Institutional Independence Under Delegated Legislation from the Lens of Governance Beyond Government
October 8, 2026
min read
When we talk about how societies are run, “government” is usually the first word that comes to mind. But in political sociology, scholars make an important distinction: governance is a far broader concept than government. It refers not just to what the state does, but to the entire web of actors, processes, and institutions through which social, political, and economic life is coordinated from local communities to global institutions. 1
The United Nations Development Program (UNDP) defines governance as “The system of values, policies, and institutions through which a society manages its economic, political, and social affairs.” UNDP’s framework places greater emphasis on rights, inclusion, and democratic participation. UNDP’s governance principles are anchored on six pillars: participation, inclusion, non-discrimination, equality, rule of law, and accountability.2
Whereas the World Bank, for its part, defines governance as “The manner in which power is exercised in the management of a country’s economic and social resources for development.” When the World Bank began operationalizing governance as a development concept, it identified four core dimensions that remain highly influential today: public sector management, accountability, legal framework for development, transparency, and information.3
The modern prominence of governance as a concept is closely tied to the rise of neoliberalism from the late 1970s onwards.4 In accordance with governance theory, public administration has become a space where state, market, civil society, and international actors must build consensus together. Following the work of Renate Mayntz and Fritz W. Scharpf, governance is understood as institutionalized modes of coordination through which collectively binding decisions are adopted and implemented to provide common goods. Thus, governance consists of both structure and process. 5
Moving on, statutory instruments are secondary (also termed subordinate or delegated) legislation. Secondary legislation refers to laws that are drafted by any governmental body, institution, etc., upon delegation of the power to make laws by the legislature as required. All secondary legislation has a ‘parent’ primary legislation.
Additionally, “Statutory instruments are a type of law that governments can pass only under specific circumstances. Governments cannot freely pick and choose what they do through a statutory instrument.”6
Moreover, provisions within delegated legislation can be declared invalid by courts if, for example, they are judged not to be consistent with the powers granted in the parent legislation or if the procedures used to draw them up are invalid.
For instance, in R. v. Divers (1999), parts of The Crime (Sentences) Act 1997 (Commencement No.2 and Transitional Provisions Order) 1997 were declared invalid. The Order was made following a part of the Crime (Sentences) Act 1997, which allowed the Home Secretary to make transitional provisions. Still, it did not empower the Secretary of State to amend the text of an Act, in this case the 1967 Criminal Justice Act, in the way the Order sought to do. The Court of Appeal found that 'these were no transitional provisions or savings, and the amendment should have been made by Parliament'. The Secretary of State was therefore acting beyond his authority, and the amendment of the text of the Act by a commencement order was ultra vires and ineffective.7
Historical Aspect:
While the term was fixed in 1946, the phenomenon of delegated legislation is much older.
The classical theory of the separation of powers illustrates that parliaments are typically entrusted with legislative functions. This principle is embedded in most contemporary democratic constitutions, whether presidential or parliamentary, and across both civil law and common law countries. Since the early 20th century, however, parliaments have increasingly delegated lawmaking powers to the executive. This trend is driven by factors such as the growing complexity of legislation, the need to address highly technical issues, and an expansion of the regulatory demands of larger administrative systems.8
The common argument in favor of delegation in the nineteenth century, which authorities, such as Dicey, subscribed to, was that Parliament could not be expected to get involved in the level of detail required for the regulation of the services of the modern state.9
Similarly, for Edward Hallett Carr, “Legislators in Parliament could hardly be asked to devote their attention to the amount of the pauper's butter ration or the length, width, and material of the old woman's under-petticoats, and yet on such details the successful management of the whole scheme would depend.”10
In the Context of Nepal,
To this date, Nepal lacks adept, distinguished laws and provisions regarding delegated legislation, but it is indeed in practice.
Until 1950–1951, there were no provisions regarding the separation of powers, as all the power was vested in the King or the Prime Minister of the state. Only after the revolution, the Interim Government of Nepal Act (1951), did the concept of delegated legislation emerge.
Similarly, in the constitution of 1990, a fundamental change in delegated legislation was observed as the Supreme Court was given the ultimate power of judicial review. Furthermore, the Supreme Court possesses the authority to determine the constitutionality of acts drafted by parliament, and it also decides whether delegated legislation exceeds the scope of authority granted by its parent act or not.
For instance, a petitioner contested the Cabinet Secretariat’s power to regulate retirement provisions through delegated legislation.
