Delegated and Plenary Legislation

Plenary legislation is law made by a legislature exercising full lawmaking authority within its allotted field. Delegated legislation consists of rules, regulations or other legal instruments made by an authority under powers conferred by an enabling law. The distinction concerns the source and scope of lawmaking power, not merely who approves the resulting law.

Source and scope of legislative power

Plenary power is original legislative authority within the relevant constitutional framework; delegated power is authority entrusted by a legislature for specified purposes.

• Articles 245 and 246, read with the Seventh Schedule, provide the principal framework for Parliament’s and State Legislatures’ territorial and subject-matter competence.
• A legislature exercising plenary power may determine policy and enact or amend substantive law within its competence, subject to constitutional limitations.
• An authority exercising delegated power must remain within the purposes, scope and conditions of the parent Act, as well as the Constitution.
• Plenary does not mean sovereign or unlimited: legislative competence, fundamental rights and other constitutional restrictions remain binding.

What may be delegated

Delegation allows a legislature to establish the governing policy while entrusting its detailed implementation to another authority. This accommodates technical detail and changing administrative needs.

• The legislature cannot abdicate its essential legislative function, which includes determining legislative policy and laying down the governing standard.
• Within an adequate statutory framework, delegated legislation may prescribe procedures, forms, technical standards and implementation details.
• Delegated legislation has legal force, but its maker cannot assume the unrestricted policy-making authority of the legislature.

Control and the test for distinguishing them

The decisive inquiry is whether an authority exercises legislative competence of its own or a limited rule-making power entrusted under another law.

• Judicial review of plenary legislation examines constitutional validity; delegated legislation must additionally satisfy the parent Act.
• Delegated legislation may be invalid as ultra vires if it exceeds the delegated power or violates mandatory requirements governing its making.
• Legislative scrutiny may include laying rules before the legislature and examination by committees on subordinate legislation, subject to the applicable framework.
• A requirement of assent or approval does not, by itself, make legislation delegated; the authority’s legal foundation and the nature of its power must be examined.