Delegated Legislation and Its Limitations

Question: What are rules and regulations? Discuss the reasons for delegating rule-making power through an Act and mention the matters that cannot be included in regulations.

1. Meaning of Rules and Regulations

Rules and regulations refer to a set of subordinate legal provisions framed by an authorized body under the powers conferred by an Act to facilitate its effective implementation. They are primarily procedural in nature and clarify the methods, processes, and administrative arrangements necessary to enforce the provisions of the parent Act.

Generally, rules and regulations do not independently create substantive rights, obligations, offences, or penalties. Instead, they prescribe the procedures for implementing the rights, duties, liabilities, and penalties established by the parent Act.

The Constitution of Nepal also recognizes the power to frame rules for specific purposes. For example, Article 104 empowers the Federal Parliament to formulate rules for conducting its business. Similarly, the Government of Nepal, provincial governments, and rural municipal and municipal executives may formulate rules of business allocation and business transaction.

Accordingly, the legislature, executive, judiciary, constitutional bodies, and autonomous or statutory institutions may formulate rules within the scope of the authority granted to them by the Constitution or the relevant legislation.

2. Reasons for Delegating Rule-Making Power Through an Act

An Act often delegates rule-making authority to the concerned government or authorized institution to address the procedural, technical, and administrative requirements of implementation. The major reasons for such delegation are as follows:

1. To keep Acts concise: Including every procedural detail in an Act would make legislation unnecessarily lengthy, complicated, and difficult to amend.

2. To ensure effective implementation: The executive or implementing authority can formulate practical procedures and technical requirements needed to enforce the law effectively.

3. To utilize technical expertise: Relevant ministries, departments, and specialized institutions possess practical experience and technical knowledge that can help maintain a balance between legal requirements and implementation realities.

4. To facilitate timely amendments: Rules can generally be amended more easily than Acts, allowing the legal framework to respond to changing circumstances, emerging needs, and technological developments.

5. To address implementation problems promptly: Practical difficulties identified during implementation can be addressed through timely amendments to rules, provided they remain within the authority delegated by the parent Act.

6. To reduce the legislative workload: The legislature may not have sufficient time to deliberate on every administrative and technical detail. Delegation enables it to concentrate on fundamental legal principles and substantive policy matters.

3. Matters That Cannot Be Included in Rules and Regulations

Rules and regulations are a form of delegated legislation. Therefore, they must remain within the scope of the Constitution and the authority conferred by the parent Act. Substantive matters should generally be addressed by the Act itself, while rules should deal primarily with procedural and implementation-related matters.

Unless specifically authorized by the relevant Act and subject to constitutional limitations, the following matters should not be introduced through delegated legislation:

1. Establishment and operation of funds: Creating and regulating funds without an adequate legal basis in the parent Act.

2. Financial liabilities on public funds: Imposing financial obligations on the Consolidated Fund or other government funds without the required legal authorization.

3. Matters relating to suspension or keeping proceedings pending: Introducing provisions to hold matters in abeyance where such authority has not been granted by law.

4. Creation or removal of offences and penalties: Declaring an act to be an offence, decriminalizing an existing offence, prescribing punishment, or introducing other substantive criminal-law provisions without adequate authority in the parent Act.

5. Taxation and adjudicatory jurisdiction: Imposing or collecting taxes, changing tax rates, abolishing taxes, or establishing judicial or quasi-judicial bodies and conferring jurisdiction on them without the necessary legal authority.

6. Matters constitutionally required to be governed by law: Introducing provisions on subjects for which the Constitution specifically requires legislation in accordance with law, without satisfying that constitutional requirement.

7. Restriction of fundamental rights: Imposing restrictions on fundamental rights without the constitutional and legislative authority required for such restrictions.

8. Regulation and licensing without statutory authority: Regulating a matter or issuing licences or permits where the parent Act has not expressly or adequately authorized the exercise of such power.

9. Appointment, retirement, and qualifications: Prescribing substantive provisions concerning appointments, retirement, or eligibility requirements without the necessary statutory authority.

10. Unauthorized sub-delegation: Further delegating rule-making power to another authority without legal authorization.

11. Control over personal conduct: Introducing restrictions on individuals’ everyday conduct or behaviour without a sufficient legal basis.

12. Violation of natural justice: Introducing provisions that are inconsistent with the principles of natural justice, including the right to be heard and the requirement of fairness in decision-making.

These limitations are intended to prevent delegated legislation from exceeding the authority granted by the parent Act or replacing the role of the legislature in determining substantive legal matters.

Conclusion

Rules and regulations are essential instruments for implementing Acts effectively by providing the necessary procedures, technical standards, and administrative arrangements. Delegating rule-making power reduces the legislative workload, facilitates timely amendments, and improves practical implementation.

However, such delegation must remain within the limits prescribed by the Constitution and the parent Act. Fundamental rights, offences and penalties, taxation, public financial liabilities, and other substantive legal matters must not be regulated through rules beyond the authority granted by law. Properly controlled delegation therefore promotes effective administration while preserving the rule of law and legislative accountability.