The Supreme Court found that the Police Act (1955) lacked explicit provisions on retirement and emphasized that fundamental aspects of police administration, such as appointments, qualifications, pensions, and retirement, must be set out directly in the act itself rather than left to subordinate legislation. The Court noted that this is essential to ensure legal clarity, legal certainty, and effective implementation. As a result, the Court ordered a legislative review of the Police Act to incorporate clear and comprehensive provisions on these matters.11
Similarly, in Madan Bahadur Khadka v Cabinet Secretariat (2012), it ruled that delegated legislation must not restrict the rights and powers granted by primary laws. In other cases, it has declared that matters such as qualifications, retirement, and pensions are substantive and should be governed by the parent act, not by subordinate rules. The judiciary has thus drawn a clear line between substantive law requiring parliamentary approval and procedural or technical regulation permissible under delegated authority. In particular, the Supreme Court has assumed a prominent role in shaping legislative–executive relations and in rights adjudication.12
The Constitution of Nepal (2015) does not provide specifically for the regulation of delegated legislation. However, Article 82, alongside Articles 104, 194, and 218, empowers the Cabinet, federal and provincial legislatures, and local government regarding delegated legislation.
The Legislation Act, 2024 (विधायन सम्बन्धमा व्यवस्था गर्न बनेको ऐन) is a significant development concerning laws of delegated legislation in Nepal. It has thoroughly defined delegated legislation, such as rules, directives, orders, and so on. Furthermore, it provides factors to consider, limitations, while drafting the delegated legislation, respectively, from sec. 13-20.
The increasing influence of delegated legislation in Nepal can be observed through,
As per Section 79 of the Nepal Rastriya Bank Act 2058, the delegated legislation, NRB Unified Directives (एकीकृत निर्देशन), has been issued by the Nepal Rastriya Bank annually and is legally binding on all banks and financial institutions. Similarly, according to Sec 35 of the Nepal Electricity Authority Act, 2041, the Nepal Electricity Authority has enacted the Electricity Distribution Regulations, 2078, which governs billing lines and grid management.
Furthermore, as per Sections 61 and 62 of the Telecommunications Act, 2053, the Nepal Telecom Authority has issued NTA Telecommunication Regulations, the guidelines which ISP and telecom companies are required to comply with regarding bandwidth allocation and service quality.
Under Sec 34 of the Tribhuvan University Act, 2049, Tribhuvan University enacted the Tribhuvan University Rules relating to Organization and Academic Administration 2050, which govern the criteria that need to be fulfilled by private colleges for affiliation, the appointment process for professors, and the campus chief.
Today, approximately 350 acts are in force at the federal level, along with around 320 secondary legal instruments issued by the government, judiciary, and constitutional bodies. These figures exclude regulations by public enterprises, universities, and autonomous institutions. Seven provincial assemblies have enacted roughly 450 statutes, many of which authorize delegated legislation. The extent of primary laws and delegated legislation passed by the 753 local government bodies is not known, suggesting that the total volume of primary and secondary legislation exceeds by far what is officially recorded.13
Despite these provisions, Nepal lacks a foundational law in the form of a delegated legislation act for standardizing the process.
Furthermore, there are recurring problems identified regarding the content and process of delegated legislation in Nepal, the tendency by the executive to exceed its mandates, the trend for over-delegation by Parliament, which has often delegated legislative powers too broadly or vaguely, without limitations or guiding standards, and there is a poor record-keeping on the amount of delegated legislation such as the Ministry of Law, Justice, and Parliamentary Affairs does not maintain comprehensive records of delegated legislation. These gaps weaken transparency, legal certainty, and parliamentary oversight.14
The growth of the regulatory power of nonstate organizations highlights the public/private governance line. Once understood as segregated objects of laws and put into governance ghettos whose borders were strictly controlled by the state, nonstate entities are now assuming governance roles well beyond the comprehension of theoretical constructs of even a generation ago. It suggests the reconstitution of governance away from a linear, hierarchical, monopolistic exercise, in which only one sovereign could occupy a geographic space at a time. In its place, functionally differentiated governance systems have emerged, converging within dynamic governance networks of private and public power.15
The United Nations Development Program (UNDP) defines governance as “The system of values, policies, and institutions through which a society manages its economic, political, and social affairs.” UNDP’s framework places greater emphasis on rights, inclusion, and democratic participation. UNDP’s governance principles are anchored on six pillars: participation, inclusion, non-discrimination, equality, rule of law, and accountability.2
Whereas the World Bank, for its part, defines governance as “The manner in which power is exercised in the management of a country’s economic and social resources for development.” When the World Bank began operationalizing governance as a development concept, it identified four core dimensions that remain highly influential today: public sector management, accountability, legal framework for development, transparency, and information.3
The modern prominence of governance as a concept is closely tied to the rise of neoliberalism from the late 1970s onwards.4 In accordance with governance theory, public administration has become a space where state, market, civil society, and international actors must build consensus together. Following the work of Renate Mayntz and Fritz W. Scharpf, governance is understood as institutionalized modes of coordination through which collectively binding decisions are adopted and implemented to provide common goods. Thus, governance consists of both structure and process. 5
Moving on, statutory instruments are secondary (also termed subordinate or delegated) legislation. Secondary legislation refers to laws that are drafted by any governmental body, institution, etc., upon delegation of the power to make laws by the legislature as required. All secondary legislation has a ‘parent’ primary legislation.
