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Delegated Legislation

  • 12 Jan 2023
  • 5 min read

For Prelims: SC Judgement of Demonetisation, RBI Act 1934, Ordinances, Doctrine of Separation of Power

For Mains: Delegated Legislation - Significance and Criticism, Doctrine of Separation of Powers and Delegated Legislation

Why in News?

In the Supreme Court judgement on the Central Government’s decision of demonetisation, the majority ruling upheld the validity of the delegated legislation while the dissenting verdict noted that excessive delegation of power is arbitrary.

What is Delegated Legislation?

  • About:
    • Since the Parliament cannot deal with every aspect of the governance system by themselves, they delegate these functions to the authorities established by law. This delegation is noted in statutes, commonly called delegated legislations.
    • E.g. - Regulations and by-laws (law made by a local authority which applies only in its area) under legislations.
  • SC’s View on Delegated Legislation:
    • The SC in Hamdard Dawakhana v Union of India (1959) case struck down delegation of powers on the grounds that it was vague.
      • It held that the Centre’s power of specifying diseases and conditions under Drug and Magic Remedies (Objectionable Advertisements) Act 1954 is ‘uncanalised’, ‘uncontrolled’, and going beyond the permissible boundaries of valid delegation. Hence, the same was deemed unconstitutional.
    • The Supreme Court in a 1973 ruling held that the concept of delegated legislation has evolved out of practical necessity and pragmatic needs of a modern welfare State.
  • Delegated Legislation in Demonetisation Case:
    • As per the RBI Act, 1934 (Section 26(2)) the Central govt. is empowered to notify ceasing a particular denomination of currency as legal tender.
      • Parliament, here, has delegated the power to alter the nature of legal tender to the central govt. which the latter exercised by issuing a gazette notification (legislative basis).
    • This delegation of power to the Centre was challenged on the basis that Section 26(2) contains no policy guidelines on how the Centre can exercise its powers, thus it is arbitrary (and unconstitutional).

What is the Significance and Criticism of Delegated Legislation?

  • Significance:
    • It allows flexibility and adaptability in the law-making process. By delegating certain powers, the legislature can respond more quickly and efficiently to changing circumstances and emerging issues.
    • Delegated authorities with extra skills, experience, and knowledge (in fields like technology, environment etc. where the Parliament may not always have an expertise) are more suitable for making law.
  • Criticism:
    • It can lead to a lack of accountability/transparency in the law-making process as laws made by executive agencies/administrative bodies are not subjected to the same level of public scrutiny and debate as laws made by legislature.
    • Additionally, it can also lead to a concentration of power in the executive and administrative branches of government, which may undermine the principle of separation of powers.
      • However, certain types of delegated legislation, such as ordinances must be approved by the legislature.

Way Forward

  • Parliamentary control over delegated legislation in India is not as effective, there are no statutory provisions regarding ‘laying’ of delegated legislation.
    • It is necessary to strengthen the committees of the Parliament and a separate law providing for uniform rules for delegating powers be enacted.
  • Moreover, the citizens can ensure accountability and transparency in delegated legislation by staying informed about the laws and regulations being proposed and implemented by executive agencies and administrative bodies.
    • They can also participate in public consultations and comment periods and hold the government accountable through their elected representatives.
  • Additionally, the media can play a vital role in bringing attention to any issues with delegated legislation and providing a platform for public discourse.

Source: IE

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