equal or greater importance than the judicial system
May 25, 2019
or greater importance than the judicial system developed through the common
law. The causes of this new and divergent arm of the law originated in the
fundamental changes which occurred throughout the past century in the social
and industrial life of this country, changes momentous enough to effect, in
some spheres of social and industrial activity, entirely original and
unprecedented methods of dealing with the problems presented therein. These
causes must be considered in any intelligent study of the problem of
administrative law. The interventionist role of the welfare state practically
necessitated the increment of the nature and extent of power of governments. Simultaneous,
with such necessity come the need for controlling the manner of exercise of
power so as to ensure protection of individual rights, and generally legality
and fairness in the administration. With such background, administrative law,
as a legal instrument of controlling power, began to grow and develop too fast.
Typically, with the proliferation of the administrative agencies,
administrative law has shown significant changes in its nature, purpose and
scope. The causes of this
new and divergent arm of the law originated in the fundamental changes which
occurred throughout the past century in the social and industrial life of this
country, changes momentous enough to effect, in some spheres of social and industrial
activity, entirely original and unprecedented methods of dealing with the
problems presented therein. These causes must 00be considered in any
intelligent study of the problem of administrative law.
THE REASONS FOR THE
GROWTH OF ADMINISTRATIVE LAW
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Administrative law seems to have developed
from a combination of forces, some pressing on the legal system from without,
others from within. From without came the most powerful forces, economic and
social; from within came revolt against the impractical technicalities and
rigidity of a structure adapted by and for older generations, conditions, and
institutions, and which were welded too strongly on the present. Its growth and
rising Importance can be studied under the following heads.
Administrative Law is Supplement to
The sources of both
constitutional and administrative law are the same and both are concerned with
the functions of government and both are part of what is sometimes known as
public law. In India, administrative law has its special significance because
of the proclaimed objective of the Indian constitution, to build-up a welfare
society. Administrative law is a species of constitutional law therefore it is
subordinate to constitutional law1.
The only difference between
the two is that administrative law is
concerned with the intricacies of running a government while constitutional law
is all about the issues of the legality of the provisions of the constitution.
Likewise, the first is more specific while the latter is the general law.
developments and the increasing specialization has required for the increased
need of particular treatment of undertakings by government authorities.
of people in the administrative functioning to provide the necessary authority
to the administrative officials so that they can address the challenges arising
due to extraordinary
circumstances or crisis circumstances.
adaptability in the authoritative system so that the challenges emerging
because of social and economic factors could be tended to all the more
adequately and efficiently.
developments and the increasing specialization has required for the increased
need of particular treatment of undertakings by government authorities.
SCOPE OF ADMINISTRATIVE LAW
Now one most important
question arises is, what was the need for this branch of law? So the scopes are as
methods and procedures of these administrative organs are also studied by this new
branch of law.
covers the nature of structure, powers and functions of all these
also makes available all the relevant remedies to the persons whose rights are
infringed by the operations of these organs during the course of
and how administrative organs are to be controlled is also viewed by
Just to summarize the
above we can basically say that, administrative law specifies the rights
and liabilities of private individuals in their dealings with public officials
and also specifies the procedures by which those rights and liabilities can be
enforced by those private individuals. It provides accountability and
responsibility in the administrative functioning. Also there are specified laws
and rules and regulations that guide and direct the internal administration
relations like hierarchy, division of labor, etc.
back to our actual topic that is the legislative functions of the
administration, so before starting straight with the functions let us see what
does this word legislative means? So it belong to the branch of government that
is charged with such powers as making laws, levying and collecting taxes, and
making financial appropriations. Basically the Legislative Department is mainly concerned with drafting
of all principal legislation for the Central Government viz, Bills to be introduced
in Parliament, Ordinances to be promulgated by the President, measures to be
enacted as President`s Acts for States under the President`s rule and
Regulations to be made by the President for Union territories. It is also
concerned with election Laws namely the Representation of the People Act 1950
and the Representation of the People Act 1951. In addition it is also entrusted
with task of dealing with certain matters relating to List III of the Seventh
Schedule to the Constitution like personal law, contracts evidence etc. The
responsibility of maintaining up to date the statutes enacted by Parliament is
also with this department.
In our country the central
legislature is called the Parliament, which has two houses:
Sabha popularly known as The Council of State
Sabha popularly kwon as The House of People
branch is one of three divisions of government that works in
conjunction with the executive and judicial branches. Its main responsibility
is the creation of laws.
Now talking about the
functions that need to be perform by administration or we can say the delegated
legislation. John Salmond has defined it
as, “that which proceeds from any authority other than the sovereign power and
is therefore dependent for its continued existence and the validity on some
superior or supreme authority”.
Simply delegated legislation
(sometimes referred as secondary legislation or subordinate legislation or
subsidiary legislation) is a process by which the executive authority is given
powers by primary legislation to make laws in order to implement and administer
the requirements of that primary legislation. Such law is the law made by a
person or body other than the legislature but with the legislature’s authority. Power is transferred from the principal lawmaker to the
lower body, which may be the executive, cabinet, council of minister, or a
specific administrative agency, by the mechanism of delegation2. Generally specking
the delegation refers to the act of entrusting another authority or empowering
another to act as an agent or representative. By the same token, delegation of
legislative powers means the transfer of law-making authority by the
legislature to the executive, or to an administrative agency. In line with the
power granted to them by the legislature administrative, agencies can issue
rules, regulations and directives, which have a legally binding effect.
