Authored By: Pranav Mangesh Deshmukh
Dr Ambedkar Law College Wadala Mumbai
Introduction
Statutes alone are rarely enough to achieve their goals. Modern legislatures face structural and institutional constraints in terms of technical knowledge, time, and foresight, so they are often compelled to pass broad framework laws that delegate rule-making power to specialized agencies in specific legal fields. However, the very existence of such statutes gives rise to a constitutional issue. Does administrative law-making, whether through executive orders or delegated legislation, inherently undermine the separation of powers and, consequently, continuous democratic accountability?
This paper aims to explore the executive’s role in preserving continuous democratic accountability, both when implementing statutes and when making laws directly. While analytical positivism views executive discretion as merely an extension of the original legislative authority, legal realism, public choice theory, and structural constitutionalism each offer theoretical reasons to argue that such discretion inherently distorts democratic accountability.
This paper contends that continuous democratic accountability is neither guaranteed by the mere structural existence of administrative law-making nor completely assumed by executive discretion; instead, it is maintained through institutional balance.
Analytical Positivism: The Normative Basis for Delegated Execution
The analytical positivist school, particularly advanced by John Austin, John Stuart Mill, and Hans Kelsen, holds that law is a hierarchy of norms, each deriving its validity from a higher rule, up to a “Grundnorm”. Within this framework, the separation of powers does not necessarily impede democratic accountability. When a legislature grants the executive the authority to issue subordinate legal rules, those rules derive their validity not from the executive itself, but from the higher legislation that authorizes the executive action. In essence, when the legislature enacts a primary framework statute empowering the executive to create subordinate legislation, every rule issued by the executive holds legal force solely because of the original statute.
Consequently, under positivism, executive discretion does not interfere with continuous democratic accountability in the following ways:
It ensures the very operation of legislation itself
In most parliamentary systems, the legislative process is deliberately intermittent and spread over lengthy periods, and laws require extensive debate and revision, especially as society becomes more complex. If statutes were limited to general directives issued directly by the legislature, as analytical positivism suggests, they would need to be far broader and more flexible, but this would sacrifice detail and responsiveness to the needs of a modern economy or society. In contrast, the ability to delegate rule-making authority to the executive allows the legislature to pass more detailed and specific statutes without facing the challenges posed by the separation of powers.
It guarantees an uninterrupted chain of responsibility
In presidential systems, and also in parliamentary systems where the head of state is elected, the executive is directly accountable to the people. In such frameworks, the chain of responsibility connecting law to the public stays unbroken, even though it operates indirectly. Under positivism, the accountability chain remains unbroken as long as the legislature passes a law that explicitly grants rule-making authority to a responsible executive. All levels of law, from primary statutes to secondary delegated rules, derive their validity from a direct legal source, preserving the link between law and the people.
It preserves formal validity through ultra vires
Positivism upholds the formal validity of laws through the doctrine of ultra vires. Any executive action that exceeds the explicit terms and limits of a primary statute is void from the outset. Indian positivist scholars like Wade and Forsyth argue that while the legislature can delegate limited or conditional legislative powers to the executive for subordinate rule-making, it cannot surrender its “essential legislative powers”. Thus, formal validity is maintained as long as subordinate legislation stays within the bounds of the primary statute.
Operational Realism: Agency Drift, Democratic Deficit, and the Capture of Law-Making
Although positivism ensures continuous democratic accountability through a strict separation of powers and formal validity, realism, public choice theory, and structural constitutionalism offer a far more pessimistic perspective. Critics of administrative law-making argue that when the legislature grants broad powers to the executive for subordinate legislation, it gives up part of its sovereignty to administrative bodies that lack both democratic legitimacy and accountability. The separation of powers, when applied to law-making, becomes a source of democratic deficit.
The emergence of this deficit can be outlined as follows:
[Primary legislation passed by legislature]─[broad bureaucratic delegation]─[subsequent capture by special interests]─[overreach by administrative agencies]
Expansion of the administrative state and democratic deficit
Legal realists like Roscoe Pound, and to some extent public choice theorists such as George Stigler, believe that administrative agencies naturally seek to expand their power at the expense of the legislature and the public. In most modern systems, statutes are largely written by bureaucrats rather than legislators or elected officials, and when these agencies receive broad discretionary authority from the legislature, they tend to produce increasingly expansive subordinate legislation.
Consequently, when statutes originate not from democratically accountable legislatures but from state agencies with limited accountability and no direct or routine answerability to the public, law-making becomes undemocratic and suffers a democratic deficit.
