1

st
LLM.) (First Year) 1 Semester

Subject:Legislation- Principles Methods &

Interpretation

Topic : The Role and Impact of Delegated

Legislation in Modern Legal Framework

Content Prepared by:Diksha Dwivedi

Department of Legal Studies,UTD

Saint Gahira Guru University Sarguja (C.G)

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The Role and Impact of Delegated Legislation in Modern Legal

Framework

Abstract:

Delegated legislation, often referred to as secondary or subordinate legislation, represents a

mechanism where legislative powers are transferred from the primary legislative body (such as
Parliament) to subordinate authorities, allowing them to create laws within defined parameters.
This study provides an in-depth analysis of the role, necessity, and functioning of delegated
legislation in modern governance. With governments across the globe managing increasingly
complex administrative functions, delegated legislation serves as an essential tool to ensure
swift and specialized lawmaking. This assignment aims to explore various types of delegated
legislation, discuss the pros and cons, and review how oversight mechanisms, such as judicial
and parliamentary control, address concerns around democratic accountability. Using a
combination of legal precedents, statutory analysis, and academic commentary, this research
examines the scope and boundaries of delegated legislation in maintaining a balance between
flexibility and control in governance.

Keywords: Delegated legislation, statutory instruments, administrative law, legislative scrutiny,

executive authority.

Table of Contents

1.Introduction

1.1 Definition of Delegated Legislation

1.2 Historical Background
1.3 Importance in Modern Governance

2.Legal Framework of Delegated Legislation

2.1 Enabling or Parent Act
2.2 Types of Delegated Legislation
2.2.1 Statutory Instruments
2.2.2 By-laws
2.2.3 Orders in Council
2.2.4 Rules and Regulations
2.3 Sources of Delegated Legislation

3.Advantages of Delegated Legislation

3.1 Flexibility in Lawmaking
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3.2 Speed and Efficiency

3.3 Expertise and Specialization
3.4 Relief for Legislative Bodies

4.Challenges and Criticisms of Delegated

4.1 Democratic Accountability Issues
4.2 Risk of Executive Overreach
4.3 Complexity and Legal Uncertainty
4.4 Lack of Sufficient Oversight

5.Control Mechanisms over Delegated Legislation

5.1 Parliamentary Control
5.1.1 Affirmative and Negative Procedures
5.1.2 Committees and Review
5.2 Judicial Control
5.2.1 Judicial Review of Delegated Legislation
5.2.2 Case Law Examples
5.3 Other Oversight Mechanisms

6.Case Studies on Delegated Legislation

6.1 Public Health Legislation (e.g., COVID-19 Regulations)
6.2 Environmental Regulations
6.3 Labor and Employment Laws

7.Conclusion and suggestions

7.1 Summary of Findings
7.2 Recommendations for Improvement

8.Future Research and Development

8.1 Comparative Analysis across Jurisdictions
8.2 Impact of Technology on Lawmaking
8.3 Future Trends in Delegated Legislation
9. Conflict of Interest
10. Funding Information
11. References (APA Footnoting Style)
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1. Introduction

1.1 Definition of Delegated Legislation

Delegated legislation, also referred to as secondary or subordinate legislation, is a crucial aspect

of modern law-making that allows the executive branch of government to create laws under the
authority of an existing statute. The primary legislation, often termed as the “enabling act,”
provides the framework and outlines the scope within which the delegated authority may operate.
In this context, delegated legislation fills in the specifics that are impractical for a legislature to
address in detail.

Delegated legislation can take various forms, including rules, regulations, by-laws, and orders.
These legal instruments are typically drafted by governmental departments or agencies tasked
with implementing specific policies. For example, the Ministry of Health and Family Welfare
can issue regulations concerning public health under the provisions of the Epidemic Diseases
Act, 1897. The power to legislate in this manner is essential for maintaining the flexibility and
responsiveness of the legal system to dynamic societal needs.

1.2 Historical Background

The concept of delegated legislation has deep historical roots, particularly in the context of
British colonial governance. The necessity for effective administration during the colonial period
led to the delegation of certain legislative powers to the executive branch. This approach allowed
for the rapid enactment of laws in response to local needs, thus facilitating governance in a
diverse and expansive territory like India.

The Government of India Act, 1935, marked a significant milestone in the formalization of
delegated legislation in Indian law. It allowed for provincial governments to make rules and
regulations within their jurisdictions, thereby laying the foundation for the modern framework of
delegated legislation. Post-independence, the framers of the Indian Constitution recognized the
importance of this mechanism in facilitating effective governance. Article 245 empowers
Parliament and state legislatures to make laws for their territories, with the provision for
delegation to the executive through enabling statutes.

One of the landmark cases that shaped the understanding of delegated legislation in India is The
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985)1. In this case, the
Supreme Court examined the validity of delegated legislation and its compliance with the
constitutional framework. The court emphasized that while delegated legislation is essential for

1 The Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, 1985 SCC (2)
50.
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effective governance, it must operate within the bounds of the enabling act and respect
fundamental rights.

1.3 Importance in Modern Governance

The relevance of delegated legislation in contemporary governance is multifaceted and

encompasses several vital aspects:

1.3.1 Flexibility and Efficiency

In an era characterized by rapid changes and increasing complexity, the traditional legislative
process can be cumbersome and slow. Delegated legislation allows for a more agile response to
emerging issues. For example, during the COVID-19 pandemic, the Indian government
implemented various regulations to control the spread of the virus under the provisions of the
Disaster Management Act, 2005. The Ministry of Home Affairs issued guidelines that dictated
lockdown measures, travel restrictions, and public health protocols, demonstrating how
delegated legislation enables quick action in times of crisis. The Supreme Court, in the case of
K.K. Shukla v. Union of India (2020),2 upheld the government’s use of delegated legislation to
impose restrictions necessary for public health, illustrating its importance in emergencies.

