Delegated legislation

Also called: Subordinate legislation · Topic: Parliamentary Procedure, Committees and Privileges · NCERT: Beyond NCERT

Meaning

Delegated legislation (also called subordinate legislation) is the set of rules, regulations and bye-laws that the executive makes using powers given to it by an Act of Parliament. The Act sets out the main law, and these rules fill in the working details, such as forms, fees and procedures.

It matters because most of the day-to-day working of a law comes from these rules, not from the Act itself. If the rules are delayed or go beyond the Act, the government can weaken or stall a law that Parliament has passed.

Explanation

How it works

• Step 1: Parliament passes an Act. The Act contains the main policy. It also has a section that gives the government the power to make rules.
• Step 2: The bill shows this power from the start. Every bill must carry a memorandum regarding delegated legislation. This paper lists the rule-making powers the bill hands to the executive [4].
• Step 3: The ministry drafts the rules. Where it consults the public, it should give at least 30 days for comments [3][2].
• Step 4: The rules are notified. Rules should be framed within six months of the Act coming into force [3][2].
• Step 5: The rules are laid before both Houses of Parliament. This means they are placed on the table so that MPs can see them and act on them [3].
• Step 6: A committee checks them. The Committee on Subordinate Legislation in each House checks that the rules stay within the powers the Act gave [3].

Forms it takes

• Rules: detailed provisions made by the government under an Act, such as forms, fees and procedures.
• Regulations: similar detailed provisions, often made by a body set up under the Act.
• Bye-laws: rules made by local or other bodies for their own area or members.
• All of these are "law" in a legal sense. Article 13(3)(a) says that "law" includes any order, bye-law, rule, regulation or notification. So these rules must also respect Fundamental Rights.

Limits and conditions

• Parliament may delegate details but not its essential legislative function.
• The essential legislative function means deciding the policy and setting the standards.

• Parliament must do this itself. The executive only fills in the gaps (In re Delhi Laws Act, 1951).

• Rules cannot go beyond the parent Act. A rule that goes past the powers the Act gave is ultra vires (beyond its legal powers), and a court can strike it down.

• Time limit: rules should be framed within six months of the Act coming into force [3][2].
• If the ministry needs more time, it must ask the Committees on Subordinate Legislation for an extension and give reasons.
• Each extension can be for up to three months at a time [3][2].

How Parliament keeps control

• Laying before the Houses: all rules are placed before both Houses [3].
• Negative procedure: the rule takes effect on its own unless Parliament annuls or changes it. Most rules follow this route.
• Affirmative procedure: the rule cannot take effect until Parliament approves it. This is a stronger check.
• Committee scrutiny: the Committee on Subordinate Legislation in each House examines whether the rules stay within the Act [3].
• Internal tracking: ministries send quarterly reports on pending rules to the Law Ministry. These reports are not made public [3].

In the Constitution and practice

• Constitutional base:
• Article 13(3)(a) counts rules, regulations, bye-laws and notifications as "law".

• The power to make any particular rule comes from the Act that Parliament (or a state legislature) passes.

• Who makes it: the executive, meaning the ministries of the Union government and bodies set up under an Act.

• Who checks it: Parliament, through laying and through the Committee on Subordinate Legislation in each House [3]. The courts can also strike down rules that go beyond the Act.
• Landmark case: In re Delhi Laws Act (1951). The Supreme Court held that Parliament cannot hand over its essential legislative function. Only details can be delegated.
• Key instance: the Citizenship (Amendment) Act, 2019 [3].
• It received assent in December 2019 and came into force in January 2020.
• As of October 2022 its rules were still pending, after several extensions.

• The law was on the books, but it could not work without its rules.

• The wider pattern: the executive controls the timing of a law at both ends.

• It decides when an Act commences. For example, the Delhi Rent Control Act, 1995 was never brought into force.
• It also decides when the rules are made.

Don't confuse with

• Ordinance (Art. 123): the President makes an ordinance when Parliament is not in session. It has the force of an Act and lapses six weeks after Parliament reassembles (Art. 123(2)). Delegated legislation is made under an existing Act and lasts as long as that Act and the rule remain in force.
• Act of Parliament (primary legislation): Parliament itself passes an Act through the three readings and the President's assent. Delegated legislation is made by the executive, and it is valid only within the limits the Act sets.
• Commencement notification: this only fixes the date an Act starts to apply. Rules under delegated legislation set out how the Act works, through its forms, fees and procedures.
• Pre-legislative consultation (2014 policy): this means the public comments on a draft bill for 30 days before it is introduced [1]. The 30-day comment period for delegated legislation applies to draft rules made after the Act is passed [3][2].

Prelims Hooks

• In re Delhi Laws Act (1951): Parliament cannot delegate its essential legislative function, meaning deciding the policy and setting the standards.
• Every bill must carry a memorandum regarding delegated legislation, together with the Statement of Objects and Reasons and the financial memorandum [4].
• Deadline for rules: six months after the Act commences. Extensions of up to three months at a time come from the Committees on Subordinate Legislation, not from the Law Ministry or the Speaker [3][2].
• Negative procedure: a rule works unless Parliament annuls it. Affirmative procedure: a rule needs Parliament's approval before it can take effect. A common trap is to swap the two.
• The Committee on Subordinate Legislation exists in each House. It checks whether rules stay within the powers the Act gave [3].
• Citizenship (Amendment) Act, 2019: it came into force in January 2020, but its rules were still pending as of October 2022 [3].

Mains Points

• Delegated legislation is necessary but needs checks.
• Parliament has little time and lacks technical expertise, so experts in the ministries handle the details.
• In practice, laying rules before the Houses and committee review are often a formality.

• Reform ideas: stronger Committees on Subordinate Legislation, and affirmative procedure for important rules.

• Delay in making rules weakens legislative supremacy.

• When rules are delayed, a law that Parliament has passed is suspended in practice by the executive. The Citizenship (Amendment) Act, 2019 is an example [3].
• The quarterly reports on pending rules are not public, so the delay is hard to track [3].

• Reform idea: publish these reports, and make the six-month deadline a firm rule rather than one that is routinely extended.

• Delegation must stay within constitutional limits.

• Under In re Delhi Laws Act (1951), Parliament must set the policy itself.
• Broad "the government may make rules" clauses with no clear standards risk handing over the essential legislative function. They also invite legal challenges on ultra vires grounds.

Related concepts

• Pre-legislative consultation
• Legislative process
• Select committee
• President's assent

Read more

• From bill to Act: the legislative process