1

(CHAPTER-I)

CONCEPTUAL DIMENSIONS DELEGATED LEGISLATION

Definition
As stated in the Halsbury’s Laws of England
“When an instrument of legislative nature is made by an authority in exercise of power
delegated or conferred by the legislature it is called “Subordinate legislation”

Prof Upendra Bakshi remarked–

“The situation in regard to delegated legislation, the volume of which is immensely greater
than that of usual legislation, is even more. The Indian parliament enacted from the period
1973 to 1977 a total of 302 laws; as against this total number of statutory orders and rules
passed in the same period was approx. 2544.”

Justice P.B Mukherjee very well observed in this respect;

“Delegated legislation is an expression which covers a multitude of confusion. It is an excuse
for the legislators, a shield for the administrators and a provocation to the constitutional
jurists. It is praised as a necessity and felt as inevitable in our world where social economic
technological psychological and administrative speed outstrips the spacious and placid
traditional legislative ideals and processes. It is criticized as an abdication od power by
legislators and an escape from the duty imposed on them by voters of democracy. In England
the king lost the legislative power at Runnymede and parliament lost legislative at stampede
that followed since to provide the government for the country through administration and
bureaucracy”

Prof. Wade and Phillips in their Book on Constitutional Law observed:

“The mass of deails involved in the modern administration and the extension of the functions
of the State to the economic and social sphere have rendered it essential for the Parliament to
delegate to the Ministers the power to make statutory instruments.”
 2

According to Prof. Cecill Carr–

“ Necessity of delegated legislation is so multitudinous that the statute book would not only
be incomplete but misleading unless it be read along with the delegated legislation which
amplifies and amend it.”

According to Oxford Dictionary of Politics–

“Delegated (or secondary legislation) is law made by misters under powers given to them by
parliamentary Act (primary legislation) in order to implement and administer the
requirements of the Act. It has equal effect in Law. Altough it can be challenged in courts on
the grounds that specific pieces of delegated legislation are not properly based on the powers
given by the Acts.”

Meaning

The Donoughmore Committee on the Minister’s powers pointed to the confusion of

terminology which was used in connections with delegated legislations in England. It is
known that variously as rules, regulation, instructions, general orders, circulars, notice,
memoranda, etc. are used to designate the different sets of delegated legislation from the
various government offices, without any clear distinction as to the meaning and its terms.

Delegated Legislation is known by various names such as: Administrative Law, or Rule
Making, Administrative Legislation, Subordinate Legislation or Quassi Legislation. It may be
defined as a body of law which is administrative by means of rules, regulations and orders
framed and promulgated by the government of some executive authority in pursuance of
power conferred on it by an act of legislature.1

The Committee on Minister’s Power has pointed out that the expression ‘delegated
legislation’ is used in two senses. In one sense delegated legislation means the exercise of the
power of rule making, delegated legislation to the executive by the legislature. In second
sense means the output of the exercise of that power, viz., rules, regulation, orders,
ordinances. The expression is used here in both senses. Where the emphasis is on the limits of

1
Prof.B.L.Fadia, Public Administration 869(Sahitya Bhawan, Agra, 14th edn.,2018).
 3

constitutionality of exercise of such power, the term is used in the first sense; where the
emphasis on the output of concrete rules the term is employed in the second sense.

The Committee on Minister’s powers defined it “as the exercise of minor legislative power
by subordinate authorities and bodies in pursuance of statutory authority given by the
Parliament itself”.
In simple words, delegated legislation is legislation by the authorities other than legislature.
The Central govt., The State govt., The central authorities like central board of direct taxes
and the other administrative bodies are given power to make rules for carrying out the
purposes of enacted statutes . The administrative bodies , although have no legislative
functions of their own still they exercise only the delegated authority. The situation today has
reached a point where delegated legislation outnumbers the legislative enactments. Professor
Upendra Baxi has rightly remarked in this connection ,“ ….the situation in regard to
delegated legislation, the volume of which is immensely greater than that of usual legislation,
is even more. The Indian Parliament enacted from the period 1973 to 1977 to a total of 302
laws; as against the total number of statutory orders and rules passed in the same period was
approximately 2544”

Delegated legislation is not to be confused with the executive legislation. The former stands
for the laws made by the authorities other than the legislature to whom the legislature
delegates is legislative power. The latter stands for the laws made by president and the
governors respectively under articles 123 and 213 of constitution . These laws are in the form
of ordinances, which have the force of law. The source of the delegated legislation is always
an act of the legislature whereas the source of the executive legislation is a constitutional
provision.2

Case Laws

1. Ishwar Singh vs. State of Rajasthan (2005)The supreme court held that to
delegate to another is not to denewed yourself. The word delegated implies that
powers are generally committed to another person or body which are subject to
assumption by the power delegated.
2
Id, p.870
 4

2. Huth vs. Clarke (1820) Q.B. Justice Wills observed that delegated legislation
does not mean giving up of authority rather the conferring of authority on
someone else.

3. Union of India vs. S. Srinwasan (2000) The Supreme Court held that the rules
framed by a delegated beyond a parent act otherwise it is declared ultra vires.

4. Rasid Jawed vs. State of Uttar Pradesh a delegate must exercise its
jurisdiction within the four corners of its delegation and if he has acted beyond
that his actions cannot be justified unless rectified by the delegator.

5. St. Johns Teachers Training Institute vs. Regional Director National

Coucil for Teachers Education. The Supreme court held that the power to
make subordinate legislation is derived from enabling act it is fundamental that
the delegate on whom such power is conferred has to act within the limit of the
authority conferred by the act. Rules cannot be made subgrant the provisions of
enabling act but to supplement it.

