The History of the Growth of Delegated Legislation – Notes

The question as to why delegated legislation is enormously increasing must be examined with care. This question is closely connected with the ideas regarding the functions of the State. State in earlier days was principally con­cerned with the maintenance of law and order within the country, repelling the enemies and the realization of revenues.

The individual was left to engage himself freely in various activities. Trade, com­merce and other economic and social activities were left to the individual’s initiative and State interference was minimum.

The functions of the State were limited and, accordingly, the work of the government was simple. Very rarely did Parliament confer legislative powers upon the administration, to meet situations requiring prompt action.

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In most of the cases, Parliament supplied necessary legislation and very few powers of an insignificant nature were left to the ad­ministration. In a recent case In re Delhi Laws Act, decided by the Supreme Court of India. Fazal Ali, J. summarised the reasons for the growth of delegated legislation- reasons which apply not to India but practically to every country in the world. He observed:

“This form of legislation has become a present day necessity and it has come to stay. It is both inevitable and indispensable.

The legislature has to make so many laws that it has no time to devote to all the legislative details, sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and have the details to be worked out by those who are more familiar with the subject.

Again when complex schemes of reforms are to be the subject of legislation it is difficult to bring out a self-contained and complete Act straight away, since it is not pos­sible to foresee all the contingencies and envisage all the local re­quirements for which provision is to be made.

Thus some degree of flexibility becomes necessary, so as to permit constant adoption to unknown future conditions without the necessity of having to amend the law again and again.

The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilise the results of its investigation and experiments in the best pos­sible way.

There may also arise emergencies and urgent situations re­quiring prompt actions and the entrustment of large powers to authorities who have to deal with the various situations as they may arise.”

He refers to certain examples of statutes of England to show that the object of these laws were such a nature which cannot be achieved except by utilizing delegated legislation.

He further points out that: “The complexity of modern administration and the expan­sion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various authorities, on suitable occasions.”

He further warns that the practice is dangerous and the limits should be laid down clearly and the courts must be in a position to exercise effective control over the exercise of powers by administra­tive authorities.

Emergency situations, e.g., the cholera epidemic of 1882 were met by special legislation. After the reforms of 1882 Parliament be­came alive to the necessities of new situations and created new bodies for the handling of the increased work arising out of new responsibilities of the State.

For this purpose Parliament conferred more and more powers of legislation upon the administration. Parlia­ment gave only the broad outlines of measures that could be taken. The whole work of filling in details of implementing the policy laid down in Schemes was left to the administration.

A progressive society developing industrially give rise to numerous problems which demand quick, effective and efficient handling. Maitland sums up the whole situation by saying that:

“the new wants of a new age have been met in a new manner by giving statutory powers of all kinds, sometimes Queen in Council, sometimes to the treasury, sometimes to a Secretary of State, sometimes to this board, sometimes to another.”

The sphere of Government activity widened. The State gradually came to be regarded as a guardian mother of the people rather than a protector, master or father. Hence legislative measures were taken to give relief to the poor, to reorganize the municipal boroughs, to protect the people against disease and to regulate the trade practices, etc. etc.

The implementation of each of those measures was left to the administrative agencies or varying types. These administrative agen­cies were given the power of making rules and regulations necessary for the purpose. The administrative agencies were later modified in structure.

After 1900 we find a further increase in delegated legisla­tion particularly because of rapid economic and social progress and the two World Wars.

World War I gave rise to the need of conferring of wide powers upon the administration for the control and regulation of dangerous drugs, free arms, official secret, etc. The trade and com­merce and public safety also attracted governmental interference.

These powers were given because national defence and the well being of the people demanded prompt and appropriate action. After the war the State had to meet various other problems and for the pur­pose administrative legislation was considered to be the proper remedy.

Another emergency arose due to the crisis of 30’s and the remedy was again administrative legislation. This situation required appropriate speedy action and expert handling and therefore various laws of a temporary nature were passed.

The powers conferred upon the administration were of a temporary nature but they were very wide in scope. The crisis was so grave and conditions were so rapidly changing that administrative legislation was the only answer to the problem.

The second World WAR with all its evils was another crisis which necessitated the giving of the wide powers to the administra­tion for various purposes, e.g., food supplies, war supplies, etc. A number of important rules and regulations were framed to deal with diverse problems in a speedy and effective manner.

The two World Wars and the enormous scientific and tech­nological progress together with the industrial and social progress showed the fallacy of laissez faire and the conception of “Social Welfare State” became firmly entrenched.

This has given rise to at a meandrous increase in the functions of the State unknown in the early stages. Now the State regulates the life of the people in innumerable ways.

To deal with this increased work of a different nature, obvious­ly new methods and techniques had to be used and-developed. There is a consensus of opinion that delegated legislation is the product of the changed conditions of the society and it is to fulfill the needs of a modern progressing society.

The administration is to perform duties of complicated nature. For various reasons necessary legislation can­not possibly be made by the Parliament and hence powers are to be given to the administration.

It becomes quite clear from the above discussion that the widen­ing of the sphere of governmental activity in a gradual manner has given rise to an ever-increasing amount of delegated legislation.