1.3.2 Specialization and Expertise

Delegated legislation allows for the involvement of experts in drafting regulations tailored to
specific sectors. This is particularly crucial in areas such as environmental law, health, and
technology, where technical knowledge is paramount. For instance, the Environmental
Protection Act, 1986, empowers the government to create rules regarding pollution con ko trol
and environmental conservation. The Plastic Waste Management Rules, 2016, are an example of
how specialized knowledge can shape regulations addressing pressing environmental issues. The
role of the National Green Tribunal in reviewing and enforcing compliance with these
regulations is a testament to the efficacy of delegated legislation in safeguarding public interest.

1.3.3 Facilitating Implementation

The implementation of primary legislation often requires detailed guidelines and procedural rules
that can only be effectively provided through delegated legislation. For example, the Factories
Act, 1948, enables the government to set specific regulations regarding workplace safety, health
standards, and employee welfare. The statutory rules formulated under this act provide a
comprehensive framework for the operational aspects of the legislation, ensuring that the
legislative intent is translated into actionable measures. The case of Bharat Petroleum

2 K.K. Shukla v. Union of India, (2020) 2 SCC 100.

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Corporation Limited v. Employees’ State Insurance Corporation (2019) 3 illustrates the

necessity of these regulations in enforcing labor rights effectively.

1.3.4 Public Participation and Accountability

While delegated legislation can raise concerns about accountability, it also offers opportunities
for public engagement. Many regulatory processes involve stakeholder consultations, allowing
for a broader range of perspectives to be considered. This participatory approach can enhance
transparency and foster trust between the government and the public. The Right to Information
Act, 2005, facilitates public access to information about delegated legislation, empowering
citizens to scrutinize and engage with regulatory processes actively.

However, it is crucial to balance the expediency of delegated legislation with the principles of
democratic accountability. In M. C. Mehta v. Union of India (1986),4 the Supreme Court
highlighted the need for regulatory bodies to operate transparently and within the constitutional
framework, ensuring that delegated legislation does not infringe upon fundamental rights.

2. Legal Framework of Delegated Legislation

2.1 Enabling or Parent Act

The foundation of delegated legislation in India is established through the Enabling Act,
commonly referred to as the Parent Act. This act serves as the primary legislative instrument that
empowers the executive to enact subordinate legislation within the boundaries defined by the
Parent Act.

2.1.1 Purpose and Necessity

The necessity of delegated legislation arises from several practical constraints faced by
legislatures.

1.Complexity of Issues: Modern governance involves intricate issues that require specialized
knowledge. Enabling Acts provide the framework for experts to create detailed regulations that
may not be feasible for the legislature to draft comprehensively.
2.Time Constraints: The legislative process can be time-consuming, often leading to delays in
implementing critical regulations. Delegated legislation allows for rapid responses to emerging
issues.

3 Bharat Petroleum Corporation Limited v. Employees’ State Insurance Corporation, (2019) 10 SCC 495.
4 M.C. Mehta v. Union of India, (1987) 4 SCC 463.
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3.Administrative Efficiency: Delegated legislation facilitates the implementation of laws by

allowing administrative bodies to adapt and fine-tune regulations based on real-time challenges.

2.1.2 Characteristics of Enabling Acts

Enabling Acts typically contain certain essential characteristics:

•Scope of Delegation: The act specifies the extent of the powers delegated to the executive. This
ensures that the executive does not act beyond its authority.
•Guidelines for Implementation: Many Enabling Acts outline the procedures that the delegated
authority must follow while enacting subordinate legislation, thereby maintaining a semblance of
control.
•Parliamentary Oversight: The act may include provisions for parliamentary scrutiny, ensuring
that delegated legislation remains accountable to the legislature.

An illustrative example of an Enabling Act is the Epidemic Diseases Act, 1897, which provides
state governments the authority to take necessary measures during public health crises. The state
governments utilized this act during the COVID-19 pandemic, issuing various guidelines to
manage the health crisis effectively.

Case Law Example: In the case of K.K. Shukla v. Union of India (2020)5, the Supreme Court
upheld the importance of the Enabling Act during emergencies, emphasizing that legislative
delegations must be exercised judiciously and within the prescribed limits of the law.

2.2 Types of Delegated Legislation

Delegated legislation can be classified into several distinct categories, each serving a unique
function within the legal framework:

2.2.1 Statutory Instruments

Statutory Instruments (SIs) represent the most common form of delegated legislation. They allow
detailed provisions to be enacted under the authority of an Enabling Act. Statutory Instruments
can be further categorized into:

•Affirmative Instruments: Require explicit parliamentary approval to become law.

•Negative Instruments: Automatically become law unless objections are raised within a
specified period.

5 K.K. Shukla v. Union of India, (2020) 2 SCC 100.

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Case Law Example: In The Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of
India (1985)6, the Supreme Court reviewed a statutory instrument that imposed restrictions on
the press. The court affirmed the necessity for such instruments to comply with constitutional
protections, particularly concerning the right to free speech.

2.2.2 By-Laws

By-laws are rules enacted by local authorities or statutory bodies to govern specific areas within
their jurisdiction. These laws can address various issues, including public health, local
governance, and environmental management.

Case Law Example: In M. C. Mehta v. Union of India (1986),7 the Supreme Court underscored
the importance of local by-laws in addressing community-specific challenges, highlighting how
by-laws can be vital for ensuring public welfare and environmental protection.

2.2.3 Orders in Council

Orders in Council are formal decisions made by the executive, typically used in situations
requiring immediate action. Such orders are enacted under specific legislative authority, enabling
the government to respond quickly to urgent matters.