One of the most important things that need to
be noted is that the regulations and the statutory rules are the most common
forms of delegated legislation. They are made by the executive or a minister
and apply to the general population. By-laws, and sometimes Ordinances, are
made by a local government authority and apply to the people who live in that
area. Rules commonly describe procedure to be followed in courts.
NEED FOR DELIGATED LEGISLATION
here a question arises, what is the need to delegated legislation?
The process of delegated legislation enables the Government to
make a law without having to wait for a new Act of Parliament to be passed.
Further the delegated legislation empowers the authority to modify or to alter
sanctions under a given statute or to make technical changes relating to the law.
The delegated legislation always plays a very important role in the process of
making of law as there is more delegated legislation each year than there are
Acts of Parliament. In addition, delegated legislation has the same legal
standing as the Act of Parliament from which it was created.
Taking into account the above general justification, the
following factors may be mentioned as reasons for the need for delegated
Subject of Matter
On the time of
Following are the reasons why delegated
legislation is important
Delegated Legislation reduces the burden of
already overburdened Legislature by enabling the executive to make or alter the
law under the authority of Legislature. Thus, this helps the Legislature to
concentrate on more important matters and frame policies regarding it.
It allows the law to be made by those who
have the required knowledge and experience. For instance, a local authority can
be permitted to enact laws with respect to their locality taking into account
the local needs instead of making law across the board which may not suit their
The process of delegated legislation also
plays a significant role in an emergency situation since there is no need to
wait for particular Act to be passed through Parliament to resolve the
Finally, delegated legislation often covers
those situations which have not been anticipated by the Parliament during the
time of enacting legislation, which makes it flexible and very useful to
law-making. Delegated legislation is, therefore, able to meet the changing
needs of society and also situations which Parliament had not anticipated when
they enacted the Act of Parliament.
POSITION UNDER INDIAN
Constitution of India gives powers to the Legislature to delegate its functions
to other authorities, to frame the policies to carry out the laws made by it.
In the case of D. S. Gerewal v. State of Punjab3.
In this case the Supreme Court held that Article 312 of the Constitution
of India deals with the powers of delegated legislation. Justice K.N. Wanchoo
observed that “There is nothing in the words of Article 312 which takes away
the usual power of delegation, which ordinarily resides in the legislature.4 Also in Agricultural Marketing Committee V. Shalimar
Chemical Work Ltd.5 Supreme Court held
that delegated legislation is the legislation which proceeds from any authority
other than the sovereign power and depends source superior authority for its
continued existence and validity.
TYPES OF DELEGATED
Delegated Legislation is a term which
covers the vast amount of legislation made by government agencies and the
Governor-General under authority of Acts of Parliaments, which delegate this
power to agencies. This type of legislation is also known as Subordinate
Legislation or, since 2005, Legislative Instruments. Within the broad area of
Delegated Legislation the following more specific terms are sometimes used:
The most common form
of delegated legislation. Used for legislation of general application emanating
from a government department. Published in the Statutory
Rules series until 2004 and in the Select Legislative Instrument series from 2005
specifying procedural formalities, eg court procedures such as the High Court
Rules. Published in the Statutory Rules series
of non self governing territories, made by a federal government department to
apply to a particular territory. Also used for the legislation of some State
local government bodies.
Made by a statutory
corporation having effect only within the area of responsibility of the
authority. Also used for the legislation of some State local government bodies
There is also a range of other delegated legislation which includes:
Decisions, Declarations, Determinations, Directions, Orders, etc.
OF DELEGATED LEGISLATION
Delegated legislation apart from having many
advantages is criticized on many grounds which are as follows:
It is argued that delegated legislation
enables authorities other than Legislation to make and amend laws thus
resulting in overlapping of functions.
It against the spirit of democracy as too
much-delegated legislation is made by unelected people.
Delegated legislation subject to less
Parliamentary scrutiny than primary legislation. Parliament, therefore, has a
lack of control over delegated legislation, and this can lead to inconsistencies
in laws. Delegated legislation, therefore, has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the
Act of Parliament.
Delegated legislation generally suffers from
a lack of publicity. Since the law made by a statutory authority not notified
to the public. On the other hand, the laws of the Parliament are widely publicized.
The reason behind the lack of publicity is the large extent of legislation that
is being delegated. There has also been concern expressed that too much law is
made through delegated legislation.
in the end the only thing that can be concluded is that the study of this
branch of law which has the great importance in every country of this world,
and as regard to India it has a very great significance because it proclaimed
the objectives of our Indian polity to build up as a socialistic pattern
society and objective of establishing this type of society has generated
administrative process and hence administrative law at a very large scale. One
important thing that need to be noted that administration in India is bound to
expand further and at a quick speed, and with this comes a negative thing that
a strong drive for a rapid expansion has its own danger as developing country
like India where we know that the roots of democracy are not deep and a strong
mechanism may have a tendency to rids rough-shod over the rights of
people, but if these rights exercised
properly and in the right manner then these power of administration can lead to
the welfare of the state but on the other hand if abused the can lead to
administrative disaster. The study and development of administrative operation
of the government interested in social welfare. And when we talk about this legislative delegation it is important in the wake of the rise in the number of
legislations and technicalities involved. But at the same time with the rise in
delegated legislation, the need to control it also arises because with the
increase in the delegation of power also increases the chance of the abuse of
power. The judicial control apart from the legislative and procedural control
is the way how the delegation of power can be controlled. Thus, the delegated
legislation can be questioned on the grounds of substantive ultra vires and on
the ground of the constitutionality of the parent act and the delegated
legislation. The latter can also be challenged on the ground of its being
unreasonable and arbitrary.