SCOPE OF DELEGATED LEGISLATION

Modern state being a welfare state requires multitudinous legislation to cater to the multiple
needs of individuals requiring regulation from cradle to grave. Today, there is no statute
without delegated legislation because it is to a potent weapon for modern governance. In
delegated legislation, legislature enacts a statute covering only general principle and policies
relating to the subject matter in question and confers rule making power on government or
administrative bodies to fill in the details. The Parliament generally passes law in skeleton
from. Defining legislative policies and objectives by using expression like (such orders as
authority may feel necessary and expedient from time to time).
 5

EMERGENCE OF DELEGATED LEGISLATION

As accepted that delegated legislation is a consequence of modern democratic legislative

problems of governance, the reality is quite different. The concept was in existence since the
Greek and Roman city states. The emergence of delegated legislation can traced in brief
account given below:

GREECE: In the times of Plato and Aristotle, the city states were small and did not have
to face the problem of an overload of law making but as time passed, the government’s
activities also increased. However they observed the limitations of the powers of
representation with the representative.

ROME: Rome faced a problem of delegation and the concept of Delegatus non-potest
delegare emerged.

ENGLAND: Bentham, Chadwick and Lord Hewart were the pioneers in the thick
controversy over delegated legislation. They asked for devolution, so that the subordinate
bodies could be given greater power to legislate there could be some decentralization. The
British Judicare Acts and the rationalization of the royal prerogatives, the court writs, orders
in council and departmental regulations in the nineteenth century paved the way for delegated
legislation.
 6

(CHAPTER-II)
TYPES OF DELEGATED LEGISLATION
It has been very rightly remarked by Professor Wade that “the system of delegated legislation
has been built up haphazard without plan and the extent and limit of delegation have been
determined by accident and expediency and not upon any system. It is difficult to find, and it
may difficult may be misleading to look for any clear or conscious purpose in the historical
development of process”.3

It is possible to distinguish two types of delegated legislation and to say that one of them
represents the normal and other exceptional one. Besides these two types, the third type of
delegated legislation is Henry VIII Clause and there exist another type of delegation which
excludes judicial control thus, there are following four types of delegated legislation:

(i) Normal
(ii) Exceptional
(iii) Henry VIII Clause Type
(iv) Delegated legislation excluding Judicial Review

 NORMAL TYPE

In the normal type of delegate legislation there are two classifications:

(1.) POSITIVE

(2.) NEGATIVE

POSITIVE: In the former one, the positive characteristic is that limits of delegated powers
are defined so clearly by enabling acts as to be made plainly known to be the executive and
public to be readily enforced by the judiciary.

NEGATIVE: The negative characteristic is that powers delegated do not include power to
do not include power to do certain things, namely:

(i) to legislate on the matters of principle or to impose taxation.

3
Prof.U.P.D.Kesari, Administrative Law 78(Central Law Publications, Allahabad, 12 th edn., 2014)
 7

(ii) to amend the acts of parliament, either the act by which the powers are delegated or others
act.4

 EXCEPTIONAL TYPE

There are certain exceptional instances of delegated legislation which may be conveniently
classified as follows:

(i) Instances of power to legislate on the matters of principle and even to impose taxation

(ii) Instance of power to amend act of the parliament, either the act by which the power are
delegated or other acts

(iii) Instances of powers conferring so wide a discretion on a minister that it is almost

impossible to know the limits which the parliament intended to impose.

(iv) Instances where the parliament, without formally abandoning its normal practices of
limiting delegated power has, in effect, done so by forbidding the judicial control.5

 HENRY VIII Clause Type

This clause is known as the Henry VIII Clause Type of power after the name of King Henry
VIII, who was the monarch of England from 1509 to 1547 and during his regime he
encountered numerous difficulties in enforcing the will. A study of the English history of his
period will clearly reveal how Henry VIII succeeded in “removing the difficulties” that came
in his way by using the instrumentalities of the parliament. In doing so he often acted
recklessly and much against the wishes of the parliament. The “HENRY VIII Clause”
personifies the executive autocracy in disrespectful commemoration of his tendency to
absolution. Under this type of delegation the executive is given a very broad power of
amending a statute. The executive is empowered to vary or modify the provisions of an act
itself. Some instances of delegated of Henry VIII Clause Type are found in England which
are as follows:

National Insurance Act of 1911-Under this provision the insurance commissioner were
authorised to modify provisions of the act.

4
Id, p.79
5
Ibid
 8

The instances of delegated legislation of Henry Clause Type are also found in at the times
Indian statutes. Sometimes Indian legislature pass an act where on the account of uncertainty
or the difficulties that may arise under the act they delegated to the government the power to
make adjustment in the act itself to meet such difficulties. Usually such a clause is to operate
for a limited period. We find an example of this type of delegation under Article 392(1) of the
constitution which authorised the president to direct the order that the constitution would
have affect the subject to such adaption, whether by law by way of modification, addition or
omission ,as he might deemed necessary or expedient.6

 Delegated Legislation excluding Judicial Review

The fourth type of delegated legislation by the legislature to the executive is that where the
act empowers the act shall not be questioned the executive to make rules and regulations ,the
validity of which shall not be questioned in any court of law. Thus such type of delegation
provides for exclusion of judicial control of the rules and regulations made by the executive
in the capacity of delegated power.7

6
Id, p.80
7
Ibid
 9

(CHAPTER-III)

Factors leading to the growth of Delegated Legislation

Introduction: One of the advances in the realm of administrative process made during
these days is that apart from ‘pure’ administrative function, the executive performs legislative
function as well. Due to a number of reasons, there is rapid growth of administrative
legislation. This type of activity is known as “Delegated Legislation”. Generally, what
happens is that legislature enacts a law covering only general principles and policies relating
to the subject matter in question and confers rule-making power on the government or some
other administrative agency. This is so because the direct legislation of parliament is not
complete. The executive is given power to supplement the laws made by the legislature.