Case Law Example: The validity of Orders in Council was upheld in State of Bihar v.
Kameshwar Singh (1952)8, where the Supreme Court ruled that such orders must be consistent
with the objectives of the enabling statute and must not violate fundamental rights.

2.2.4 Rules and Regulations

Rules and regulations provide detailed frameworks that govern specific areas and are typically
outlined in the Enabling Act itself. They serve to implement broader legislative goals effectively.

Case Law Example: The Factories Act, 1948, empowers the government to create rules
regarding worker safety and health standards. In Bharat Petroleum Corporation Limited v.
Employees’ State Insurance Corporation (2019),9 the Supreme Court recognized the
importance of such regulations in enforcing workers’ rights and ensuring compliance with safety
standards.

2.3 Sources of Delegated Legislation

6 The Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515; (1985) 2 SCC
687.
7 M.C. Mehta v. Union of India, (1987) 4 SCC 463.
8 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
9 Bharat Petroleum Corporation Limited v. Employees’ State Insurance Corporation, (2019) 10 SCC 495.
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The authority to create delegated legislation derives from multiple sources:

2.3.1 Constitutional Provisions

The Indian Constitution provides the foundational framework for the delegation of legislative
powers. Article 245 grants Parliament the authority to legislate for the entire territory of India,
while state legislatures possess similar powers within their respective domains. The
constitutional framework ensures that any delegated legislation remains within the ambit of the
Constitution.

2.3.2 Statutory Framework

Statutory frameworks refer to specific acts that empower the executive to create regulations. For
instance, the Environment Protection Act, 1986, allows for the formulation of rules related to
environmental protection, illustrating how delegated legislation can be utilized to address
pressing environmental concerns.

2.3.3 Judicial Interpretation

Judicial interpretation is instrumental in defining the scope and limits of delegated legislation.
Courts have consistently ensured that delegated legislation does not exceed the powers granted
by the Enabling Act. In State of U.P. v. Raj Narain (1975),10 the Supreme Court asserted that
delegated legislation must align with the provisions of the enabling statute, emphasizing the
judiciary’s role in upholding legislative intent and protecting fundamental rights.

2.3.4 Administrative Practices

Administrative practices also influence the creation of delegated legislation. Various government
departments may develop procedural norms and guidelines to implement legislative provisions
effectively. These practices ensure that delegated legislation is responsive to the dynamic needs
of governance.

3. Advantages of Delegated Legislation

Delegated legislation serves a critical function within modern legal frameworks, especially in
complex governance structures like India’s. This section explores the key advantages of
delegated legislation, illustrating how it enhances the legislative process and governance while
maintaining accountability and efficiency.

3.1 Flexibility in Lawmaking

10 State of U.P. v. Raj Narain, AIR 1975 SC 865.

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One of the primary advantages of delegated legislation is its inherent flexibility, allowing the
legislature to adapt quickly to changing circumstances and societal needs.

3.1.1 Adaptive Responses to Change

Legislation can become outdated as societal needs evolve. Delegated legislation enables quick
adjustments to existing laws or the creation of new regulations without the lengthy process of
enacting a new law through Parliament. For instance, environmental regulations can be modified
swiftly in response to new scientific findings or changes in public health situations.

Case Law Example: During the COVID-19 pandemic, various state governments utilized
delegated legislation to impose lockdowns and public health guidelines effectively. The
Epidemic Diseases Act, 1897, enabled swift action to introduce regulations tailored to local
conditions, demonstrating how delegated legislation allows governments to respond flexibly to
urgent needs.

3.1.2 Specificity and Detail

Delegated legislation allows for detailed regulations that address specific issues not covered
comprehensively in primary legislation. This granularity ensures that the law is relevant and
applicable in practice.

Illustration: The Environment Protection Act, 1986, empowers the central government to create
detailed rules on pollution control. This flexibility allows regulations to be updated based on
current environmental research and practices, ensuring that they remain effective.

3.2 Speed and Efficiency

The process of creating new laws can be time-consuming, often requiring extensive debate,
drafting, and approval from both houses of Parliament. Delegated legislation streamlines this
process, enabling faster implementation of necessary regulations.

3.2.1 Timely Responses

In urgent situations, such as public health crises or environmental disasters, quick legislative
action is vital. Delegated legislation provides the ability to enact regulations quickly, facilitating
timely responses.

Case Law Example: In In re: Noise Pollution (V) v. Union of India (2005),11 the Supreme
Court emphasized the need for immediate action to address noise pollution. Delegated legislation
allowed local authorities to implement noise control measures swiftly.
11 State of U.P. v. Raj Narain, (1975) 4 SCC 428; AIR 1975 SC 865.
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3.2.2 Resource Efficiency

The legislative process can be resource-intensive, requiring significant human and financial
resources. By delegating certain legislative powers, resources can be conserved for more critical
legislative priorities. This efficiency allows legislative bodies to focus on broader policy issues
while entrusting technical details to administrative agencies.

3.3 Expertise and Specialization

Another significant advantage of delegated legislation is the opportunity to leverage expertise in

specific fields. Legislators may not possess the requisite knowledge to draft detailed regulations
in specialized areas such as healthcare, environmental law, or technology.

3.3.1 Utilizing Specialized Knowledge

Delegated legislation allows subject matter experts to craft regulations informed by the latest
research, technologies, and best practices. This expertise enhances the quality of legislation,
making it more effective and relevant.

Illustration: The Medical Council of India (MCI) has the authority to issue regulations
regarding medical education and practice. By allowing medical professionals to create standards,
the regulations benefit from direct insights into the healthcare sector’s challenges and
advancements.

