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Dr.

Ram Manohar Lohiya National


Law University Lucknow

Administrative law

On

Constitutionality of Delegated legislation

Submitted to: Submitted by:

Dr. Manoj Kumar Shikhar Singh Negi

Asst. Professor, Law B.A.LL.B. (Hons) VIth sem

R.M.L.N.L.U., Lucknow Roll. No.-124

ACKNOWLEDGEMENT

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The Project in Administrative law on the topic, constitutionality of delegated legislation
has been given shape and success by the effort of a lot of people who has contributed in its
completion.

I express my humble thanks to Dr. Manoj Kumar, my subject teacher of Administrative law,
under whose supervision the whole project has been made and without whose teachings and
insights on this case, this project could not have been fructified.

I also extend my heartiest thanks to my seniors for their insights into the concerned final
draft of the project and helping with me with everything I asked them. The role of the Library
Department is also noteworthy. All the staff members helped me generously in getting the
materials and information I needed to complete this project.

CONTENTS

TOPIC COVERED PAGE NO.

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Introduction 04
Conditional legislation 05
Reasons for delegated legislation 06
Position under constitution 07
Kinds of delegated legislation 08
Modes of control over delegated legislation 10
Conclusion 15
Bibliography 15

INTRODUCTION

Delegated legislation is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the legislature's
authority.

Often, a legislature passes statutes that set out broad outlines and principles, and delegates
authority to an executive branch official to issue delegated legislation that flesh out the details
(substantive regulations) and provide procedures for implementing the substantive provisions of
the statute and substantive regulations (procedural regulations). Delegated legislation can also be

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changed faster than primary legislation so legislatures can delegate issues that may need to be
fine-tuned through experience1

Blacks Law Dictionary defines Delegation as the act of entrusting another with authority
or empowering another to act as an agent or representative. The Dictionary further defines
Doctrine of Delegation as: The Principle (based on the Separation of Powers Concept)
limiting Legislatures ability to transfer its legislative power to another Governmental Branch,
especially the Executive Branch.

According to Sir John Salmond, "Subordinate legislation is that which proceeds from any
authority other than the sovereign power and is, therefore, dependent for its continued existence
and validity on some superior or supreme authority."

As, the Supreme Court has time and again held that, power to legislate carries within it the
power to delegate. Excessive delegation may amount to abdication. So, rule-making power can
be transferred.2 If policy is laid down in the legislation delegating power to the govt. it cant be
said to be arbitrary or excessive. Accountability of state govt. to the state legislatures is an
additional check against arbitrary exercise of power.3

The fundamental legal question that arises in a study of delegated legislation is whether a
legislature can delegate its law-making power to other agencies. This question cannot be
answered without reference to the constitutional provisions of the country concerned.

Difference between Conditional Legislation and Delegated Legislation

Conditional Legislation Such Legislation is usually complete in itself but its operation is
made to depend on fulfillment of certain conditions and what is delegated to an outside authority,
is the power to determine according to its own judgment whether those conditions are fulfilled.

1 http://www.grkarelawlibrary.yolasite.com

2 Registrar of property societies v kunjambu, AIR 1960 SC 350

3 Quarry Owners Association v The State Of Bihar & Ors, AIR 2000 SC 2870

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Thus Conditional Legislation contains no element of delegation of legislative power and is,
therefore, not open to attack on the ground of Excessive Delegation.

Delegated Legislation In such cases, some portion of the Legislative Power of the Legislature
is delegated to the outside authority in that, the Legislature, though competent to perform both
the Essential and Ancillary Legislative Functions, performs only the former and parts with the
latter.

Thus Delegated Legislation confers some legislative power on some legislative authority and is
therefore open to attack on the ground of Excessive Delegation.

