legislation. It becomes a problem as the court cannot review such legislation. d. Power of High Courts- The term delegated legislation can be influenced by the high courts, when compared to primary legislation. The legislation which is been made by the persons are not elected directly, and this kind of legislation can be quashed 19. This reduces the time of the parliament as the government 20 will have a legislative program that should keep the parliament busy. e. Un-democratic- As a result, legislation is undemocratic 21 as most of the rules and regulations 22 are been made by the unelected people and civil servants. The local authority bylaws have been laid by the elected councillors. DELEGATUS NON-POTEST DELEGARE The legal maxim Delegatus non-potest delagare is that an agent to whom the powers of an authority is been delegated on his own cannot be further delegated to a third person. This maxim is been based upon the principle that the agency is based upon trust and confidence between the persons. The authorized person believes only the agent but not the sub-agent appointed by the agent. It is one of the important principles of administrative law 23. The general principal is that the agent cannot delegate his authority to his sub-agent. But there are two exceptions under this rule. They are, a. When an ordinary custom of trade permits employment of sub-agent, or 18 The etymology of the term conflict is armed encounter, battle. The Latin term is conflictus. 19 The etymology of the term quash is to make void, annul. The Latin term is quassare. 20 The etymology of the term government is act of governing or ruling. 21 Not relating to democratic principles 22 The etymology of the term regulation is act of regulating; state of being reduced to order. 23 According to Ivor Jennings, Administrative law is the law regulating to the administration. It determines the organization, powers and duties of the administrative authorities. 4 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

5 b. When the nature of agency demands that employment of an agent is necessary. Section 190 of Indian Contract Act, When an agent cannot delegate An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may or, from the nature of the agency, a sub-agent must, be employed. There are two legal positions in which the sub-agents can be appointed, a. Sub-agent appointed properly. If the appointment of the sub-agent is been done by the authority of the principal is known as sub-agent appointed properly. b. Sub-agent appointed improperly. The appointment of the sub-agent is been done without the authority of the principal 24 is known as sub-agent appointed improperly, and if it done so the principal is not bound by his acts. The principal is not liable for the acts of the sub-agent or not responsible to any transactions made by him. The Latin meaning of the term delegatus non-potest delegare means that no delegated powers can be further delegated. If the further delegation is to be done it must hold the authority of the principal. In simple words the term delegatus non-potest delegare means, a person to whom the authority or decision making is been transferred cannot further delegate to another person, unless the original delegation authorizes to do so. The statutory power must be exercised only by the body or officer in whom it has been confided unless such delegation of the power is authorized by express words or implication. 25 FUNCTIONS THAT CANNOT BE DELEGATED In independent countries according to the principle accepted, any delegation of powers should not affect the main legislative statutes. Thus the delegation of legislative policy changes the policy of parent Act, it is said to be unconstitutional. The important legislative functions which cannot be delegated are, a. Impose tax; b. Adopting future acts; c. Repeal of law; d. Act of ejecting of jurisdiction of courts and e. Providing penalties and defining offences. CONCLUSION 24 The etymology of the term principal is ruler, governor. 25 The etymology of the term implication is action of entangling. The Latin term is implicationem. 5 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

6 In the above discussed headings the meaning, merits and demerits of delegated legislation, and the concept of delegatus non-potest delegare is been discussed clearly. Finally we understand that the parliament has lots of legislative functions to be concerned about. Because of that reason the law or decision making power is been transferred to the executive body. The concept of legislation is wide and it should be understood in a broader sense. Delegated legislation is necessary for a welfare state. Every state organ cannot depend on the parliament for legislative functions. The parliament may delegate its decision making power to the execute body. The executive body cannot further sub-delegate its authority to sub-agent or a third person. Under certain conditions with the permission of the parliament the law making power can be sub-delegated. When the delegated legislation increases the misuse of power also increases. An advisory body can be made to take care of the functions of the delegated legislation. It is necessary for every state organ to delegate the law making power to the executive body. 6 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.