Friday, December 21, 2012

What is delegated legislation?

It is very difficult to give any precise definition of the expression ‘delegated legislation’ and so is the scope of it.
Justice Mukherjea said- Delegated legislation is an expression which covers multitude confusion. It is an excuse for the legislators a shield for the administration and a provocation to the constitutional jurists.
In Halsbury’s Laws of England it has been said that- when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation.
Simply, when the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.
Delegated legislation is recognized by article 65(1) of the Bangladesh Constitution- “Nothing shall prevent parliament from delegating to any person or authority, by Act of parliament, power to make orders, rules, regulations, by-laws or other instruments having legislative effect”.
In conclusion it can be said that, delegated legislation refers to all law making which takes place outside the legislature. Delegated legislation may also be expressed as rules, regulations, notification, bye-law, scheme and direction. These terminologies are confusing because different words are used for the same thing and same words are used for different things.
1. Rule: The term ‘rule’ is defined in the General Clauses Act, 1897 as a rule made in exercise of power conferred by any enactment. It also includes a regulation made as rule under any enactment. These rules may be applicable to a particular individual or to the general public.
2. Regulation: This term is not confined to delegated legislation only. It means an instrument by which decision, orders and acts of the government are made known to the public. But in the sphere of delegated legislation, the term relates to the situation where power is given to fix the date for the enforcement of an Act or to grant exemption from the Act or to fix prices etc.
3. Order: This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The specific orders refer to administrative actions while the general order refers to administrative rule-making.
4. Bye-laws:  The term has been used to mean the rules made by autonomous bodies.
5. Directions: The term ‘direction’ is an expression of administrative rule making under the authority of law or rules or orders made there under. These may be recommendatory or mandatory. If mandatory, they have the force of law.
6. Scheme: The term ‘refers’ to a situation where the law authorizes the administrative agency to lay down a frame work within which the detailed administrative action is to proceed.

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