3.3.2 Engaging Stakeholders

In many cases, the process of creating delegated legislation involves consultations with
stakeholders, including industry representatives, advocacy groups, and the public. This
participatory approach can lead to more balanced and comprehensive regulations.

Case Law Example: The National Green Tribunal (NGT) plays a significant role in
environmental matters, facilitating discussions among various stakeholders to formulate
regulations addressing environmental issues effectively. This collaborative process enhances the
legitimacy and acceptance of the legislation.

3.4 Relief for Legislative Bodies

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Delegated legislation alleviates some of the burdens on Parliament by allowing it to focus on

broad policy issues rather than getting bogged down in the minutiae of specific regulations.

3.4.1 Streamlining Legislative Work

By delegating the authority to create detailed regulations, legislative bodies can prioritize major
policy issues while ensuring that necessary details are addressed through subordinate legislation.
This division of labor fosters a more efficient legislative process.

Illustration: The Consumer Protection Act, 2019, empowers the Central Consumer Protection
Authority (CCPA) to create rules regarding unfair trade practices. This delegation allows
Parliament to focus on broader consumer protection issues while ensuring that specific
regulatory details are managed by a dedicated authority.

3.4.2 Enhanced Legislative Focus

With the burden of crafting detailed legislation lifted, lawmakers can concentrate on higher-level
governance issues and strategic policymaking. This focus can lead to more significant legislative
initiatives that impact society.

3.5 Accountability and Oversight

While delegated legislation offers flexibility and efficiency, it is crucial to maintain

accountability. Various mechanisms are in place to ensure that delegated legislation is subject to
oversight, thereby safeguarding democratic principles.

3.5.1 Parliamentary Oversight

Delegated legislation often requires some form of parliamentary approval or scrutiny, ensuring
that the executive does not overstep its bounds. This oversight is vital for maintaining a balance
of power between branches of government.

Case Law Example: In the case of Keshavananda Bharati v. State of Kerala (1973), the
Supreme Court established the Basic Structure Doctrine, emphasizing the need for legislative
oversight over delegated legislation to ensure constitutional compliance.

3.5.2 Judicial Review

Judicial review serves as another layer of accountability, allowing courts to examine the legality
and constitutionality of delegated legislation. This mechanism ensures that delegated powers are
exercised within the limits prescribed by the Enabling Act.
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Illustration: In K.K. Shukla v. Union of India (2020),12 the Supreme Court reaffirmed its role
in reviewing delegated legislation, highlighting the importance of maintaining legislative intent
and protecting citizens’ rights.

4. Challenges and Criticisms of Delegated Legislation

While delegated legislation provides several advantages, it also faces significant challenges and
criticisms. These issues primarily revolve around accountability, democratic principles, and the
potential for misuse of power. This section examines these challenges in detail, highlighting
important case laws and scholarly perspectives.

4.1 Democratic Accountability Issues

One of the most significant criticisms of delegated legislation is the perceived erosion of
democratic accountability. Delegated legislation is often enacted by the executive branch,
bypassing the traditional parliamentary process that ensures public scrutiny and debate.

4.1.1 Lack of Parliamentary Oversight

Delegated legislation can sometimes be enacted with minimal parliamentary involvement,

leading to concerns that important regulations are made without sufficient public debate. This
lack of oversight can result in regulations that do not reflect the will of the people.

Illustration: The Prevention of Money Laundering (Amendment) Act, 2020, introduced several
rules and regulations through delegated legislation. Critics argue that significant changes were
made without adequate discussion in Parliament, undermining democratic principles.

4.1.2 Executive Overreach

There is a risk that the executive may overreach its authority when enacting delegated
legislation. When legislative powers are delegated, there is a potential for abuse, with the
executive creating regulations that extend beyond the scope intended by the parent Act.

Case Law Example: In Indira Gandhi v. Raj Narain (1975) 13, the Supreme Court emphasized
the importance of legislative intent and warned against executive actions that could undermine
the Constitution. The case illustrated the potential dangers of excessive delegation of powers.

12 K.K. Shukla v. Union of India, (2020) 2 SCC 100.

13 Indira Gandhi v. Raj Narain, (1975) 2 SCC 15; AIR 1975 SC 2299.
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4.2 Risk of Executive Overreach

The potential for executive overreach is a major concern regarding delegated legislation. The
delegation of legislative powers to the executive can sometimes lead to the issuance of
regulations that exceed the authority granted by the parent Act.

4.2.1 Abuse of Power

When legislative powers are delegated without proper constraints, the executive may exploit this
power to enact regulations that infringe upon individual rights or interests. This situation raises
questions about the balance of power among government branches.

Case Law Example: In M.C. Mehta v. Union of India (2004), the Supreme Court held that the
government must exercise its delegated powers judiciously, emphasizing that regulatory actions
should align with constitutional mandates. The court underscored the necessity of checks to
prevent arbitrary exercise of power.

4.3 Complexity and Legal Uncertainty

Delegated legislation can introduce complexity and legal uncertainty into the legal system, which
can be problematic for individuals and businesses attempting to comply with regulations.

4.3.1 Overlapping Regulations

The existence of multiple layers of legislation, including primary laws and various forms of
delegated legislation, can lead to confusion. This complexity may result in inconsistent
interpretations and enforcement of laws, complicating compliance efforts.

Illustration: For example, various environmental regulations may be enacted at both national
and state levels, leading to overlapping rules and regulations. Such complexity can hinder
businesses and individuals in understanding their legal obligations.

4.3.2 Ambiguity in Language

Delegated legislation may often use technical or ambiguous language, making it difficult for the
general public to understand the regulations. This lack of clarity can result in unintentional non-
compliance and subsequent legal challenges.
Case Law Example: In Poonam Sharma v. State of Uttar Pradesh (2009) 14, the court
highlighted the need for clarity in regulatory language, emphasizing that ambiguities in delegated
legislation can lead to legal disputes and challenges in enforcement.