Generally, ‘delegated legislation’ means the law made by the executive under the powers
delegated to it by the legislature. In other words when the function of legislation is entrusted
to organs other than the legislature itself, the legislation made by such organs is called
delegated legislation.8

Factors leading to the growth of Delegated Legislation

Delegated Legislation is not an isolated phenomenon. Numerous factors are responsible for
its growth. The traditional theory of ‘laissez faire’ has been given up by every state and the
old ‘police state’ has long ceased to regard its role in the social and economic life of the
community as that of a ‘glorified policeman’ and now has become a welfare state. Because of
such a radical change in the philosophy as to the role to be played by the State, its functions
have tremendously increased in promoting the welfare of its citizens from cradle to grave.
Consequently, delegated legislation has become indispensable. As stated by the Committee
on Minister’s powers the following factors are responsible for the rapid growth of delegated
legislation at large scale:

(i) Need For Socio-Economic Welfare Democratic State

In a welfare state, which exists today, delegation of legislative power to the administrative
authorities has become imperative. It may thus be safely stated that the principal, the basic

8
Dr.J.J.R Upadhyaya ,Administrative Law, 68(Central Law Agency, Allahabad, 9th edn., 2014)
 10

factor leading to the growth of delegated legislation is the complexities of the modern
administration operating the present socio-economic welfare democratic State.

The Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works

Ltd.9,explained that “the power of delegation is a constituent element of the legislative power
as a whole under Article 245 of the Constitution and the other related Articles”. The court
further held that “when the legislature enact laws to meet the challenges of the complex
socio-economic problems”, they often found it convenient and necessary to delegate
subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid
down by the Acts as part of the Administrative Law.

A three-Judge Bench of the Supreme Court in M.P. Singh v. Chairman, Bihar Legislative
Council10, explained that the basic principle underlying the concept of delegated legislation
was that “the Legislature delegates because it cannot directly exert its will in very detail. All
it can in practice do is to lay down the outline.”

(ii) Enormous Increase in State’s Activities

The exigencies of the modern Welfare and Service State have added enormously to the
activities of the administration. The state today is not concerned merely with the preservation
of public peace, the execution of laws and the defence of its frontiers. It is now enjoined to
secure to its citizens all the basic necessities of life so as to enable them to develop their
personality to the fullest possible extent. For instance, the Constitution of India, in its
Preamble as also Parts III and IV, contains objectives to be redeemed by the State. These
impose positive obligations on the State, which in turn, has resulted in intense legislative
activity. These create the need for more and more law. As there is phenomenal increase in
functions of state, the bulk of legislation is so great that it is not possible for the legislature to
devote sufficient time to discuss all the matters in detail. Therefore, legislature passes
skeleton legislation containing general policy and empowers the executive to fill in the
details, “thus giving flesh and blood to the skeleton so that it may live” by making necessary
rules, regulations, bye-laws etc. Law making is not a turn key project, readymade in all detail
and once this situation is grasped the dynamics of delegation easily follows. Delegated

9
AIR 1997 SC 2502.
10
AIR 2005 SC 69.
 11

Legislation is thus the only way out to economise legislative time. Delegation of rule-making
power is, therefore, a compulsive necessity.11

(iii) Lack of Technical Aptitude and Knowledge

The complexities of the modern welfare state render legislations becoming highly technical
and complex. It requires expert knowledge to work out the details. For example, a Public
Health Act, cannot lay down the symptoms of cholera or AIDs. It has to empower the health
authorities to frame rules to carry out the objects of the Act. Likewise, a law for Town
Planning, may only lay down its policy of preventing overcrowding, but it cannot go into
details as to how new houses should be planned.

Since the Legislatures are mostly generalists and sometimes innocent of legal and technical
skills, matters of technical character have necessarily to be left to the professional
administrators and specialists in administration. The result is that the Legislature, in a welfare
state, is compelled to adopt the technique of passing a skeleton Act, giving only the
framework of the law on the subject and delegate powers to administrative authorities to fill
up the details.

Sometimes, the subject-matter of legislation is of a technical nature and requires consultation

of experts. In such cases the legislative power may be delegated to experts to deal with the
technical problems. Legislation concerning atomic energy, nuclear energy, gas, drugs or
electricity may be quoted as illustration of such technicalities.12

(iv) Flexibility

Parliament does not function continuously. At the time of passing any legislative enactment,
it is not possible to foresee all the contingencies. Therefore, power is necessarily required to
be given to the Executive to meet the unforeseen contingencies or to adjust new
circumstances arising frequently. While parliamentary process involves delays, delegated
legislation offers rapid machinery for amendment. Police regulations and certain economic
regulations relating to bank rate, import and exports, foreign exchange etc. are instances of
such situations.13

11
Prof. Narender Kumar, Nature & Concept of Administrative Law 66(Allahabad Law Agency, Haryana, 1 st
edn., 2011).
12
Supra note 6, p.66
13
Supra note 9, p.70
 12

(v) Experimentation

Ordinary legislative process suffers from the limitation of lack of viability and
experimentation. Delegated legislation enables the executive to experiment. The method
permits rapid utilisation of experience and implementation of necessary changes in the
application of the provisions in the light of such experience. If the rules and regulations are
found to be satisfactory, they can be implemented successfully. On the other hand if they are
found to be defective, the defects can be cured immediately.

