Class 10: The Executive and Delegated
Legislation
Introduction and Agenda
Class 10 Focus: The Executive
Structure of the executive
Functions of the executive
Major source of law from the executive - delegated legislation
Next Class (Feb 22nd) Focus:
Practical application
Problem-solving exercises
How to read and apply legislation and delegated legislation in given
situations
The Executive as a Key Institution of the Indian Legal
System
What is Executive Power?
Implementing laws
Enforcement of legislation
Reference to the government and its officials
Defined negatively in judicial decisions: anything that is not legislative or
judicial power (Ram Jawaiya Kapoor case)
Justice Mukherjee: “Executive function connotes the residue of governmental
functions that remain after legislative and judicial functions are taken”
Constitutional Provisions Related to the Executive
Union Executive:
Article 53: Executive power of the Union vested in the President
Article 74: Council of Ministers to aid and advise the President
Article 77: All executive actions in the name of the President
State Executive:
Article 154: Executive power of the State vested in the Governor
Article 163: Council of Ministers to aid and advise the Governor
Recognition of Executive in Constitution:
Article 12: Term “State” includes the executive
Article 13: Sources of law from executive considered as laws
Concept of Collective Responsibility
Council of Ministers collectively responsible to Parliament
Ministers drawn from Parliament remain accountable to Parliament
If they lose majority in Parliament (through no-confidence motions), they
cease to exercise executive power
Structure of the Executive
Traditional Executive Structure
Union level: President → Ministers → Ministers of State →
Secretaries → Departments/Divisions
Ministers drawn from Parliament (politically accountable)
Civil servants (bureaucracy) run departments and divisions
Example: Ministry of Home Affairs structure
Minister → Ministers of State → Home Secretary → Department heads
Departments include Border Management, Internal Security, Jammu &
Kashmir Affairs, etc.
Fourth Branch Institutions
Bodies like CAG (Comptroller and Auditor General) and Election
Commission
Not strictly part of legislature, executive, or judiciary
Function to keep checks on the three branches of government
Constitutional bodies with independent functions
Local Governance
Panchayats and Municipalities
Added through constitutional amendments
Also perform executive functions at local level
Union Territories
Have Lieutenant Governors instead of Governors
Some (Delhi and Puducherry) have legislative assemblies
Others are directly administered by the Union government
Implementation of Law by Executive
Stages of Implementation
Basic statute passed by legislature
Policy outputs and decisions by implementing agencies
Compliance of target groups
Assessment of actual impact
Policy revisions based on feedback
Example Process:
Companies Act passed by Parliament
Ministry of Corporate Affairs creates rules for implementation
Companies comply with Act and rules
Impact assessment conducted
Revisions made if needed
Regulatory Bodies
Definition and Characteristics:
Institutions operating at arm’s length from government
Insulated from day-to-day political pressures
Use technical expertise in policy implementation
Have operational flexibility
Not subject to the same level of collective responsibility as traditional
executive
Examples of Regulatory Bodies:
Reserve Bank of India (RBI)
Securities and Exchange Board of India (SEBI)
Telecom Regulatory Authority of India (TRAI)
Insurance Regulatory and Development Authority (IRDA)
Design Factors for Regulatory Bodies:
Political aspects (appointment process, independence)
Technical aspects (level of expertise required)
Legal aspects (constitutional rights and obligations)
Administrative State vs Regulatory State:
Regulatory state refers only to governance by regulatory bodies
Administrative state is broader - includes both traditional executive and
regulatory bodies
Judicial Interaction with Regulatory Bodies:
Courts review decisions of regulatory bodies
If regulatory body performs judicial functions, it must include judicial
members
Distinction between judicial and quasi-judicial functions determined case-by-
case
High Courts can exercise writ jurisdiction over regulatory bodies even if
appeals go to Supreme Court
Delegated Legislation
What is Delegated Legislation?
Law made by executive under powers conferred by Parliament
Parliament delegates power to make detailed rules/regulations
Allows for technical expertise and flexibility
Reduces burden on Parliament
Types of Delegated Legislation:
Rules: Detailed provisions to implement the parent Act
Regulations: Technical aspects of implementation
Notifications: Formal announcements about implementation
Bylaws: Local level rules
Schemes: Frameworks for implementation
Orders: Decisions in adjudicatory matters (e.g., SEBI orders, RBI orders)
Ordinances:
Not a form of delegated legislation
Power comes directly from Constitution (not delegated by Parliament)
Temporary measures during urgent situations
Require ratification by Parliament
Lapse if not ratified within specified time period
Keeping a Check on Delegated Legislation
Substantive Rules:
Cannot alter or contradict the parent statute
Cannot be unreasonable or arbitrary
Must maintain consistent meaning of terms defined in parent statute
Presumed valid until proven invalid
No excessive delegation (Parliament cannot delegate too much power)
Sub-delegation only if permitted by parent Act
Procedural Rules:
Previous publication requirement (draft rules published for consultation)
Date of publication clearly specified
Placing delegated legislation before Parliament
Public consultation requirements
Possible prior approval requirements from Parliament
Oversight Mechanisms:
Parliamentary oversight (approval, review)
Judicial review of delegated legislation
Public scrutiny through consultation process
Legislative Research Methodology
Purpose of Research:
Policy perspective (implementation analysis)
Legal advocacy (client rights and obligations)
Adjudication (determining disputes)
Primary Sources:
Parent statute or law
Date of effect and duration (sunset clauses)
Constitutional validity analysis
Standing committee reports
Bill (objects and reasons)
Law Commission reports
Judicial decisions
Secondary Sources:
Books
Journal articles
Blogs
Media reportage
Academic commentaries
Research Process:
Examine legislation text
Check constitutional validity
Review provisions and application
Address ambiguities using other sources
Analyze judicial interpretations
Consult secondary literature