Agency capture, special interests, and democratic deficit
Public choice theory also contends that administrative agencies are particularly prone to being captured by special interest groups. This susceptibility arises from the natural tendency of organizations to prioritize their own interests over those of others. Unlike statutes enacted by legislatures, which face public scrutiny, debate, media attention, and pressure from interest groups, administrative rules are largely shielded from such oversight.
As Stigler suggested in his theory of regulation, firms and industries seeking to influence regulation find it more efficient to invest in capturing regulators, who are few and relatively accessible, rather than attempting to overhaul the entire legislative process. During rule making, these firms and agencies can exploit their influence to take control of regulators and shape laws and regulations to their benefit.
Executive overreach, Chevron deference, and the subversion of statutes
In presidential systems, especially during legislative deadlock, the executive may be tempted to use its limited law-making powers to expand its authority without the legislature’s checks and balances. Through executive orders or other administrative guidance, the executive can bypass legislative authority or statutory interpretation and effectively enact laws directly.
This was especially common in the US with the regulatory state, where decades of legislative and judicial precedent allowed agencies to engage in “rule making” and effectively issue binding legislative instruments. Under doctrines like Chevron deference, ambiguous statutes were interpreted to broaden agency authority, enabling them to avoid legislative and judicial review. However, after the recent ruling in Loper Bright Enterprises v. Raimondo, the new Supreme Court has determined that Chevron deference is formally unconstitutional, so agencies can no longer exceed the explicit language of statutes. Indian administrative law has similar doctrines, such as the ruling in Tamil Nadu v. Krishnamurthy.
Theoretical Synthesis: Continuous Democratic Accountability and Institutional Equilibrium
To a considerable extent, positivism and realism are two viewpoints on the same issue. Administrative law-making by itself neither guarantees nor necessarily threatens continuous democratic accountability; instead, it is a tool that can preserve or undermine it, depending on institutional checks and balances. To sustain continuous democratic accountability, a constitutional democracy must impose certain structural limits on administrative law-making. Regarding continuous democratic accountability, these limits take three main forms: procedural transparency, parliamentary control, and judicial oversight.
Comparative Jurisprudential Framework
Dimension Analytical Positivism Legal Realism Theoretical Synthesis
View of Executive Power | Faithful legal execution of statutory mandates. .[^26] | Autonomous policy making driven by bureaucratic incentives. .[^27] | Dynamic, discretionary authority requiring institutional discipline. .[^28] |
Source of Accountability | Formal delegation and legal hierarchy (Grundnorm). .[^29] | Direct political incentives and voter feedback. .[^30] | Procedural transparency, active legislative oversight, and judicial review. .[^31] |
Primary Vulnerability | Over-reliance on formal legal limits (ultra vires). .[^31] | Tendency toward cynicism regarding statutory authority. .[^33] | Risk of systemic imbalance if constitutional checks weaken. .[^34] |
Notice-and-comment procedural transparency
To a large extent, the problem of democratic deficit and policy capture emerges precisely from the fact that administrative agencies operate largely in secrecy. Most statutes passed by legislatures are subjected to extensive procedural transparency, including time for debate, voting procedures, as well as press coverage and public comment. However, when agencies issue rules and regulations, they rarely face the same level of scrutiny. Thus, an initial move toward ensuring ongoing democratic accountability is to apply the same transparency standards to administrative law-making that legislatures typically impose on themselves.
In the US, such transparency is partly enforced through the procedural requirements of the 1946 Administrative Procedure Act. Section 553 of the Act requires agencies to publish proposed rules in the Federal Register, allow for notice and comment, and publish a final rule with responses to comments after review and finalization. Procedural transparency thus ensures that the flexibility and discretion of agencies are subject to public scrutiny and that rule-making decisions include public input.
Parliamentary control mechanisms
When legislatures pass primary statutes that grant the executive the power to create subordinate rules, they must maintain certain control mechanisms to prevent the separation of powers from becoming administrative autonomy. This can be achieved through parliamentary control mechanisms such as committees that scrutinize subordinate legislation, laying procedures (where passed regulations must be presented to the legislature), sunset clauses, and budget control.
Most notably, as the UK Supreme Court held in R v. Secretary of State for the Home Department, ex parte Fire Brigades Union, the executive cannot use prerogative powers to undermine or obstruct statutes passed by the legislature. Similarly, Indian statutes such as the Statutory Instruments Act of 1946 enable legislatures to place limits on agency rule-making and to require parliamentary approval for such rules.
Judicial review as the ultimate check on administrative power
Even when statutes undergo procedural transparency and parliamentary approval, they still require judicial review to ensure they do not exceed the scope of the primary legislation or violate rights, freedoms, or natural justice. In the US, for instance, the Administrative Procedure Act of 1946 not only demands procedural transparency for administrative rules but also permits judicial review and intervention if such rules are deemed “arbitrary or capricious” or otherwise violate the Act. Similar principles apply in Indian law, as seen in Agricultural Market Committee v. Shalimar Chemical Works Ltd., where the Supreme Court determined that those delegated rule-making power cannot exceed the Act’s terms, and any such rule is ultra vires and thus invalid.