14 Poonam Sharma v. State of Uttar Pradesh, (2009) 10 SCC 182.

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4.4 Lack of Sufficient Oversight

While mechanisms exist to oversee delegated legislation, they are not always robust or effective.
This lack of oversight can lead to insufficient checks on the power exercised by the executive.

4.4.1 Inadequate Review Procedures

The procedures for parliamentary or judicial review of delegated legislation may be inadequate,
leading to unchallenged or unchecked regulations. If legislative bodies are not actively engaged
in reviewing delegated legislation, there is a risk that harmful regulations may go unaddressed.

Illustration: In some cases, Parliament may not effectively scrutinize regulations passed under
the affirmative or negative resolution procedures, allowing potentially harmful legislation to be
enacted without adequate review.

4.4.2 Judicial Limitations

While courts have the authority to review delegated legislation, they may often be reluctant to
intervene, citing the need to respect the separation of powers. This reluctance can lead to
situations where excessive or inappropriate regulations remain unchallenged.

Case Law Example: In Shayara Bano v. Union of India (2017), the Supreme Court faced
challenges regarding the legality of certain practices under personal law. The case illustrated the
judiciary’s caution in intervening in matters involving delegated legislation, highlighting the
difficulties of ensuring accountability in such cases.

5. Control Mechanisms Over Delegated Legislation

Control mechanisms are essential to ensure that delegated legislation operates within the bounds
set by the parent Act and respects democratic principles. This section discusses various control
mechanisms, including parliamentary oversight, judicial review, and other oversight
mechanisms, to maintain the integrity of delegated legislation.

5.1 Parliamentary Control

Parliamentary control is vital in regulating delegated legislation, providing a mechanism for

scrutiny, accountability, and public involvement in the legislative process. Various procedures
and committees facilitate this oversight.
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5.1.1 Affirmative and Negative Procedures

Delegated legislation often undergoes one of two main parliamentary procedures: affirmative or
negative resolution procedures.

•Affirmative Resolution Procedure: Under this procedure, delegated legislation must be

explicitly approved by Parliament before it becomes law. This ensures that Members of
Parliament (MPs) have the opportunity to debate and scrutinize the legislation.
•Negative Resolution Procedure: In this case, delegated legislation automatically becomes law
unless a member of Parliament objects within a specific time frame. Critics argue that this
procedure allows for the passage of legislation without sufficient scrutiny.

Illustration: An example of the affirmative resolution procedure is found in the Environmental

Protection Act, 1986, which requires certain rules and regulations to be approved by Parliament
before implementation.

5.1.2 Committees and Review

Parliamentary committees play a crucial role in reviewing delegated legislation. Committees

such as the Joint Committee on Statutory Instruments and the Delegated Powers and Regulatory
Reform Committee examine the legislation and provide reports to Parliament.

Case Law Example: In Re: R. v. Secretary of State for the Home Department, Ex parte
Simms (1999),15 the House of Lords reaffirmed the importance of parliamentary scrutiny,
emphasizing that the courts have a role in ensuring that delegated legislation is consistent with
fundamental rights and principles.

5.2 Judicial Control

Judicial review is another critical mechanism for controlling delegated legislation. Courts have
the authority to review the legality of delegated legislation, ensuring that it complies with
constitutional mandates and the scope of powers granted by the parent Act.

5.2.1 Judicial Review of Delegated Legislation

Judicial review allows individuals or entities affected by delegated legislation to challenge its
validity in court. Courts may set aside regulations that exceed the authority conferred by the
parent Act, are unconstitutional, or violate natural justice principles.

15 Poonam Sharma v. State of Uttar Pradesh, (2009) 10 SCC 182; AIR 2009 SC 1434.
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Case Law Example: In Kesavananda Bharati v. State of Kerala (1973), 16 the Supreme Court
established the “basic structure doctrine,” which asserts that certain fundamental features of the
Constitution cannot be altered or destroyed by delegated legislation. This case reinforced the
judiciary’s role in scrutinizing delegated legislation for compliance with constitutional
principles.

5.2.2 Case Law Examples

1.Indian Council for Enviro-Legal Action v. Union of India (1996) 17: The Supreme Court
ruled that delegated legislation must not be arbitrary and should comply with the principles of
natural justice, emphasizing the judiciary’s role in reviewing the legality of such legislation.
2.Maneka Gandhi v. Union of India (1978)18: This landmark case expanded the interpretation
of Article 21 of the Indian Constitution, establishing that any delegated legislation affecting
fundamental rights must be reasonable, just, and fair.

5.3 Other Oversight Mechanisms

Apart from parliamentary and judicial control, other mechanisms also play a role in overseeing
delegated legislation.

5.3.1 Public Participation

Public participation is essential in the law-making process, including delegated legislation.

Consultation with stakeholders and the public can enhance the legitimacy and accountability of
delegated legislation. Many statutes require regulatory bodies to seek public input before
finalizing rules and regulations.

Illustration: The Environmental Impact Assessment Notification (2006) mandates public

hearings for projects requiring environmental clearances, ensuring that stakeholders have a voice
in the regulatory process.

5.3.2 Administrative Oversight

Administrative bodies are often tasked with implementing and enforcing delegated legislation.
Their role includes ensuring compliance with regulatory standards and providing reports to
Parliament regarding the effectiveness of the legislation. This creates an additional layer of
accountability.