However, even though Conditional Legislation is distinguishable from Delegated Legislation,


still it has been held to be a subset of Delegated Legislation. The Court has observed that it has
content howsoever small and restricted of the law making power itself.4

Reasons for Delegated Legislation

Basically there are several general reasons of subsidiary or delegated legislation like to
economize the legislative time, lack of expertise and specialist, there is an urgent need
of response by the state and this method is said to be more flexible and elastic. The primary
factors for the phenomenal popularity of delegating legislation are that modern governments are
multifunctional and modern legislatures work under severe limitations. The legislature has to
delegate its law-making power for the following reasons:

(i) The legislature has insufficient time to enact all the legislation, detailed in every
aspect, required in a modern society;
(ii) Much modern legislation is highly technical and is best left to experts or
administrators on the job who are well versed with the technicalities involved; and
(iii) The legislature is not continuously in session and its legislative procedures are
burdensome.

4 www.lawteacher.com

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POSITION UNDER CONSTITUTION

The Legislature is quite competent to delegate to other authorities. In, DS Gerewal v. The
State of Punjab5 , K.N. Wanchoo, the then justice of the Hon'ble Supreme Court dealt in detail
the powers of delegated legislation under the Article 312 of Indian Constitution. He observed:
"There is nothing in the words of Article 312 which takes away the usual power of delegation,
which ordinarily resides in the legislature. The words "Parliament may by law provide" in Article
312 should not be read to mean that there is no scope for delegation in law made under Article
312."

In the England, the parliament being supreme can delegate any amount of powers because
there is no restriction. On the other hand in America, like India, the Congress does not possess
uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans 6, the
supreme court of the United States had held that the Congress can delegate legislative powers to
the Executive subject to the condition that it lays down the policies and establishes standards
while leaving to the administrative authorities the making of subordinate rules within the
prescribed limits.7 Article 13(3) defines law and it Includes ordinance, order, byelaw, rule,
regulation & notification having the force of law. In Sikkim v. Surendra Sharma 8- it is held that
All Laws in force in sub clause (k) of Art. 371 F includes subordinate legislation. Salmond
defines law as that which proceeds from any authority other than the Sovereign power & is
therefore, dependent for its continued existence & validity on some superior or supreme
authority.

Kinds of delegated legislation:

1) Normal delegation:

5 1970) 72 PLR 657

6 293 U.S. 388 (1935)

7 http://aclawresearch.blogspot.in/2012/12/development-of-delegated-legislation-in.html

8 (1994) 5 SCC 282

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a) Positive delegation: where the limits of dl are clearly defined in the enabling act as to
be made plainly known to parliament, to executive and public and to be readily
enforceable by the judiciary
b) Negative delegation: where parliament has clearly laid down as to what cant be
delegated. i.e. legislate on matters of policy
2) Exceptional delegation: instances of exceptional delegation may be:
a. Instances of powers to legislate on matters of principle and even to impose
taxation.
b. Instances of powers to amend acts of parliament, either the act by which the
powers are delegated or other acts.
c. Instances of power conferring such a wide discretion that it is almost impossible
to know the limits.
d. Instances where parliament confers the power to make rules without being
challenged in a court of law.

3) Henry VIII Clause:

Under this clause, very wide powers are given to administrative agencies to make rules
including the powers to amend and repeal. Under Art. 372 (2) of the Indian Constitution,
the President has been delegated the power to adapt, amend, and repeal any law in force
to bring it in line with the provision of the constitution and the exercise of such power has
been made immune from the scrutiny of courts.

In W.B. State Electricity Board v. Desh Bandhu Gosh9 It was held that Regulation 34 of
the West Bengal State Electricity Regulation which had authorized the Board to terminate
the Service of any permanent employer in three months-notice or pay in lieu thereof. This
hire & fire rules of regulation 34 is parallel to Henry VIII clause.