Additionally, “Statutory instruments are a type of law that governments can pass only under specific circumstances. Governments cannot freely pick and choose what they do through a statutory instrument.”6
Moreover, provisions within delegated legislation can be declared invalid by courts if, for example, they are judged not to be consistent with the powers granted in the parent legislation or if the procedures used to draw them up are invalid.
For instance, in R. v. Divers (1999), parts of The Crime (Sentences) Act 1997 (Commencement No.2 and Transitional Provisions Order) 1997 were declared invalid. The Order was made following a part of the Crime (Sentences) Act 1997, which allowed the Home Secretary to make transitional provisions. Still, it did not empower the Secretary of State to amend the text of an Act, in this case the 1967 Criminal Justice Act, in the way the Order sought to do. The Court of Appeal found that 'these were no transitional provisions or savings, and the amendment should have been made by Parliament'. The Secretary of State was therefore acting beyond his authority, and the amendment of the text of the Act by a commencement order was ultra vires and ineffective.7
Historical Aspect:
While the term was fixed in 1946, the phenomenon of delegated legislation is much older.
The classical theory of the separation of powers illustrates that parliaments are typically entrusted with legislative functions. This principle is embedded in most contemporary democratic constitutions, whether presidential or parliamentary, and across both civil law and common law countries. Since the early 20th century, however, parliaments have increasingly delegated lawmaking powers to the executive. This trend is driven by factors such as the growing complexity of legislation, the need to address highly technical issues, and an expansion of the regulatory demands of larger administrative systems.8
The common argument in favor of delegation in the nineteenth century, which authorities, such as Dicey, subscribed to, was that Parliament could not be expected to get involved in the level of detail required for the regulation of the services of the modern state.9
Similarly, for Edward Hallett Carr, “Legislators in Parliament could hardly be asked to devote their attention to the amount of the pauper's butter ration or the length, width, and material of the old woman's under-petticoats, and yet on such details the successful management of the whole scheme would depend.”10
In the Context of Nepal,
To this date, Nepal lacks adept, distinguished laws and provisions regarding delegated legislation, but it is indeed in practice.
Until 1950–1951, there were no provisions regarding the separation of powers, as all the power was vested in the King or the Prime Minister of the state. Only after the revolution, the Interim Government of Nepal Act (1951), did the concept of delegated legislation emerge.
Similarly, in the constitution of 1990, a fundamental change in delegated legislation was observed as the Supreme Court was given the ultimate power of judicial review. Furthermore, the Supreme Court possesses the authority to determine the constitutionality of acts drafted by parliament, and it also decides whether delegated legislation exceeds the scope of authority granted by its parent act or not.
For instance, a petitioner contested the Cabinet Secretariat’s power to regulate retirement provisions through delegated legislation.
The Supreme Court found that the Police Act (1955) lacked explicit provisions on retirement and emphasized that fundamental aspects of police administration, such as appointments, qualifications, pensions, and retirement, must be set out directly in the act itself rather than left to subordinate legislation. The Court noted that this is essential to ensure legal clarity, legal certainty, and effective implementation. As a result, the Court ordered a legislative review of the Police Act to incorporate clear and comprehensive provisions on these matters.11
Similarly, in Madan Bahadur Khadka v Cabinet Secretariat (2012), it ruled that delegated legislation must not restrict the rights and powers granted by primary laws. In other cases, it has declared that matters such as qualifications, retirement, and pensions are substantive and should be governed by the parent act, not by subordinate rules. The judiciary has thus drawn a clear line between substantive law requiring parliamentary approval and procedural or technical regulation permissible under delegated authority. In particular, the Supreme Court has assumed a prominent role in shaping legislative–executive relations and in rights adjudication.12
The Constitution of Nepal (2015) does not provide specifically for the regulation of delegated legislation. However, Article 82, alongside Articles 104, 194, and 218, empowers the Cabinet, federal and provincial legislatures, and local government regarding delegated legislation.
The Legislation Act, 2024 (विधायन सम्बन्धमा व्यवस्था गर्न बनेको ऐन) is a significant development concerning laws of delegated legislation in Nepal. It has thoroughly defined delegated legislation, such as rules, directives, orders, and so on. Furthermore, it provides factors to consider, limitations, while drafting the delegated legislation, respectively, from sec. 13-20.