(vi) Emergency

In times of emergency, quick action is required to be taken. An emergency may rise on the
account of war, insurrection, floods, epidemics, economic depression and the like. Legislative
process is not equipped to provide for urgent solution to meet the situation. It is, therefore,
necessary that executive must have power that may be used instantly. Delegated Legislation
is the only convenient remedy.14

(vii) Complexity of modern administration

Owing to the complex structure of society, modern administration has become complex. It is
assuming more and more responsibility in promoting the welfare of the citizens, supervising
their health, education and employment, regulating trade, industry and commence and
providing a great variety of other services. In this way the complexity of modern
administration and the expansion of the functions of state of socio-economic sphere have
rendered it necessary to resort to new forms of legislation and to give wide powers to various
agencies on suitable occasions. It is necessary that administration should be given ample
power to implement socio-economic policies so that immediate action can be taken. By
resorting to traditional legislative process, the entire object may be frustrated by vested
interest and the goal may not be achieved at all.

Due to these factors, delegated legislation, as a technique of modern administration, is now

regarded as useful, inevitable and indispensible.15

14
Ibid
15
Id, p.71
 13

Merits of Delegated Legislation

Merits of the mechanism of delegated legislation may be read into the factors or reasons,
discussed above, which have led to its growth in the era of modern functional Government.
These may be put briefly as follows:

(a) Delegated legislation economise the time of the legislature.

(b) Delegated legislation enables the state to give quantity and quality of laws, which are
required for the proper functioning of present socio-economic welfare democratic
State.
(c) Delegated legislation is a convenient and necessary mechanism with the legislature
for carrying out their policy laid down by them in the Statutes enacted by them.
(d) Delegated legislation meets the need of legislation requiring expert knowledge, which
it is getting highly technical and complex.
(e) Delegated legislation enables the state to meet unforeseen contingencies, like floods,
famines, black-marketing, strikes, breakdown of law and order.
(f) Delegated legislation enables the government to provide for expansion of public
utility services.16

Demerits of Delegated Legislation

Delegated legislation has come to stay in the present welfare society. Rather, it has become
inevitable, a necessary evil. It is regarded as a necessary incident to the exercise of legislative
power.

The exigencies of the modern state, especially the social and economic reforms, have given
rise to the making of delegated legislation on a larger scale, so much so, that a reasonable fear
might have arisen among the people that “they were being ruled by the Bureaucracy”. Some
even call it Bureaucratic Legislation.

Though, useful and inevitable, the technique of delegated legislation, may result in
subversion of responsible government and erosive of democratic order, unless it is subjected
to legitimate control. Many a time, the legislature passes only skeletal Statutes, without even
laying down even a policy statement and thus leaving to the executive, the task of not only

16
Supra note 6, p.69
 14

laying down “details”, but even that of formulating and determining the objectives of
legislation. It entails the danger of the Executive becoming all powerful and even despotic.17

17
Id, p.106
 15

(CHAPTER-IV)
Delegation of Powers

Meaning: Delegation of powers means those powers, which are given by the higher
authorities to the lower authorities to make certain laws, i.e., powers given by the legislature
to administration to enact laws to perform administration functions.
The law legislate by the administration with the powers given by the legislature is called
delegated legislation. Or we can say that when an instrument of a legislative nature is made
by an authority in exercise of power delegated or conferred by the legislature is called
subordinate legislation or delegated legislation. Delegated legislation, also referred to as
secondary legislation, is legislation made by a person or body other than Parliament.
Parliament, through an Act of Parliament, can permit another person or body to make
legislation. An Act of Parliament creates the framework of a particular law and tends only to
contain an outline of the purpose of the Act. By Parliament giving authority for legislation to
be delegated it enables other persons or bodies to provide more detail to an Act of Parliament.
Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to
make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act. The function
of delegated legislation is it allows the Government to amend a law without having to wait
for a new Act of Parliament to be passed. Further, delegated legislation can be used to make
technical changes to the law, such as altering sanctions under a given statute. Also, by way of
an example, a Local Authority have power given to them under certain statutes to allow them
to make delegated legislation and to make law which suits their area. Delegated legislation
provides a very important role in the making of law as there is more delegated legislation
enacted each year than there are Acts of Parliament. In addition, delegated legislation has the
same legal standing as the Act of Parliament from which it was created. Doctrinal of
permissible limits Doctrine of permissible limit basically talks about the powers of a
legislature which can be delegated to the Administrative authorities a legislation cannot
delegate all its powers. The legislature has some limited powers which can be delegated.
Those powers are as follows:

Powers which can be delegated

 16

 Commencement

Several statues contain an 'appointed day' clause, which empowers the government to appoint
a day for the act to come into force. In such cases, the operation of the act depends on the
decision of the government e.g. section 3 of the Bombay Rents, hotel and Lodging house
rates control act, 1947 provides that the act shall come into operation on such date as the state
Government may by notification in the official gazette appoint in this behalf. Here the act
comes into force when the notification is published in the official gazette. Such a provision is
valid for, as Sir Cecil Carr remarks, "the legislature provides the gun and prescribes the
target, but leaves to the executive the take of pressing the trigger".