4) Excluding judicial control

Modes of control over delegated legislation

9 (1958) 3 SCC 116

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The practice of conferring legislative powers upon administrative authorities though beneficial
and necessary is also dangerous because of the possibility of abuse of powers and other attendant
evils. There is consensus of opinion that proper precautions must be taken for ensuring proper
exercise of such powers. Wider discretion is most likely to result in arbitrariness. The exercise of
delegated legislative powers must be properly circumscribed and vigilantly scrutinized by the
Court and Legislature is not by itself enough to ensure the advantage of the practice or to avoid
the danger of its misuse. For the reason, there are certain other methods of control emerging in
this field. The control of delegated legislation may be one or more of the following types: -

1) Procedural;

2) Parliamentary; and

3) Judicial

Procedural Control Over Delegated Legislation

(A) Prior consultation of interests likely to be affected by proposed delegated10


Legislation From the citizen's post of view the must beneficial safeguard against the dangers of
the misuse of delegated Legislation is the development of a procedure to be followed by the
delegates while formulating rules and regulations. In England as in America the Legislature
while delegating powers abstains from laying down elaborate procedure to be followed by the
delegates. But certain acts do however provide for the consultation of interested bodies. and
sometimes of certain Advisory Committees which must be consulted before the formulation and
application of rules and regulations. This method has largely been developed by the
administration independent of statute or requirements. The object is to ensure the participation of
affected interests so as to avoid various possible hardships. The method of consultation has the

10 www.legalservices.com

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dual merits of providing as opportunity to the affected interests to present their own case and to
enable the administration to have a first-hand idea of the problems and conditions of the field in
which delegated legislation is being contemplated.

(B) Prior publicity of proposed rules and regulations Another method is antecedent publicity
of statutory rules to inform those likely to be affected by the proposed rules and regulations so as
to enable them to make representation for consideration of the rule-making authority. The rules
of Publication Act, 1893, S.I. provided for the use of this method. The Act provided that notice of
proposed 'statutory rules' is given and the representations of suggestions by interested bodies be
considered and acted upon if proper. But the Statutory Instruments Act, 1946 omitted this
practice in spite of the omission, the Committee on Ministers Powers 1932, emphasized the
advantages of such a practice.

(C) Publication of Delegated Legislation - Adequate publicity of delegated legislation is


absolutely necessary to ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come as a surprise and should not
consequently bring hardships which would naturally result from such practice. If the law is not
known a person cannot regulate his affairs to avoid a conflict with them and to avoid losses. The
importance of these laws is realized in all countries and legislative enactments provide for
adequate publicity.

JUDICIAL CONTROL
The delegated legislation does not go beyond the reach of the judicial review of the Supreme
Court and of the High Courts. Judiciary exercises effective control over delegated legislation in
India. The validity of delegated legislation can be examined by the courts on several grounds.
In India the invalidity of delegated legislation may arise from any of the following reasons :
(1) The enabling Act or delegating statute being unconstitutional.
(2) The subordinate legislation violating the Constitution.
(3) The subordinate legislation being ultra vires the delegating Act.

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In the control-mechanism, judicial control has emerged as the most outstanding controlling
measure. Judicial control over delegated legislation is exercised by applying two tests :
Substantive ultra vires; and
Procedural ultra vires.

First Mode : Judicial Control.Where the enabling Act or some of its provisions, under which
delegated legislation is provided, are in contravention of the Constitution, the court would
declare the Act or its provisions, as the case may be, ultra vires.
A law will be ultra vires if it violates a constitutional provision. Where the law is
unconstitutional on any of the grounds it is devoid of any effect and is unenforceable. It is now
settled that there is a limit beyond which delegation may not go. The limit is that essential
legislative power, which consists in the determination or choice of the legislative policy and
formally enacting that policy into a binding rule of conduct, cannot be delegated. The
Legislature, thus, cannot delegate its functions of laying down legislative policy to an outside
authority. A law may, therefore, be challenged on the ground that in making delegation of power
it has transgressed the permissible limits. Thus in re Delhi Laws Act case,11 the majority of the
Judges held the exercise of delegated law-making power invalid because the enabling Act
exceeded the constitutional limits in permitting the Executive to repeal a law existing in the area.
Sometimes certain provisions in an Act may be unconstitutional because of excessive delegation,
i.e., delegation without prescribing any standards, limits or boundary. For instance, in Hamdard
Dawakhana v. Union of India,12 Section 3(d) of the Drugs and Magic Remedies (Objectionable
Advertisement) Act was declared ultra vires. The whole Act was not struck down, because the
other provisions were found to be good law. The Court held that the words used in Section 3(d)
do not lay down any certain criteria or proper standard and surrender unguided and uncanalised
power to the Executive. There must be definite boundaries within which the powers of
administrative authority are exercisable. Delegation should not be so indefinite as to amount to
any abdication of the legislative function.

