We have three organs of the state one is the legislature, second happens to be the executive, third happens to be the judiciary. The legislature make the laws, the executor implement the laws, the judiciary interprets the laws. So who makes the laws? It is the legislature. So what will the legislature do? They principally come up with the laws and when they are not able to come up with the rules and if these rules are allowed to be made by the executive that is what is called as delegated legislation.
Ideally, the legislature are supposed to make the laws but when they're not doing it, but instead this particular power is given to the executive to make the rules where they would have created a parent law under the parent law, if rules is delegated to the executor, that is what is called as delegated legislation. So, in delegated legislation, what we have is a parent law. So, they will give the structure they will give the skeletal structure of this particular law, but the muscle, the blood will be filled in by the executive, which is called as the delegated legislation. So, the legislature is giving preference to the executive where it is asking the executive to draft the rules within the ambit of the parent law is what is called as delegated legislation.
This delegated legislation is also called as the subordinate legislation, we know for the fact that the legislature makes the laws it is in the form of an act. So the parent act is what is done by the legislature, under the parent act, if there are rules that are made by the executive, that is what is called as the executive rules or delegated legislation or subordinate legislation.
What are the factors leading to the growth of delegated legislation?
When it comes to the Parliament, they do not have too much of time to look into all the laws, they do not have too much of time to discuss every kind of legislation. So what do they do, they basically come up with the skeletal structure, and they give this authority to the executive to come up with the rules within this particular skeletal structure, since the parliament does not have much of the time and since rulemaking also requires a lot of deliberation as well this is given to the executive.
The second is with respect to the technicality. Let's say for example, when it comes to the legislature, what exactly happens, there are representatives of the people, this person can be any person who need not have to have any technical qualification as well. But when it comes to few laws, for example, data protection, or if it has to do with the science and technology and its policies, these will require the technical experts. So, what will happen, you would have few parliamentarians who know about it, but others who may also not know about it as well. So, the primary skeletal structure would be given by the parliament. So, this is how the framework has to be within this particular framework is what you have to come up with the rules. So the skeletal structure would be given, but the rules will be taken up by the executive. So that is what is called as technicality. So the technicality for drafting of the rules will be known to the executive of the administrative executive and as a result, because there is too much technicality, there is also improvement or more delegated legislations that are coming into picture.
Third is to do with flexibility. What is the issue? When it comes to the laws when, you require the parliament coming up, they have to discuss it, they have to deliberate on it. And whenever a bill has to be proposed, they have to propose it. Sometimes it goes to the committee as well, joint parliamentary committee, they will again review it. So when it comes to the normal legislations or the act, it will take a lot of time. But if it is delegated legislation, they don't have to discuss it in the parliament, they can keep making changes in the rules as well. So this offers a lot of flexibility when it comes to the delegated legislation.
And fourth is to do with experimentation as well. Let's say for example, we have the government of India, which has come up with a law but then there are rules which they have not come up with this is passed on to the executive. So the executive would be able to experiment a particular legislation, make changes within the rules and ultimately devise a plan to know whether it is right or wrong. But if it is a law, you will not be able to experiment which is why what we have is the delegated legislation.
Finally, if there are any emergency situations, let's say for example, a cyclone a disaster, something that strikes a particular region, what you require is the flexibility for the officer to operate in that particular scenario. If there is an act, he has to be stuck by this particular act, there is a parent act which he has to follow, but there are rules as well. These rules can also be changed during the emergency because he's being given that executive authority. So because of all these factors, pressure upon parliamentary time, technicality, flexibility, experimentation, emergency so on and so forth. What it requires is the legislator creating a parent law, under this parent law rules can be given to the executive. So certain amount of legislative work can be delegated, that is what is called as delegated legislation.
So, in delegated legislation, what you have is a parent law, this parent law created by the legislature, but then there are some rules which are delegated to the executive. So, the executive will also make the rules when we speak about delegated legislation. There are two types of delegated legislation one is what is called as the positive delegation. The other is what is called as the negative delegation. What is this positive delegation, the positive delegation is where the limits are clearly defined in the parent law. So, when limits are defined, this is what you have to do, this is what you cannot do. So, if that is given in the parent law, that is what is called as positive delegation. Next, what we have is a negative delegation, where the delegated power does not include power to do certain things. So if certain things cannot be done, that is what is called as negative delegation. Delegated legislation, including rules and regulations formed by the state and central authority status administrative personnel should not supplant but supplement the parliamentary statute from which it draws the power. So, you have the parliamentary law, which is the major parent law or Mother law from which you should be able to make the rules, but you cannot override the parent law says the Supreme Court of India.
What are the criticisms for the growth of the delegated legislation?
One is the arbitrariness. When it comes to the negative area, there can be few administrative personnel, who can also make laws which are arbitrary in nature. So, there is a high chance of delegated legislature getting violated as well, they may also ensure that the parent law is not formulated as in the present situation. So they may not compelled by the parent law. So, there is a lot of arbitrariness this will go against the rights and duties enshrined by that particular law as well as the Constitution. So, the first major issue is there is chance of arbitrariness, when it comes to such rules.
Second is the absence of discussion, when it comes to the legislation, what exactly happens, we have the Parliament which comes together, you also have opposition political parties, which also discuss as well, but when it comes to these rules, there are no discussions entire responsibilities taken by the executive, what if they come up with a rule that is very arbitrary, this will not be discussed, this will not have any discussion in the parliament, this will not be thrown open to the public debate and discussion as well, so there is no discussion on this route.
Then there is absence of transparency to the public, as we just discussed, because it is arbitrary. This basically means that the transparency that is expected from this particular legislation is also not present with respect to the rules and finally, there is absence of balance of power. So what we require is separation of powers. If the executive have more powers, it means it is violating the separation of powers doctrine is another major concern.