 Supplying details
If the legislative policy is formulated by the legislature, the function of supplying details may
be delegated to the executive for giving effect to the policy. What is delegated here is an
ancillary function in aid of the exercise of the legislative function e.g. section 3 of All India
Service Act, 1951 authorizes the central government to make rules to regulate conditions of
service n All India Services. Inclusion : Sometimes, the legislature passes an act and makes it
applicable, in the first instance, to some areas and classes of persons, but empowers the
government to extend the provisions thereof to different territories, persons or commodities,
etc, e.g., the transfer of property act, 1882 was made applicable to the whole of India except
certain areas, but the government was authorized to apply the provisions of the act to those
areas also. In the same manner, the Dourine Act, 1910 was made applicable to horses in the
first instance but by section 2(2), the government was authorized to extend the provision of
the act to asses as well. By section 146 of the Indian Railways act, 1980, the government was
authorized to apply the provision to tramways. Exclusion
There are some statutes which empower the government to exempt from their operation
certain persons, terrorist, commodities, etc. section 30 of the payment of Bonus Act, 1965
empowers the government to exempt any establishment or a class of establishment from the
operation of the act. Suspension : Some statutes authorize the government to suspend or relax
the provisions contained therein, e.g. under section 48 (1) of the Tea Act, 1953, the central
government is empowered under certain circumstances to suspend the operation of all or any
of the provision of the said act. Application of existing laws : Some statutes confer the power
on the executive to adopt and apply statutes existing in other states without modifications
(with incidental changes) to a new area. There is no unconditional delegation in such cases,
as the; legislative policy s laid down in the statute by the competent legislature.
 17

 Modifications
Sometimes, provisions are made in the statute authorizing the executive to modify the
existing statute before application. This is really a drastic power as it amounts to an
amendment of the act, which is a legislative act, but sometimes, this flexibility is necessary to
deal with the local conditions. Thus, under the power conferred by the Delhi laws act, 1912,
the central government extended the application of the Bombay agricultural debtors relief
act.1947 to Delhi. The Bombay Act was limited in application to the agriculturists whose
annual income was less than Rs. 500 but that limitation was removed by the government.

In addition, delegated legislation has the same legal standing as the Act of Parliament from
which it was created. There are several reasons why delegated legislation is important.
Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can
be amended and/or made without having to pass an Act through Parliament, which can be
time consuming. Delegated legislation, also referred to as secondary legislation. Delegation
of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, In order to delegate its powers to any person or body,
parliament has its own limitations. Parliament cannot delegate all its powers to any
Administrative authority. There are some powers which cannot be delegated. Those powers
which can be delegated can come into the preview of the Doctrine of permissible limits.
 18

(CHAPTER-V)

POSITION OF DELEGATED LEGISLATION

 Position of Delegated Legislation in USA

In Theory

The U.S. congress functions under a written Constitution and the courts have power to
interpret the Constitution and declare a congressional statute unconstitutional if it does not
confirm to their view of the constitution.

There prevails the doctrine of separation of powers in the U.S.A. Besides, the U.S supreme
court has also invoked the doctrine delegatus non potest delegare against delegation by the
congress. The doctrine means that a delegate can not further delegate its powers. The courts
thus argue that the congress , being a delegate of the people can not further delegate its law
making functions to any other agency.

Article 1 of the U.S constitution expressely confers on the Congress all legislative powers.
Article 2 states that the executive power shall be vested in a President and under Article 3 the
judiciary has power to interpret the constitution. In a leading case Field vs. Clark , the U.S
supreme court observed:“that Congress can not delegate legislative power to the president is
a principle universally recognised as vital to the integrity and maintenance of the system of
government ordained by the constitution.”

In Youngstoun sheet and tube co. vs. Sawyer, Jackson J. proclaimed,”with all its defects ,
delays and inconveniences men have discovered no techniques for long preserving free govt.
except that the executive be under the law, and the law be made by parliamentary
delibrations”.

In practice

Though in theory it was not possible for the congress to delegate its legislative power to the
executive strict adherence thereto as not practicable. Governmental functions had increased
and it was impossible for the congress to enact all the statutes with all the particulars. The
supreme court tried to create a balance between the two conflicting forces:
 19

1). Doctrine of separation of powers barring delegation

2). Inevitability of delegation due to the exigencies of modern govt.

In the course of time the courts have relaxed the rigors of the doctrine of separation of powers
and permitted broad delegation of power subject to the rider that the congress should lay
down standards or policies for the guidance of the delegate, that delegation should not be
uncontrolled. Therefore the courts insist that the congress should not delegate uncontrolled
power to the executive but the congress should itself declare the policy regarding the subject
matter of legislation and the power to lay down the details to effectuate the policy may be
delegated to administration.

In Panama Refining co. vs Ryan popularly known as Hot oils Case ,the congress authorised
the president to prohibit transportation of oil in inter –state commerce when produced in
excess of the quota fixed by each state. The majority of the U.S supreme court held the act
bad , as the congress declared no policy, established no standards and laid no rule.

In Schechter Poultry Corpn. Vs. U.S , the supreme court unanimously struck down Section
3 of the National Industrial Recovery Act 1933, which authorised the govt. to approve the
codes of fair competition and thereof was made punishable. The court held that the discretion
of the president was virtually unfettered.

After the above two cases however the supreme court took a liberal view and in many cases,
upheld delegation of legislative power.

In Yakus vs U.S. The office of the Price Administrator was set up to control priceswhich”
in his judgement will be generally fair and equitable and will effectuate the purposes of the
act” .The supreme court sustained this delegation holding that the standards were adequate.