Second Mode: Judicial Control

11 AIR 1951 SC 347.

12 AIR 1960 SC 554.

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The second mode for judicial review comes into play where the delegated legislation violates the
provisions of the Constitution or any of the fundamental rights given thereunder. In all the
countries having written Constitution13 this mode of control is taken very seriously; whereas in
the United Kingdom there is no fundamental law or a written Constitution to which act of
Legislature should conform.
The well-known case of M/s. Dwarka Pd. v. State of U.P,14 is an instance of subordinate
legislation being in conflict with Constitution and hence was ultra vires. In this case clause 3(1)
of U.P. Coal Control Order, 1953 was held ultra vires because it gave unrestricted power to the
State Controller to make exceptions and even if he acted arbitrarily there was no check over him
and no redress was available against it. The Court held that it is violative of Article 19(1 )(g) and
could not be justified as a reasonable restriction under clause (6) of the same Article.

In Lakshman v. State of M.P.,15 the Supreme Court struck down a notification issued under the
M.P. Grazing Rules made under the Forest Act, 1927. The rules prescribed excessive and
prohibitive rates of charges and a very limited period for grazing of 'foreign cattle'. Foreign
cattle meant cattle of persons not resident of M.P. Normally such cattle pass through several
States. The Notification was held to be bad as being violative of Articles 14, 19(l)(e), 19(l)(g)
and Article 301 of the Constitution.

Third Mode: Judicial Control


In all circumstances the power of delegated legislations should be exercised within the scope of
the rule-making power provided in the statute. The Supreme Court recently in Kerala State
Electricity Board v. Indian Aluminium Co.,16 laid down that notwithstanding the subordinate
legislation being laid on the Table of the House of Parliament or the State Legislature and being
subject to such modification, annulment or amendment as they may make, the subordinate
legislation cannot be said to be valid unless it is within the scope of the rule-making power
provided in the statute.

13 In U.S.A., South Africa, Canada, Australia.


14 AIR 1954 SC 224

15 (1983) 3 SCC 275.

16 AIR 1976 SC 1031 at 1040.

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In Dwarkanath v. Municipal Corp.,17 Section 23(1) of the Prevention of Food Adulteration Act,
1954, authorized the Central Government to make rules for restricting the packing and labelling
of any article of food, with a view to preventing the public from being deceived or misled as to
quantity or quality of the article. Rule 32 framed there under by the Government provided that
there would be specified on every label name and business address of the manufacturer, as also
batch number or code number in Hindi or English. The appellant, the manufacturers of Mohan
Ghee sold in tins labelled Mohan Ghee Laboratories, Delhi5 challenged Rule 32 as beyond the
power of the Government conferred under Section 23(1) of the Act, 1954. They contended that
the requirement of address under Rule 32 was in excess of the power conferred, which was
restricted to "quantity and quality" only. Accepting the contention of the appellants, the
Supreme Court held Rule 32 ultra vires the as it was beyond the power conferred on the
Government.

In Radhakrishna v. State of M.P 18 the rules were directed to be made by the State Government
with the occurrence of the Central Government but the rules were made without such
concurrence of the Central Government. The rules were held to be invalid

EXCESSIVE DELEGATION IS UNCONSTITUTIONAL


It is now firmly established that excessive delegation of legislative power is unconstitutional.
The legislature must first discharge its essential administrative function and ten can delegate
ancillary or subordinate legislative functions which are generally termed as power to fill up
details. After laying down policy and guidelines, the legislature may confer discretion on
administrative agencies to execute the legislative policy and work out the details within the
policy of framework and guidelines.

