4 3 Theoretical Objections against Delegated Legislation Delegation

4. 3. Theoretical Objections against Delegated Legislation • Delegation is indispensable and inevitable due to practically convincing needs. • it has not been a bar to theoretical challenges and criticisms against it. • The main constitutional objection raised against delegation of rule making power to administrative agencies has been the doctrine/principle of non delegability of power, which holds that power delegated to one branch may not be redelegated to another.

• People elect their representatives based on their suitability, knowledge and ability to represent their interest. • Hence, it is a generally accepted rule that this mandate bestowed/given by the people cannot be delegated to another individual or organ, which does not stand in a direct relation to the people. • It is a cardinal principle of representative government that the legislature cannot delegate the power to make laws to any other body or authority.

• One of the most commonly cited sources of the rule of non delegation is the common law maxim/proverb delegates potestas non potest delegari which means that a delegate can not further delegate his power. • Simply, the maxim indicates that power that has been delegated originally may not be redelegated.

• The maxim was originally invoked/raised in the context of delegation of judicial power and involves in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved or cleared from his duty by a statue. •

• Therefore the basic principle underlying the maximum is that discretion conferred by the statute on an authority must be exercised by that authority alone, unless a contrary intention appears from the language, scope or object of the statute.

• Generally, it implies that, since the people delegated legislative power to the lawmaker, executive power to the prime minister and cabinet and judicial power to the courts, none of the institutions may redelegate its power to any other authority.

• Another objection to delegation of power is based on the doctrine of separation of powers. • In America, the doctrine of separation of powers has been raised to a constitutional status.

• The U. S. Supreme Court has acknowledged that the doctrine of separation of power has been considered to be an essential principle underlying the constitution and that the powers entrusted to one department should be exercised exclusively by that department without encroaching up on the power of another. •

4. 4 Scope of Delegated Legislation • It is accepted at all hands that a rigid application of the doctrine of non-delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. • The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out the social and economic

• The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. • Thus it can be clearly observed that pragmatic or logical considerations have prevailed over theoretical objections.

• Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. • Legislative delegation improves the issue of delegable and non-delegable legislative powers.

• The legislature after formulating the fundamental laws, can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. • The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive/ fundamental provisions contained in the

• This indicates that only the subsidiary or secondary part of the legislation could be delegated to administrative agencies so as to enable them fill any available gaps; i. e. the legislative body ought to state a logical principle and that the executive branch would merely fill in the details. • Subordinate legislation can cover only subject matters delegated expressly in the