The exigencies of modern govt. have persuaded the courts to relent in their attitude towards
delegation.The basic premise still remains that congress can not delegate legislative power
without prescribing standards, but whether this test is satisfied or not in case of a specific
legislation , is a matter on which courts have adopted a liberal attitude.

In many cases very broad delegations have been upheld and very vague phrases have been
held to be adequate as laying down standards so much so that one commentator has remarked
that “ judicial language about standards is artificial”. But still the courts do reserve to
themselves the power to declare the delegation of legislative power unconstitutional . Till that
 20

extreme point is reached courts permit delegation realising that legislature has to deal with
complex socio-economic problems and it may not be practical for it to meticulously lay down
the standards for the delegate to follow.18

It is argued that the doctrine serves two primary functions :

First it ensures that the fundamental policy decisions will be made by an appointed official
but by the body elected by the the people of the delegate, that delegation should not be
uncontrolled. Therefore the courts insist that the congress should not delegate uncontrolled
power to the executive but the congress should itself declare the policy regarding the subject
matter of legislation and the power to lay down the details to effectuate the policy may be
delegated to administration.

Second, it prevents judicial review from becoming merely an exercise at large by providing
the courts with some measure against which to judge the official action that has been
challenged.

Even though the U.S. supreme court has upheld broad delegations because of the exigencies
of the government in modern times, the court always reiterates the doctrine of excessive
delegation. The doctrine has never been repudiated , though in practical application the courts
adopt a flexible approach.

In Litcher vs U.S. , the administrative officers were empowered by the Reorganisation Act
1942 to determine whether the prices were excessive and to recover profits which they
determined to be excessive .The Supreme court held the delegation valid observing that the
statutory term ‘ excessive profits’ was a sufficient expression of legislative policy and
standards to render it constitutional.

The exigencies of modern government have persuaded the courts to reject an inflexible
application of the maxim against delegation. During the twentieth century administrative
agencies possessing the legislative power to make rules and regulations having the force of
law have come to stay.

It has however been felt that the orthodox viewstill holds good although the law on
delegation has moved from the theoretical prohibition against delegation to a rule against
unrestricted delegation.This modification had been necessitated by the need to allow the

18
Justice C.K. Thakker(Takwani), lectures on administrative law
 21

administrative agencies to develop their own policies by the insertion of the enabling causes
like “public interests” , “convenience or necessity” .

It may be stated that the U.S. supreme court in view of the exigencies of the modern
government recognises broad delegation yet the court always reiterates the doctrine of
excessive delegation. The doctrine has not been repudiated though in application the court
adopt a flexible approach. The approach, the U.S. Supreme Court follows, may be
summarised as:

1. That the congress can not abdicate its essential legislative function

2. That , it must declare its policy and lay down adequate standards

3. That the courts can interfere if no standards or policy are laid down

4. That the legislature may delegate to an outside agency, matters which it is unable to do

5. That in delegating the legislative power the legislature should retain the ultimate control
over the delegate.19

 Position of Delegated Legislation in India

PRE - CONSTITUTION PERIOD- As regards pre- constitution period relating to delegated
legislation in India,Queen vs. Burah is considered to be the leading authority propounding
the doctrine of conditional legislation. In 1869 the Indian legislature passed an act purporting
to remove the district of garo hills from the jurisdiction of civil and criminal courts and the
law applied therein and to vest the administration of civil and criminal justice within the same
district in such officers as the Lieutenant Governor of Bengal might appoint for the purpose.
By section 9 the Lieutenant –Governor was empowered to extend mutatis mutandis all or any
of the provisions of the act applicable to Khasi , Jaintia and Naga Hills in the Garo hills and
to fix the date of such application. By a notification the lieutenant –Governor extended all the
provisions of the act to the District of Khasi and Jaintia Hills which was challenged by Burah
who was convicted of murder and sentenced to death.

The high court of Calcutta by a majority upheld the contention of the apellants and held that
section 9 of the act was ultra vires the powers of the Indian legislature. According to the court

19
Dr.Narendra Kumar , Nature and concepts of Administrative law,pg.76,Allahabad Law Agency,Faridabad
 22

the Indian legislature was a delegate of the Imperial Parliament and therefore further
delegation was not permissible.

The question of constitutional validity of delegation of powers came for consideration before
the Federal in Jatindra Nath Gupta vs. Province of Bihar. In this case the the validity of
section 1(3) of Bihar Maintenance of Public order Act 1948 was challenged on the ground
that it empowered the provincial government to extend the life of the act for 1 year with the
modification as it may deem fit. The federal court held that the power of extension with
modification is not a valid delegation of legislative power because it is an essential legislative
function which cannot be delegated. In this way for the first time it was ruled that in India
legislative powers cannot be delegated. In this way for the time it was ruled that in India
legislative powers cannot be delegated.20

POST - CONSTITUTION PERIOD

Constitutionality of delegated legislation – As the decision in Jatindra Nath case had created
conclusion the question of permissible limits of delegation of legislative became important.
Therefore in order to get the position of law clarified , the President of India sought the
opinion of supreme court under Article 143 of the Constitution. The question of law which
was referred to the supreme court was of great importance and was first of its kind. The
provision of the three acts viz.

1. Section 7 of the Delhi laws act ,1912

2. Section 2 of the Ajmer – Mewar Act, 1947

3. Section 2 of the part C states(laws) Act 1950 were in issue in Delhi laws Act

There were a few part C states. Delhi was one of them.Part C states were under the direct
administration of the central govt. as they had no legislature of their own. It was therefore the
parliament passed a law the Part C states (law) act,1950.