Whether a particular suffers from excessive delegation is a question to be decided with


reference to certain factors which may include 1) Subject matter of Law, 2) provisions of statute

17 AIR 1971 SC 1844

18 AIR 1952 Nag 467

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including its preamble, 3) scheme of the law, and 4) factual and circumstantial background in
which the law is enacted.

When a statute is challenged on the ground of excessive delegation, there is presumption in


delegation of its vires and if two interpretation is possible, one that makes it constitutional would
be adopted.

Rajnarain Singh v Patna Admn. Committee19

Section 3(1)(f) of the Patna Administration Act of 1915 empowered the Patna Administration to
select any provision of the Bengal Municipality Act, 1884 and apply it to Patna area with such
restrictions and modifications as the government think fit. The government picked section 104
and after modification applied it to the town of Patna. The Supreme Court declared the
delegation ultra vires on the ground that the power to pick out a section for application to another
area amounts to delegating the power to change the policy of the act, which is an essential
legislative power, and hence cannot be delegated.

Harishankar Bagla v State of M.P.20

Section 3 of the essential supplies (temporary powers) Act, 1946 authorised the central
government to frame rules for the purpose of maintaining or increasing supplies of essential
commodities and for securing equitable distribution at fair price. Section 6 further provided that
the orders made under shall have effect notwithstanding anything contained in any law for the
being in force. The supreme court held the delegation valid on the ground that section 3 lays
down the legislative policy with sufficient clarity within which the government can operate. The
court also upheld the validity of section 6 on the ground that it is not a delegation of power to
repeal but only an attempt to bypass difficulty.

Hamdarad Dawakhana v Union of India21

Parliament passed the Drugs and Magic remedies (Objectionable advertisements) Act, 1954 to
check the mischief done on the innocent patients suffering from incurable diseases through
19 AIR 1954 SC 569

20 AIR 1954 SC 465

21 AIR 1960 SC 554

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advertisements claiming magic remedies for such diseases. Section 3 laid down a list of diseases
for which advertisements were prohibited and authorized the central government to include any
such disease in the list. This is the first case in which the Supreme Court struck down an Act on
the ground of excessive delegation of legislative work. Court held that nowhere the legislature
has laid down any policy for guidance to the government in the matter of selection of diseases
for being included in the list. The decision of the court is certainly not in line with the earlier
approaches because the clear mention of certain diseases in list could be supplied the standard
and criteria for the selection of other diseases. Furthermore, the title of the Act lays down
sufficiently the policy of the Act.

CONCLUSION

Generally speaking, any ground on which judicial review may be justified can logically be
classified as a branch of ultra vires doctrine22; here we have dealt with straight forward cases
where ultra vires was the solitary or principal justification for judicial review.

On the whole, judicial review of delegated legislation is more of symbolic value rather than of
much practical value as a control mechanism over delegated legislation. To make judicial
control more efficacious it is necessary that delegating legislation does not confer power in two
broad and generalized language. In such a case the Court may find extremely difficult to hold a
rule as falling outside the scope of power delegated. This is what is envisaged by the doctrine of
excessive delegation. In that case, delegated legislation will be ultra vires if it goes beyond
basic policy underlying the Parent Act passed by the legislature.

Bibliography

1 Administrative Law by I.P. Massey, 8th edition, Eastern Book Company.


2 Principles of Administrative Law by M.P. Jain and S.N.Jain,5 th edition, Wadhwa
Nagpur.
3 Administrative Law by H.W.R. Wade and C.F.Forsyth,9 th edition, Oxford University
Press.
22 Garner, Administrative Law, 125 (3rd Ed.);

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4 Michigan Law Review, Vol. 48,1950.

Web Sources

1 www.legalserviceindia.com
2 www.grkarelawlibrary.yolasite.com
3 www.manupatra.com/roundup
4 www.desikanoon.co.in
5 www.lawnotes.in
6 www.lawteacher.net

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