Delegated Legislations and its Constitutionality

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By Yartharth Raj Khurana

1)Introduction

Delegated legislation is existing in all the countries. If the Constitution is silent in some countries so, it is the responsibility of the courts to decide the case. In a government authority a welfare state a wide growth which stands as the essence of any welfare state. Some delegated powers, functions, authority requirements to introduce efficiency, maintaining orders, maintaining constitution powers in the administrative procedure.Generally delegated powers are really natural and original in form. Delegated powers handle all the works and, in any disputes, arguments have created by someone so, the delegated powers to check the validity on certain things, to maintain social and economical issues and to maintain the reconstruct this thing through the delegated powers. If we talk in India, India is a constitutional  administrative rule making and it should be subject to discussion under three different periods first period we have the privy council and then go the present high  court and then  go the supreme court. In Previous time or ancient period federal courts is known as supreme court because in previous period only federal court was existed in all over the world. But now Supreme court is the highest court of the world.Different Countries have different delegated powers to each other and delegated powers in these countries like India, Britain, USA, UK etc.

2)DefinitionofDelegatedlegislation

Delegated legislation is making of laws outside the legislature. Generally delegated powers makes so many things like rules, regulations, structure, functions, orders etc.When the authority makes practicing  power exercise given by the legislature and the legislature use or makes their owntool, it is known as delegated legislation.

Different Scholars have defined the delegated legislation in various ways

According to Salmond Delegated legislation is those legislation which the powers comes from any  authority and it depends on the supreme authority for the continues of its existence.

Delegated Legislation includes two aspects that is-

  1. The practice of an agency subordinate to the legislature that is given by the legislature.
  2. The Rules comes from the subordinate authority and the pursues power guaranteed it to by the legislature.

The meaning of these two aspects simply states that

1)The first thing is that the body that makes up the legislation is under the legislature. The legislature powers are executed by the authority that is not completely power of the legislature butthe powersare guaranteed by the legislature. The authority is executed that is not by legislature but the powers are guaranteed it by the legislature.

2)The second aspect simply states that delegated legislation means every rule, regulations, structures, functions or any law-making body is made by the legislature.

3)Reasons for growth of Delegated Legislation

A number of reasons have mentioned for growth of delegated legislation

These are the reasons have contributed to the growth of delegated legislation and that is –

1)Pressure upon parliamentary time

The legislation is all about the great amount and by the increase in the responsibilities of the state. The legislature has not enough time to see or to check every subject matter in detail. The legislature passed a plan of the legislation, carries the general policy and they give power to executive authority to fill up the details. Just because of this executive has power to make their rules, regulations, law-making body , functions, structure etc.Delegated legislation power has arisen due to the necessities of the modern state and the reform social or economical issues.

2)Technicality

The Government of delegated  legislation has become technical. When the legislation become technical the members of parliament need some consultancy or advise of the experts. When the policy statements of legislature become alone, only conveniently  and administrative agencies will have to do work and the sequence of law-making handed over them. High subject or technical matters cannot be resolved if they are politician also only experts can solve the high subject technical matter. Delegated legislation gives some power to experts to resolve the technical issues because of legislature has no source for that high matter issues. Some examples of high technical subject matter that is nuclear energy, nuclear weapon etc.

3)Flexibility

We all know that delegated legislation is a flexible government because their proper working needs some good quantity and quality of the law and may be that power is not given by the parliament. Delegation Legislation work is to legislate rule-making for the people. We all know that parliament cannot work full time just because of this executive needs to be given power in order for it to needs something fir the future event that is not expected. The delegated legislation has a power to do amendments and the parliament has also power to delay that amendments.

4)Experiments

Due to lack of  validity and lack of experiment this is also the reason of disadvantage of process of delegated legislation. The delegated legislation gives the power to executive authority to do the experiments. This method use this experience and enacting some important changes when applying the provision is the presence of the experience. The rules and regulations can be made definitely and they implemented also if the situation is not good or any changes are necessary. In certain cases, if defects are found so, the dispute or defects is to be resolved on the spot.This mode gives the power of a use of experience and the implementation of the required adjustments in the presence of the experience.

5) Emergency

The main reason is the emergency of growth Delegated legislation. Delegated legislation start the work during the situation of emergency. It includes natural disasters, flood, earthquake etc. In emergency situation delegated legislation work so hard. The delegated legislation gives the power to executive authority to take the action immediately in emergency situation. It takes quickly decisions in emergency situation.In the emergency case,the making of an administrative rule is important and required.

6)The Complexity of modern administration

The Complexity of modern administration has become undoubtable or not sure. The delegated legislation continues the responsibility and the welfare of the citizens such as health, education, employment and along with the provision of other services.The complex nature of the state and the extension of the work of the state in socio-economic areas have made this to resolve the other methods of other legislation and gives some powers to agencies in the required times. It is very important that a lot of powers given to the administrative agencies andto resolve the socio-economic policies actions is to be taken very quickly.The objective is not achieved when it has been resolved to have the traditional legislative process.

