Delegated Legislation

We have come across the word Delegated Legislation quite a time and the powers conferred on other bodies have undergone a vast change and now they are empowered with quite a few powers which were near to impossible in the last decade. it was in the year 1951 the Supreme Court was referred to the decide on the issue of delegated legislation under Article 143 of the constitution in the case of In re Delhi laws AIR 1951 SC 332 and the seven Judges while allowing the delegated Legislation in India followed the principle of separation of powers as it is in UK and negativing the principle of strict separation of power of USA held that the delegated legislation is the essential part of the Indian constitution. In this case in the ratio of 5:2 the majority held that the separation of power was not followed in the strict sense as in USA and held that the maxim  "Delagatus non potest delegare" was not applicable in Indian constitution and Parliament of India was free to delegate some of its sub ordinate authorities for the effective functioning of the legislature.

The ordinance making power of the Executive under Article 123 and 213 of the constitution of India are held to be Delegated Legislation that feature in our constitution as in these particular Articles the power of perform the Legislature functions by the executive in case of dire need has been highlighted and they are empowered with some power in case need arises the power to be used by the executive.

But what about powers in the case of emergency in our country? Is Emergency in our constitution a Delegated Legislation?

 As we know the constitution of India empowers only the legislature to make laws for our country though the Legislature can assign some of its powers to some of its subordinates for effective functioning and percolating the various legislative features down the system but the executive in our country has also been empowered with the Legislative powers to function in case of crisis situation when the houses are not in session and some immediate situation has to be confronted with. The executive functions at that point of time for the legislature and performs the duty for the legislature as a delegated authority. In case of Atlas cycles industries Vs. State of Haryana (AIR 1979 SC 1149) the Supreme court has discussed about the Laying procedure of the delegated Legislature before the Parliament which shows that the delegated Legislation are not supreme but they have to be placed before the houses of the parliament for their effective functioning. So delegated legislation has no value in law if it is not approved by the parliament. So if the same principle is applied for the powers of the executive in our country the executive is not supreme in its sphere and whatever legislative act is passed by them during the period crisis it is reviewable by the parliament and ultimate power lies with the legislature to give validity to the law or revocate the decision of the executive. Similarly in case of emergency situations under Article 352 and 356 the president is empowered to declare emergency in the state for the failure of constitutional machinery and for external aggression under Article 356 on the aid and advice of the council of ministers so if the President declares Emergency with aid and advice of council of ministers still the Legislature ( in the form of council of ministers) have a substantial control but still if it is implemented it has to be again placed before the parliament and then the fate of it can be decided whether it is repealed or extended. And same goes in the case of ordinance also, the act of the executive has to be placed before the parliament as soon as the parliament comes to session and if it is not approved by the parliament the ordinance loses its validity.

So in either ways the parliament will be the final authority in deciding over the executive action taken during the crisis situation and we can say that the functions of the executive in these crisis situations come under Delegated Legislation as the ultimate authority to give validity to those acts of the executive lies with the Legislature.