GS Paper 2
Syllabus: Parliament and State legislatures – structure, functioning, the conduct of business, powers & privileges and issues arising out of these
Source: TH
Direction: The article tries to explain the meaning of delegated legislation, its advantages, criticism, etc., in the context of the recent SC ruling.
Context: The Supreme Court ruled that delegated legislation, including rules and regulations enacted by state and central governments, should supplement rather than replace the parliamentary statute from which it derives power.
Background:
- An appeal was filed by the Kerala State Electricity Board against a State HC judgement upholding Regulation 153(15) of the Kerala Electricity Supply Code, 2014.
- Regulation 153(15) of the Code stated that an ‘unauthorised additional load’ in the same premises and under the same tariff should not be counted as ‘unauthorised use of electricity’.
The SC’s verdict:
- It reversed the HC decision and held that the Regulation was inconsistent with Section 126(6) of the Electricity Act, 2003.
- Section 126 of the 2003 Act was enacted with a specific purpose to restrict such unauthorised consumption of electricity.
Observations made by the SC in the above judgement:
- Overdrawing electricity is harmful to the public at large, as it affects the efficiency, and efficacy of the entire supply system, even increasing voltage fluctuations.
- If a rule goes beyond or replaces the rule-making power conferred by the parent statute, the same has to be declared invalid.
- Delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect.
- A delegated power to legislate by making rules or regulations cannot bring into existence substantive rights, obligations or disabilities not contemplated by the provisions of the parent statute.
- A body making rules or regulations has no inherent power of its own to make rules but derives such power only from the statute.
- Hence, it has to necessarily function within the purview of the statute.
The delegated/secondary/subordinate legislation:
Meaning:
- It is the law established by the executive using the authorities granted to them by the parent act in order to implement and administer the primary legislation’s requirements.
- Although the concept of delegated legislation was not mentioned specifically in the Indian Constitution it can be understood by interpreting Article 312.
- This Article gives the right to the Rajya Sabha to open a new branch of All India Service with a majority of two-thirds majority vote and delegate some powers to the new recruiter – All India Service.
- There are many such cases through which delegated legislation under the Constitution of India can be understood.
Advantages of delegated legislation:
- It saves time for the legislature.
- It can be easily done in consultation with the parties affected.
- It allows for flexibility.
- Expert legislation.
- Parliament is not always in session.
- Resorted to in case of emergencies.
- It can be used on an experimental basis.
Criticism:
- Weakens legislative control over the executive.
- The executive has become more powerful and has encroached upon the domain of legislature.
- The division between law-making and implementation gets blurred (against the theory of separations of power).
- Possible misuse for political gains (legislation to benefit the ruling party).
- Lacks rigorous discussion before law making.
- Delegated legislation changes with political changes resulting in political and administration instability.
- Sometimes it is not in conformity with the rule of law.
Conclusion:
- Delegated legislation is necessary, and is likely to increase in volume, in view of the complex social organisation and vast developmental and promotional activities.
- Therefore, some safeguards and controls (courts’ jurisdiction should not be limited, uniform procedures, etc) are necessary and desirable.
Mains Links:
Q. What is Delegated Legislation? Present the contradicting views about delegation of power to legislate while evaluating its pros and cons. (250 words)