4)Constitutionality of Delegated Legislation

Constitutionality of delegated legislation has the power and the limits of the administrative rule – making body or it allows the constitution of the country within all rights given to the delegate legislation and the constitution give the power to delegate legislation that power can give to other administrative agencies also. The aim of constitutionality of delegated legislation is to solve the socio-economic defects or problems and to handle all the problems which arises by the  socially, economically and politically.

If we talk about the parliament of England so, the parliament of England is powerful and that every law are execute. It is the advantage of that parliament is that if the matters are technically and the parliament don’t have so much time to handle the difficult matters so that the parliament gives the power to delegated legislation and they solve all the high matters or difficult matters.

In this concept one thing must included that is sovereignty of parliament. Sovereignty of parliament means when the principles to which the exercising of delegation must arrange in line itself it is called the sovereignty of parliament.In the period of second world war there was great increase in delegated legislation.In 1929, when issues were raised by opposition for delegated powers and,  its growth and all the powers of the committee put on the ministers. On the other hand, 1932, the committee had studied full report and stated that the system of delegated legislation is legal and constitutionality of delegated legislation power with particular limits and it works under the safeguards.

But if we talk about the USA, in USA the delegated legislation is not allowed in the USA constitution and two reasons behind over it –

1)Separation of Powers

2)Delegates non potest delegare

1)The first reason is that separation of powers. The America is the first country where Separation of powers was adopted. According to Article 1 in the Constitution of the USA the power of delegated legislation cannot legislate because it is strictly prohibited for the congress. According to the Constitution of USA The congress cannot allowed legislative power to the president. The separation of powers was existed each and every where and it maintains the government system and integrity of the nation or integrity of the government also. Checks and balance is also included in this concept and there three independent organs are there existed that is Legislative, judiciary and executive.

2)Second Reason is that Delegates Non Potest Delegare. It means that where one party or one power has to be delegated so, it cannot be delegated again. For example, the congress get the power from the people and the people is delegated so, it cannot be delegated again through the executive, agency and cannot its delegatedlegislative power.All the working of the government has to be proved highest or vast and it was the process that all the law was enacted to the coreand it is impossible for the congress.

Case Law

Hemdard Dawakhana Vs Union of India, AIR 1960 SC 554

In this Case, the Supreme Court stated  that the Constitution has not declared the prohibited government  of delegated legislation and the legislative power by the legislature to the executive. It is a null and void matter that the executive work cannot be allowed important legislative functions by the legislature. The legislature has the power to establish legislative policy. The court said that the executive authority will be creating another legislature. The court said the delegated legislation is not prohibited it is absolutely legal power or delegated legislation power is legal power by the legislature to the executive authority.Delegated legislation is that type of legislation is  continue from another authority and that authority is not final or last power.The court also said that delegated legislation is very important and it is existing in the constitution. Various factors, Various reasons Various Growth stated  that Delegated legislation is also the part of Constitution and that power is absolute and legal. But it is very important for delegated legislation is that the basic functions of the legislation cannot be delegated to the executive by the legislature.

Conclusion

Now We have studied that the requirements of constitutional delegated legislation is to maintain efficiency, order, procedure in the administrative process. This thing is correct that it to be the doctrine of separation of powers is exist, both aim at independence of the governments organs and delegated legislation becomes unfavourable. In this method says that where there is a growing of necessity of technically, viability, experiments require introduction. Without effective Mechanism both these doctrines cannot be implemented. If there is excessive legislation is existingso the law is to be held invalid on the grounds of excessive legislation but that law is existingbut under the constitutional authority is exist to be held valid. Delegated legislation is declared valid, absolute and legal by the court. Delegated legislation is that legislation comes from any authority and it depends on the supreme authority for the continuance of its existence. Now Delegated Legislation has declared part of the constitution now and just because of this separation of powers came in the power. It maintains the government system and maintains the integrity between the government.Delegated legislation means every law, rules, regulations, functions, structure etc.But the main thing is that the power of  delegated legislation is executed by the legislature that is not the legislature authority only the use of powers are allowed by the legislature.Growth of the delegated legislation such as technicality, flexibility, complexity of modern state etc. One important aspect is that the delegate non potest delegare means one power or one authority is delegated once time but again it cannot be delegated through the any power  executive, legislature power, administrative or any agency. So, delegated legislation become valid, constitutional by the court also. One thing is also  important that basic functions of the legislature cannot be delegated to the executive by the power of legislature.

References

1)www.lawnn.com

2)www.blog.ipleaders.in

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