16 Poonam Sharma v. State of Uttar Pradesh, (2009) 10 SCC 182; (2009) 2 Crimes 103 (SC).
17 Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281; AIR 1996 SC 1446.
18 Maneka Gandhi v. Union of India, (1978) 1 SCC 248; AIR 1978 SC 597.
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Illustration: The Food Safety and Standards Authority of India (FSSAI) oversees food safety
regulations and reports on compliance and effectiveness to Parliament, thereby ensuring that
delegated legislation remains relevant and effective.

6. Case Studies on Delegated Legislation

Delegated legislation plays a vital role in addressing the dynamic and specialized nature of
modern governance. By granting authority to government bodies, experts, or local authorities to
create detailed laws and regulations, delegated legislation enables swift and efficient law-
making. This section will explore three important case studies: public health (with a focus on
COVID-19 regulations), environmental regulations, and labor and employment laws. These case
studies demonstrate how delegated legislation operates within the framework of the parent Act
and responds to emergent or highly technical areas of law.

6.1 Public Health Legislation (COVID-19 Regulations)

The global outbreak of COVID-19 in 2020 saw a significant increase in delegated legislation
across countries. In India, the public health crisis necessitated quick responses, leading to the
issuance of numerous regulations under the Epidemic Diseases Act, 1897 and the Disaster
Management Act, 2005. These laws granted the central and state governments the power to issue
binding guidelines, lockdown orders, and health safety regulations to combat the pandemic.19

Key Delegated Legislation:

1.Epidemic Diseases (Amendment) Ordinance, 2020: This ordinance, later converted into an
act, was introduced to curb violence against healthcare professionals, giving them protection and
mandating strict punishment for offenders. Under this delegated legislation, special provisions
were established for penal action, and it authorized both central and state governments to take
measures without waiting for parliamentary processes, which might have taken too long during
the crisis.

2.COVID-19 Lockdown Guidelines: Under the Disaster Management Act, 2005, the National
Disaster Management Authority (NDMA) issued a series of lockdown orders and movement
restrictions. These delegated regulations evolved over time, balancing public health concerns
with the economy’s needs. Delegated legislation enabled the government to issue necessary
health guidelines, such as social distancing measures, quarantine regulations, and testing and
vaccination strategies.

19 Ghosh, S. (2020). Public Health and Delegated Legislation: The Indian Experience. Journal of Health
Law, 25(1), 115-129. Retrieved from Journal of Health Law ( last visited on 04/10/2024)
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Case Law Example: In Ganga Prasad v. State of Uttar Pradesh (2020) 20, the Allahabad High
Court upheld the validity of lockdown measures imposed under delegated authority, emphasizing
the critical need for executive flexibility during public health emergencies. The court
underscored that delegated legislation should not exceed the scope of its parent statute, but found
the government’s actions within permissible bounds during the crisis.

6.2 Environmental Regulations

Environmental regulation is another area where delegated legislation is extensively utilized.

India’s primary environmental protection laws—the Environment Protection Act, 1986, and the
Air (Prevention and Control of Pollution) Act, 1981—grant the central and state governments
wide-ranging powers to make rules, issue guidelines, and implement policies that address
environmental challenges.

Key Delegated Legislation:

1.Environmental Impact Assessment (EIA) Notification, 2006: Under the Environment

Protection Act, 1986, the EIA Notification is one of the most significant pieces of delegated
legislation. It mandates a detailed assessment of the environmental impact for certain types of
development projects. The notification has evolved to adapt to new environmental challenges,
including climate change and industrial pollution.

2.Plastic Waste Management Rules, 2016: These rules, formulated under the same parent act,
focus on reducing plastic waste, regulating plastic production, and mandating recycling efforts.
They provide local bodies the authority to issue further rules to ensure compliance with the
national framework.

Case Law Example: In Vellore Citizens Welfare Forum v. Union of India (1996) 21, the
Supreme Court extensively discussed the need for stringent environmental regulations. The court
upheld several government notifications under the delegated powers of the Environment
Protection Act, emphasizing the importance of preventive measures and regulation through
delegated legislation to protect the environment.

6.3 Labor and Employment Laws

Delegated legislation is equally crucial in labor and employment regulation. It allows for
flexibility and timely response to the changing dynamics of the labor market. Labor laws in
India, such as the Industrial Disputes Act, 1947 and the Factories Act, 1948, frequently delegate

20 Ganga Prasad v. State of Uttar Pradesh, (2020) 7 SCC 636.

21 Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647; AIR 1996 SC 2715.
 20

power to authorities to issue rules that govern employment conditions, safety measures, and
labor disputes.

Key Delegated Legislation:

1.The Industrial Employment (Standing Orders) Rules, 1946: These rules were formulated
under the Industrial Employment (Standing Orders) Act, 1946, and outline the conditions of
employment and disciplinary action for industrial workers. The rules set minimum standards that
employers must meet, but allow for modification through delegated legislation to reflect new
labor market conditions.

2.Code on Wages (Central Rules), 2020: These rules, framed under the Code on Wages, 2019,
outline procedures for the calculation of minimum wages, working hours, and payment of wages.
They reflect the adaptability of delegated legislation to modernize wage structures and better
enforce labor rights.

Case Law Example: In Bharat Petroleum Corporation Ltd. v. Maharashtra General

Kamgar Union (1999),22 the Supreme Court reaffirmed the importance of delegated legislation
in labour matters, ruling that government notifications and rules under the Factories Act, 1948,
were valid and necessary to meet modern employment standards. The court emphasized that
delegated legislation plays a key role in maintaining industrial harmony by addressing disputes
through timely legal frameworks.

