• UGI USER
  • Sep 27, 2023
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Q. Do you think the exercise of delegated legislation by the executive goes against the principle of separation of powers? Discuss in the context of India.

Approach:

● Briefly define delegated legislation.

● Discuss how it undermines the principle of separation of powers in India.

● State the arguments in favor of delegated legislation.

● Conclude accordingly.

 

  • Delegated legislation or subordinate legislation is the practice of the Parliament making laws in a skeleton form and authorizing the Executive to make detailed rules and regulations within the framework of the parent law.
  • Since the Indian Constitution has assigned different roles to different organs of the state, delegated legislation seems to go against the principle of ‘separation of powers’, as:
  • Delegated legislation leads to encroachment of legislative power by the Executive, as the delegated authorities tend to amend legislation in the course of their implementation. it may thus turn the Parliament into a rubber stamp legislative body.
  • It takes away the power of scrutiny from the hands of the Legislatures since delegated legislation cannot be subject to the level of Parliamentary scrutiny that a legislation passed by the Parliament goes through.
  • The extent to which delegation is permissible in India is not clear, which further blurs the boundaries between the existing Legislative and Executive powers.
  • Vague and ambiguously worded legislation confers excessive Ministerial discretion since they remain open to wide interpretations.

It is also argued that the idea of delegated legislation is well in sync with the Constitutional scheme of India, and is within the purview of the doctrine of separation of powers in the following manner:

  • No strict separation of powers: Indian Constitution provides for a system of checks and balances where each organ is supreme in its domain, but no organ is completely independent of the other organs.
  • For instance, in the Raj Narain Singh case (1975),the Supreme Court of India upheld the delegation of power given to the Executive by the Legislature and stated that separation of powers is limited in India.
  • Parliamentary control: Rules formed under delegated legislation are placed before the Parliament for examination and ultimately, the Executive is responsible to the Parliament for rule-making.
  • Limited authority: Under delegated legislation, the Executive enjoys only a limited power to decide rules/bylaws. The Executive cannot go beyond and set any rule/bye-law for which it was not authorized to do so by the Parliament in the first place.
  • Constitutional supremacy: Subordinate legislation is subject to the Constitutional principles/provisions, thus, chances of usurping powers of the other organs by the Executive gets reduced.

The tool of delegated legislation is a practical solution to the myriad of challenges facing the Legislature while framing laws in today’s modern and complex society. However, the Parliament needs to strengthen its control over delegated legislation by strengthening the functioning of the Committee on Subordinate Legislation. The Committee should scrutinize the actions of the Executive and inform the Parliament about any instance of overreach by the Executive on time.