Under this theoretical synthesis, democratic accountability is not a binary state but a dynamic process. Through the separation of powers, legislatures retain general rule-making authority, while the executive has limited rule-making powers and broad discretion and flexibility in executing statutes. However, for this flexibility and discretion not to erode the democratic legitimacy of the government, they must be subject to procedural transparency, parliamentary control, and judicial review.
Conclusion
The executive’s role in continuous democratic accountability is one of the most complex questions in administrative law. Analytical positivism provides the theoretical basis for the separation of powers model, where the executive is empowered to execute statutes but is strictly constrained in its rule-making capacity to ensure ongoing democratic accountability. At the same time, realism, public choice theory, and structural constitutionalism all indicate that such accountability is far from assured in actual practice. The discretionary flexibility that the separation of powers grants to the executive naturally tends to be vulnerable to policy capture and the growth of administrative authority beyond its intended scope.
However, if such terms are carefully defined and exposed to procedural transparency, parliamentary oversight, and judicial review, executive accountability can be preserved without weakening legislative or judicial powers. Thus, ongoing democratic accountability is not automatic but rather emerges from a carefully maintained institutional equilibrium.
Footnote(S):
[1]: See H.W.R. Wade & C.F. Forsyth, Administrative Law 18-25 (11th ed. 2014).
[2]: See M.P. Jain & S.N. Jain, Principles of Administrative Law 35-42 (8th ed. 2017).
[3]: See Hans Kelsen, General Theory of Law and State 123-134 (Anders Wedberg trans., Harvard Univ. Press 1945).
[4]: See George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 4-6 (1971).
[5]: See John Austin, The Province of Jurisprudence Determined 18-32 (1832); H.L.A. Hart, The Concept of Law 91-99 (2d ed. 1994).
[6]: See Kelsen, supra note 3, at 128.
[7]: See Hans Kelsen, Pure Theory of Law 193-201 (Max Knight trans., Univ. of Cal. Press 1967) (1960).
[8]: See Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State, 90 Colum. L. Rev. 605, 612-620 (1990).
[9]: See Peter L. Strauss, Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 589-595 (1984).
[10]: See Hart, supra note 5, at 95-97.
[11]: See Wade & Forsyth, supra note 1, at 210-215.
[12]: In re Delhi Laws Act, 1912, AIR 1951 SC 332, 345-350 (India).
[13]: See Jain & Jain, supra note 2, at 58-62.
[14]: See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1682-1689 (1975).
[15]: See Stigler, supra note 4, at 8-11.
[16]: See David Kershaw, Company Law in Context 45-50 (2d ed. 2012).
[17]: See Stewart, supra note 14, at 1693-1700.
[18]: See Stigler, supra note 4, at 3-5.
[19]: See Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government, 101 Mich. L. Rev. 1, 25-30 (2002).
[20]: See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2272-2280 (2001).
[21]: See id. at 2281.
[22]: Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984).
[23]: Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2262-2266 (2024). [24]: State of T.N. v. P. Krishnamurthy, (2006) 4 S.C.C. 517, 523-526 (India).
[25]: See Strauss, supra note 9, at 600-605.
[26]: See Kelsen, supra note 7, at 195.
[27]: See Stigler, supra note 4, at 6.
[28]: See Stewart, supra note 14, at 1705.
[29]: See Kelsen, supra note 3, at 125.
[30]: See Stigler, supra note 4, at 7.
[31]: See Wade & Forsyth, supra note 1, at 30-35.
[32]: See id. at 212.
[33]: See Stewart, supra note 14, at 1685.
[34]: See Strauss, supra note 9, at 610.
[35]: See Administrative Procedure Act § 4, 5 U.S.C. § 553 (2018).
[36]: 5 U.S.C. § 553(b)-(c) (2018).
[37]: See Jain & Jain, supra note 2, at 115-125; Statutory Instruments Act 1946, 9 & 10 Geo. 6 c. 36, § 4 (UK).
[38]: R v. Sec’y of State for the Home Dep’t, ex parte Fire Brigades Union, [1995] 2 A.C. 513 (HL) 550-554 (appeal taken from Eng.).
[39]: See India Const. art. 13, cl. 3(a); id. art. 245.
[40]: Agric. Market Comm. v. Shalimar Chemical Works Ltd., (1997) 5 S.C.C. 516, 522-525 (India).
[41]: See Sunstein, supra note 8, at 630-635.