The central govt. was authorised by sec 2 of the part C states (law) act ,1950 to extend to any
part C states with such modification and restriction as it may deem fit, any enactment in force
in a part C state and while doing so it may repeal or amend any corresponding law which
might be in force in the Part C states.

20
Dr. J.J.R ,Administrative law,pg no. 67,sixth edition, Central law agency,Allahabad
 23

The supreme court was called upon to decide the legality of the aforesaid provision. All the
seven judges who heard the reference gave their separate opinions exhibiting a cleavage of the
judicial opinion on the question on the question of limits to which legislature in India could be
permitted to delegate its legislative power. The majority held the valid subject to two
limitations:-

1. The executive cannot be authorised to repeal a law in force and thus, the provision which
empowered the central govt. to repeal a law already in force in the Part C state was bad.
2. By exercising the power of modification the legislative policy should not bechanged and thus
before applying any law to the part C state, the central govt. cannot change its legislative
policy.21

Jain and Jain stated two points on which there was similarity in the outlook evidenced in the
opinions. First ,keeping the exigencies of the modern govt. in view ,Parliament and state
legislatures inIndia need to delegate legislative power if they are to be able to face the
multitudinous problems in the country .Second since the legislatures derive their powers from
the written constitution which creates them they could not be allowed the same freedom as
the british parliament some limits should be set on their capacity to delegate.
The major difficulty was where to set the limit ,where to draw the line ,where to be the
permissible contours and within which an Indian legislature could delegate its legislative
power?
In Harishankar Bangla vs. State of MP, under sec. 3 of the essential supplies act 1946, the
central govt was empowered to issue an order for the regulation of production of essential
commodities . By sec 6 it was provided that an order made under sec 3 shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other than the
act.Both the sections were challenged on the ground of excessive delegation of legislative
power. The court held that the legislative policy was laid down in the act and there was no
excessive delegation.
Hamdard Dawakhana vs.Union of India was probably the first case in which central govt.
was held ultra vires on the ground of excessive delegation. The Drugs and Magic Remedies
Act 1954 was enacted by the Parliament to control advertisement of certain drugs. Section 3
laid down a list of diseases for which advertisement was prohibited and authorised the central
govt. to include any other disease in the list. The supreme court held section 3 invalid as no

21
Dr. J.J.R,Administrative law, pg no. 67-68,sixth edition,Central law agency,Allahabad
 24

criteria,standards or principles had been laid down therein, and the power delegated was
unguided and uncontrolled.
In Gwalior Rayon Silk Mfg. Co. Ltd. vs CST under section 8(2) (b) of the Central Sales
Tax,1956, Parliament did not fix the rate of central sales Tax but adopted the rate applicable
to the sale or purchase of goods within the appropriate state in case such rate exceeded 10
percent . The said section was challenged on the ground that parliament in not fixing the rate
itself the rate itself and in adopting the rate applicable within the appropriated state has not
laid down any legislative policy and had abdicated its legislative function.
The section was upheld by all the five judges observing that sufficient guideline was provided
in the act by parliament. Mathew J observed that delegation involves granting of
discretionary power to another but the ultimate power always remains with the legislature.
In M.K. Papiah vs Excise commr. In this case section 22 of the Karnataka excise act
1966conferred on the govt . power to fix the rates of excise duty and section 71 empowered
the govt. to make rules. Rules made under the act were to be laid before the state legislature .
Both the sections were challenged on the ground of impermissible delegation of legislative
power. Mathew J. observed that laying of the rules before the legislature was a sufficient
check on the power conferred to the delegate.
In Hansraj vs Bar council of Maharashtra the state bar council framed a rule as to ‘ right to
practice’ legal profession and disqualified persons if they were engaged in any other
occupation. It was contended by the petitioner who was In medical profession that the rule
was bad as there was excessive delegation of legislative function by the legislature. It was
held that the rule effectuated the object,purpose and scheme of the act and provided enough
guidelines and was valid.
In St. John Teachers training institute vs regional director, NCTE the supreme court
emphasised on the need and necessity of delegated legislation . It was observed that the
legislature cannot possibly foresee every administrative difficulty that may arise in operating
a statute. Delegated legislation fill those gaps and details. Rules framed by the executive in
exercise of delegated power, however, cannot supplant the law enacted by the legislature but
can supplement it.
Delegated legislation made in exercise of power under the parent act is supporting legislation
and has the force and effect, if validly made, as the Act itself.22

22
Justice C.K. Thakker (Takwani), Lectures on administrative law,pg no.77-83,Eastern book
Company,Lucknow
 25

CONCLUSION

Delegated legislation is important in the wake of the rise in the number of legislations and
technicalities involved. But at the same time with the rise in the number of legislations and
technicalities involved, the need to control it also arises because with the increase in the
delegation of power also increases the chance of abuse of power. The delegated legislation
can be questioned on the grounds of substantive ultra vires and on the ground of the
constitutionality of the parent act and the delegated legislation. The latter can also be
challenged on the ground of its being unreasonable and arbitrary. But in order to ease the
burden and also to increase the efficiency delegated legislation is important and a necessity.
Only the excessive delegation is unjustifiable which is only controlled through proper check
and vigilance. The exigencies of the govt. has made delegation a need of the hour and no
matter if it is India or USA delegation is a need of every country and has to be put in action
when things are to be done practically.
 26

(CHAPTER-VI)

PROCEDURAL & PARLIAMENTARY CONTROL

OVER DELEGATED LEGISLATION

INTRODUCTION

The practice of delegated legislation is now well established. It is regarded as inevitable. In a

world where social, economic technological and administrative progress outstrips the
spacious and traditional legislative ideals and processes, delegated legislation has come to
stay. The system of delegated legislation is not completely blameless as it suffers from
several defects. Many a times legislation passes an “:skeleton” form containing only the
barest of general principles and thus leaves to the executive of not only laying down the
details but even of formulating and determining policies and principles related to the subject
matter of the legislation.23

Two stages of control: there are two stages of delegated control

(a) Control at the time of passing of the parent act

(b) Control when legislature scrutinize the delegated legislation

Control at time of passing of parent act:

It is the first stage where the power os delegated. This is also known as prenatal control. The
question at this stage is whether legislation should be free to delegte any amount of
legislative power to the executive or the legislative should be restrained in its disrespect.
Parliament control and the procedural control comes at this very first stage.