The increasing influence of delegated legislation in Nepal can be observed through,
As per Section 79 of the Nepal Rastriya Bank Act 2058, the delegated legislation, NRB Unified Directives (एकीकृत निर्देशन), has been issued by the Nepal Rastriya Bank annually and is legally binding on all banks and financial institutions. Similarly, according to Sec 35 of the Nepal Electricity Authority Act, 2041, the Nepal Electricity Authority has enacted the Electricity Distribution Regulations, 2078, which governs billing lines and grid management.
Furthermore, as per Sections 61 and 62 of the Telecommunications Act, 2053, the Nepal Telecom Authority has issued NTA Telecommunication Regulations, the guidelines which ISP and telecom companies are required to comply with regarding bandwidth allocation and service quality.
Under Sec 34 of the Tribhuvan University Act, 2049, Tribhuvan University enacted the Tribhuvan University Rules relating to Organization and Academic Administration 2050, which govern the criteria that need to be fulfilled by private colleges for affiliation, the appointment process for professors, and the campus chief.
Today, approximately 350 acts are in force at the federal level, along with around 320 secondary legal instruments issued by the government, judiciary, and constitutional bodies. These figures exclude regulations by public enterprises, universities, and autonomous institutions. Seven provincial assemblies have enacted roughly 450 statutes, many of which authorize delegated legislation. The extent of primary laws and delegated legislation passed by the 753 local government bodies is not known, suggesting that the total volume of primary and secondary legislation exceeds by far what is officially recorded.13
Despite these provisions, Nepal lacks a foundational law in the form of a delegated legislation act for standardizing the process.
Furthermore, there are recurring problems identified regarding the content and process of delegated legislation in Nepal, the tendency by the executive to exceed its mandates, the trend for over-delegation by Parliament, which has often delegated legislative powers too broadly or vaguely, without limitations or guiding standards, and there is a poor record-keeping on the amount of delegated legislation such as the Ministry of Law, Justice, and Parliamentary Affairs does not maintain comprehensive records of delegated legislation. These gaps weaken transparency, legal certainty, and parliamentary oversight.14
The growth of the regulatory power of nonstate organizations highlights the public/private governance line. Once understood as segregated objects of laws and put into governance ghettos whose borders were strictly controlled by the state, nonstate entities are now assuming governance roles well beyond the comprehension of theoretical constructs of even a generation ago. It suggests the reconstitution of governance away from a linear, hierarchical, monopolistic exercise, in which only one sovereign could occupy a geographic space at a time. In its place, functionally differentiated governance systems have emerged, converging within dynamic governance networks of private and public power.15
References
[1]
Sociology.Institute (2025/8/26). Governance Explained: Beyond Government in Political Sociology. Available at: https://sociology.institute/political-sociology/governance-beyond-government-political-sociology/#
[2]
Sociology.Institute (2025/8/26). Governance Explained: Beyond Government in Political Sociology. Available at: https://sociology.institute/political-sociology/governance-beyond-government-political-sociology/#how-the-undp-and-world-bank-define-governance
[3]
Sociology.Institute (2025/8/26). Governance Explained: Beyond Government in Political Sociology, Available at: https://sociology.institute/political-sociology/governance-beyond-government-political-sociology/#how-the-undp-and-world-bank-define-governance
[4]
Sociology.Institute (2025/8/26). Governance Explained: Beyond Government in Political Sociology. Available at: https://sociology.institute/political-sociology/governance-beyond-government-political-sociology/#
[5]
Börzel, Tanja A. 2010: Governance with/out Government. False Promises or Flawed Premises? SFB-Governance Working Paper Series, No. 23, Research Center (SFB) 700, Berlin, March 2010.
[6]
Edward C Page (2001). Governing by Numbers Delegated Legislation and Everyday Policy-Making. Hart publishing.
[13]
Nicola Lupo (2026/2/24) The Role of Parliament in Delegated Legislation: Principles for Safeguarding Legislative Transparency and Democratic Accountability. International idea. Available at: https://www.idea.int/publications/catalogue/role-parliament-delegated-legislation-principles-safeguarding-legislative
About the Authors
Sadikshya Pradhananga
A detail-oriented, highly motivated law student at Kathmandu School of Law interested in business law, legal research, dispute resolution, and insurance. Experienced in moot courts, conferences, leadership programs, and community engagement activities.
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Raunak Das Shrestha
Law student at KSL majoring in business law highly interested in corporate law as a whole.
View all posts by Raunak Das Shrestha