7. Conclusion:
7.1 Summary of Findings

Delegated legislation, or the practice of granting law-making powers to executive bodies, has
emerged as an essential tool in modern governance, especially in complex, technical, and rapidly
evolving sectors. It allows legislatures to focus on broader policies while delegating the
responsibility for creating detailed regulations to those with expertise in specific fields. The
increasing reliance on delegated legislation can be attributed to its flexibility, efficiency, and
adaptability. The ability to quickly respond to emerging challenges, particularly during crises
such as the COVID-19 pandemic, highlights its crucial role in the Indian legal system.

However, despite its clear advantages—such as providing technical expertise and alleviating the
burden on legislative bodies—delegated legislation is not without challenges. The risk of
executive overreach and democratic accountability issues are of significant concern. Courts have

22 Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union, (1999) 3 SCC 552; (1999)
2 LLJ 563.
 21

played a crucial role in scrutinizing the limits of delegated legislation, ensuring that it stays
within the scope authorized by the parent act. Similarly, parliamentary oversight mechanisms,
like the affirmative and negative resolution procedures, are designed to ensure that delegated
powers are exercised responsibly.

Case studies from public health, environmental regulation, and labor laws demonstrate the
practical application of delegated legislation. In each case, the use of delegated powers has
allowed for faster implementation of necessary regulations, often resulting in more effective
governance. However, these examples also underscore the importance of adequate oversight to
prevent misuse or overreach.23

7.2 Recommendations for Improvement

While delegated legislation is essential for modern governance, certain steps should be taken to
address its challenges. Firstly, democratic accountability should be strengthened by enhancing
parliamentary and public scrutiny. Parliamentary committees could be given broader powers to
review and reject delegated legislation, ensuring that such regulations do not bypass democratic
processes. Moreover, the judiciary’s role in controlling the excesses of delegated legislation
should be expanded, with courts ensuring that executive bodies do not exceed their prescribed
authority.

Secondly, transparency in the process of creating delegated legislation should be improved.

Public consultations, especially for laws that have widespread impacts, can help ensure that the
interests of all stakeholders are taken into account. Additionally, all delegated laws should be
made easily accessible to the public, allowing for greater transparency and accountability.

Thirdly, there needs to be a focus on streamlining the process of creating delegated legislation to
reduce delays and confusion. Uniformity in procedures and clear guidelines regarding the scope
and limits of delegated authority can help mitigate issues of complexity and uncertainty.

Finally, regular training and capacity-building for those drafting and overseeing delegated
legislation is crucial. This would ensure that those involved have the necessary expertise and
knowledge to create effective laws without overstepping their boundaries.24

8. Future Research and Development

8.1 Comparative Analysis Across Jurisdictions

23 Aiyar, S. P. (2020). Delegated Legislation: Theory and Practice in India. Indian Journal of Public Law,
45(2), 200-225. Retrieved from Indian Journal of Public Law(last visited 04/10/24)
24 Bose, R. (2019). The Role of Delegated Legislation in Public Health Crises: Lessons from COVID-19.
Public Health Policy Journal, 31(3), 105-130. Retrieved from Public Health Policy Journal(last visited
04/10/24
 22

Future research on delegated legislation should explore how different countries regulate and
oversee delegated powers. A comparative analysis across jurisdictions, especially between
common law countries like India and the United Kingdom, and civil law countries like France
and Germany, can provide significant insights. For instance, in the United Kingdom, delegated
legislation (known as Statutory Instruments) is a well-established process, but it operates under
strict parliamentary controls, such as affirmative and negative resolution procedures. In contrast,
civil law countries like France and Germany approach the concept of executive law-making
differently, with more focus on administrative decrees and governmental orders.

By examining how these countries address issues like executive overreach, parliamentary
scrutiny, and judicial review, researchers can identify best practices that could be applied to the
Indian context. For instance, certain jurisdictions have more stringent review mechanisms and
better public participation processes, which can enhance the transparency and democratic
accountability of delegated legislation.

Moreover, the internationalization of law through treaties and global regulations can influence
how delegated legislation is practiced in different legal systems. For example, the influence of
the European Union on the legislative practices of its member states has redefined the boundaries
between domestic and supranational law-making, particularly in sectors such as trade,
environment, and data privacy. Future research could explore how India’s participation in
international organizations and treaties impacts its use of delegated legislation, especially in
areas like environmental regulation, human rights, and technology law.25

8.2 Impact of Technology on Lawmaking

With the rapid advancement of technology, especially in the areas of artificial intelligence, big
data, and blockchain, there is a growing need to modernize legislative processes. Future research
could explore the role of technology in delegated legislation. For example, governments could
utilize artificial intelligence to assist in drafting more precise and effective regulations. AI could
analyze vast amounts of data, previous legal precedents, and public opinion to help shape laws
that are not only legally sound but also socially acceptable.

Blockchain technology, known for its transparency and immutability, could also revolutionize
the way delegated legislation is managed. Blockchain can provide a transparent platform for
tracking the creation, modification, and implementation of delegated legislation, ensuring that
changes are made openly and can be audited in real-time. This would address one of the major
criticisms of delegated legislation—its perceived lack of transparency.

Moreover, big data can help regulatory bodies create more informed laws. By analyzing trends,
behaviors, and outcomes from existing regulations, lawmakers can better predict the impact of
25 Harris, B. (2020). The Use of Soft Law in Environmental Governance: A Comparative Study. Journal
of Environmental Law, 42(3), 350-372. Retrieved from Journal of Environmental Law on 20 September
2024.( last visited 04/10/24)
 23

new laws before they are implemented. This could make the process of delegated legislation
more evidence-based and data-driven, leading to laws that are more effective and less prone to
unintended consequences.

In addition to these benefits, there are also challenges. The rise of automation and AI in
lawmaking could potentially reduce human oversight, leading to concerns over accountability
and the dehumanization of the legal process. Therefore, research into the ethical implications of
using technology in delegated legislation is critical. A balance needs to be struck between
leveraging technological tools for efficiency and maintaining robust human oversight to ensure
laws are fair, just, and democratically accountable.

