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Delegated Legislation in India

Delegated legislation, also known as subordinate legislation, plays a crucial role in the functioning of the Indian legal system. It allows Parliament and state legislatures to delegate certain powers to executive authorities to create rules and regulations without going through the full legislative process.

Key Concepts​

Definition​

Delegated legislation refers to the power granted to government officials or bodies to create laws or regulations within the framework set by parent statutes [1].

Types of Delegated Legislation​

  1. Orders-in-Council
  2. Statutory Instruments
  3. Bye-laws
  4. Rules
  5. Regulations

Characteristics​

  • Created under the authority of parent statutes
  • Have the force of law
  • Can be challenged in court
  • Must be published and made available to the public

The Constitution of India grants the power to make delegated legislation to both the Union and State governments [2]. The main sources of this power are:

  1. Article 73 (Union List)
  2. Article 162 (State List)

Additionally, various Acts have been passed to regulate the making of delegated legislation, such as:

  • The General Clauses Act, 1897
  • The Interpretation of Statutes Act, 1884
  • The Limitation Act, 1908

Case Laws and Illustrations​

Case 1: Keshavananda Bharti v. Union of India (1973) [3]​

This landmark case established the doctrine of basic structure, limiting the power of Parliament to amend the Constitution. It also dealt with the validity of certain amendments to the Sixth Schedule of the Constitution, which related to tribal areas.

Illustration: The case involved a challenge to the Kerala Land Reforms Act, 1963, which was held to be unconstitutional due to its violation of the basic structure of the Constitution.

Legal Section: Article 368(1), Constitution of India

Case 2: Rustom Cavasjee Cooper v. Union of India (1970) [4]​

This case concerned the validity of the Banking Service Commission Ordinance, 1969, which was enacted during a national emergency.

Illustration: The Supreme Court upheld the ordinance, ruling that it was validly enacted under Article 123 of the Constitution.

Legal Section: Article 123, Constitution of India

Case 3: State of Maharashtra v. Praful B. Deshpande (1980) [5]​

This case dealt with the validity of the Maharashtra Prohibition of Smoking in Public Places Act, 1996.

Illustration: The Bombay High Court struck down the Act, holding that it exceeded the legislative competence of the State Legislature.

Legal Section: Entry 33, List II, Seventh Schedule, Constitution of India

Practical Examples​

  1. Environmental Regulations: The Ministry of Environment, Forest and Climate Change issues notifications under the Environment (Protection) Act, 1986, regulating industrial activities and pollution control measures.

  2. Tax Laws: The Central Board of Direct Taxes issues circulars and instructions under the Income-tax Act, 1961, clarifying tax provisions and providing guidance to taxpayers.

  3. Health Regulations: The Food Safety and Standards Authority of India issues regulations under the Food Safety and Standards Act, 2006, governing food safety standards and labeling requirements.

Conclusion​

Delegated legislation plays a vital role in the governance of India, allowing for flexibility and responsiveness in policy-making. However, it must be exercised carefully to avoid encroachment upon fundamental rights and constitutional principles. As law students and LLB students, understanding the intricacies of delegated legislation will serve them well in their future careers, whether in practice or in government service.

[1] See generally, Dicey, A.V., and Morris, J.W., "The Rule of Law," 13th ed. (London: Butterworths, 2016).

[2] Constitution of India, Articles 73 and 162.

[3] Keshavananda Bharti v. Union of India, AIR 1973 SC 1461.

[4] Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564.

[5] State of Maharashtra v. Praful B. Deshpande, AIR 1981 Bom 1.