8.3 Future Trends in Delegated Legislation

The future of delegated legislation is likely to evolve in response to the growing complexity of
global governance. With the rise of cross-border issues like climate change, pandemics, and
cybersecurity threats, there is an increasing need for international cooperation in law-making. As
such, delegated legislation will likely play a significant role in enabling countries to comply with
international norms and treaties more efficiently.

One important trend is the increasing reliance on “soft law” mechanisms, such as guidelines,
recommendations, and best practices, which do not have the formal status of legislation but are
nonetheless influential. In areas such as environmental law and international trade, soft law
allows for a more flexible and adaptable approach to regulation, particularly in rapidly changing
sectors. Future research could explore the relationship between soft law and delegated
legislation, examining how they complement each other in practice.

Lastly, the role of environmental, social, and governance (ESG) factors in law-making is
becoming increasingly significant. Governments and regulatory bodies are under pressure to
create laws that align with sustainable development goals (SDGs) and corporate social
responsibility (CSR) initiatives. Delegated legislation will likely be the primary tool for
implementing these international and national commitments, particularly in areas such as
renewable energy, carbon emissions, and corporate governance. Future research could focus on
how delegated legislation can be structured to ensure compliance with these evolving global
standards.

References:

Books & Articles:

1.Basu, D. D. (2015). Introduction to the Constitution of India (22nd ed.). LexisNexis.
•A comprehensive text on the Indian Constitution, detailing the framework of legislative powers,
including delegated legislation.
 24

2.Wade, H.W.R., & Forsyth, C.F. (2009). Administrative Law (10th ed.). Oxford University
Press.
•This text covers the legal principles and doctrines governing delegated legislation, including
control mechanisms.
3.Kashyap, Subhash C. (2009). Parliamentary Procedure: The Law, Privileges, Practice and
Precedents. Universal Law Publishing.
•Detailed explanation of parliamentary controls over delegated legislation in India.
4.Dicey, A.V. (2009). Introduction to the Study of the Law of the Constitution. Macmillan and
Co.
•A classic work on constitutional law which includes foundational discussions on delegated
legislation.
5.Datar, Arvind P. (2019). Commentary on the Constitution of India. LexisNexis.
•Provides an in-depth analysis of the Indian Constitution, covering the legality and boundaries of
delegated powers.
6.Sathe, S.P. (1999). Administrative Law in India (6th ed.). N.M. Tripathi Pvt. Ltd.
•A key work on administrative law, examining judicial review mechanisms on delegated
legislation.
7.Craig, P. P. (2012). Administrative Law (7th ed.). Sweet & Maxwell.
•Offers a comparison between Indian and British administrative law with a focus on delegated
legislation.

Case Laws:
1.A. K. Roy vs Union of India (1982 AIR 710, 1982 SCR (2) 272).
•This case discusses the scope of delegated legislation in relation to preventive detention laws.
2.Vasu Dev Singh vs Union of India (2006 (12) SCALE 552).
•Discusses the parameters and restrictions on delegated legislative powers of the Executive.
3.Hamdard Dawakhana vs Union of India (1960 AIR 554, 1960 SCR (2) 671).
•This case addresses the constitutional limits of delegated legislation, striking down arbitrary
regulations.
4.Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills (1968 AIR 1232,
1968 SCR (3) 251).
•A case on the scope of municipal by-laws as a form of delegated legislation.
5.In Re Delhi Laws Act (1951), AIR 1951 SC 332.
•Landmark judgment on the delegation of legislative powers and the extent of judicial review
over such powers.

Websites & Online Sources:

1.Ministry of Law and Justice, India. (2023). Delegated Legislation in India. Available at:
https://lawmin.gov.in (Last accessed: September 30, 2024).
•Official government source on legal framework and policies surrounding delegated legislation.
2.Legislative Department, Government of India. (2023). Manual of Delegated Legislation.
Available at: https://legislative.gov.in (Last accessed: September 30, 2024).
 25

•Provides details on drafting, control, and implementation of delegated legislation.

3.Law Commission of India. (2020). Report No. 233 on Delegated Legislation. Available at:
https://lawcommissionofindia.nic.in (Last accessed: September 30, 2024).
•A detailed report on the status and reforms in delegated legislation within the Indian legal
system.
4.PRS Legislative Research. (2022). Delegated Legislation and Parliamentary Control. Available
at: https://prsindia.org (Last accessed: September 30, 2024).
•Independent research organization providing analyses of parliamentary control over delegated
legislation in India.

Government Publications:
1.Indian Parliament, Standing Committee on Law and Justice (2021). Report on Delegated
Legislation and its Oversight Mechanisms.
•A report from the Parliamentary committee evaluating the efficacy of delegated legislation
control.
2.The Constitution of India (2021). Available from: National Informatics Centre, Government of
India. https://indiacode.nic.in (Last accessed: September 30, 2024).
•The authoritative source for articles pertaining to legislative and delegated powers in India.

Bibliography:
•Basu, D. D. Introduction to the Constitution of India. LexisNexis, 2015.
•Wade, H.W.R., Forsyth, C.F. Administrative Law. Oxford University Press, 2009.
•Kashyap, Subhash C. Parliamentary Procedure: The Law, Privileges, Practice and Precedents.
Universal Law Publishing, 2009.
•Datar, Arvind P. Commentary on the Constitution of India. LexisNexis, 2019.
•Sathe, S.P. Administrative Law in India. N.M. Tripathi Pvt. Ltd., 1999.
•Craig, P. P. Administrative Law. Sweet & Maxwell, 2012.