Control where legislative scrutinize the delegated legislation:

It is the second stage when the power is only being delegated. This is known as postnatal
control. The question at this stage is what control, mechanism should be put into so as to

23
Dr. U.P.D. Kesari, Administrative Law (Central law Publications, Allahabad, 20 th ed., 2014) p. 83-84
 27

minimize the hazard of the technique of delegated legislation? Judicial control comes into
action at this very second stage.

In order to ensure the power of delegated legislation is not misused it has been subjected to
three fold control. These modes of control maybe classified as:

(a) Procedural control

(b) Parliamentary control
(c) Judicial control

Procedural Control:

It is not possible for the parliament to exercise effective control over the delegated
legislation. Therefore, certain procedural safe guides have been provided which are relevant
to keep constant watch over the exercise of this power by the administrative authorities. C.
Carr put great emphasis on this control. He suggested the forming of five points:

 The authority exercise delegated legislation should be identifiable and trustworthy

 In the limits of delegated authority should be clearly defined
 The interest likely to be affected should be consulted
 The rules etc should receive enough publicity
 There should be a provision for revocation and amendment of the rules

Method of Procedural Controls:

The methods of procedural control are as follows:

 Prior consultation of interests likely to be affected by the proposed delegated legisl

ion
 Prior publicity of proposed rules and regulations
 Publication of delegated legislation

 Prior consultation of interests likely to be affected by proposed delegated

legislation:

The purpose of prior consultations of the affected interests is to know their view points and
to minimize the objections to administrative legislation. This technique would also be
useful in avoiding improper use of rule-making power by h=the executive. It also needs the
 28

rulemaking authority to insure that they are fully apprised of all the concerned problems
which they are supposed to deal with by the rules.

In the United States the practice of prior consultation is very much common. The
Administrative Procedure Act requires the rule-making authority to consult the interests
likely to be effected. The interested persons are given an opportunity by the agency
concerned to submit their representations within prescribed time.

In India there is no general provision of law, requiring the consultation of the affected
interests in the process of rule-making. Where consultation is required, such words as “the
power to make rules shall be subject to the conditions of previous publications” ate inserted
in the parent Act. If consultation is thought to be advisable, the particular parent Act must
prescribe it through a statutory provision. In the absence of any statutory requirement,
consultation cannot be claimed by anyone as a matter of right. Consultation can be claimed,
if there is a statutory provision warranting the same.

CASE LAW:

Banwarilal Agarwala v. State of Bihar AIR 1961 SC 841

The Supreme Court has held that Section 59 of the Mines Act, which requires reference of
draft regulations to Mining Board in order to consult them, is mandatory and regulation made
in contravention of this requirement would be invalid. It is only consultation which is
necessary; the rule-making authority is not bound to abide by the recommendations made to it
by the concerned interests.24

 Prior publicity of proposed rules and regulations:

Procedural safeguard against delegated legislation is prior publicity of proposed rules and
regulations, so that persons to be affected by the regulations may know it beforehand and
make representations if they are so aggrieved. Prior publicity is ante-natal publicity. In
antenatal publicity it is required that rules must be published in a draft before being
implemented, to give an opportunity to the people to have their say in the rule-making.
Antenatal publicity in the General Clauses Act which reads that by-laws; rules and
regulations be published in draft form in the gazette, objections and suggestions be invited

24
P.V. Shivarajan v Union of India, AIR 1959 SC 556
 29

from the general public and those objections and suggestions be considered by the
administrative authority making the rule.

In India the practice of prior publication has been adopted wherever prior consultation has
been deemed necessary. According to Section 23 of the General Clauses Act, 1897, the
authority shall publish the draft rules for information of affected interests in such manner as
it deems sufficient. The authority shall take into consideration any objection or suggestion
which may be received by it while finalizing the rules. But in India the number of statutes
in which the condition of prior publication is provided in not many

In England the Rules Publication Act, 1893, required the publication of proposed rules at
least 40 days before they were made and required the rule-making authority to consider any
representations presented by any pubic body.

CASE LAW:

Tulsipur Sugar CO. v Notified Area Committee AIR 1980 SC 882

The Supreme Court held that under section 3 of the act being in the nature or subordinate
legislation, it was the duty of the state government to follow the same procedure which was
applicable to the promulgation of the rules under section 39 of the act. The subsection 3 of
the section 39 of the act which provided that the power t make rules under the said action was
subject to the conditions of the rules being made after previous publication.

 Publication of delegated legislation:

Publication of any law, rule, or regulation, is extremely necessary to ensure full justice to the
public. Laws should be ascertainable and clear to the persons who are to be affected by it.
This is post-natal publicity. They should be amply published, so that it may not come to the
public as a surprise.

In Great Britain all the statutory instruments are published by the stationary officer after
having laid before the Parliament. They contain the date on which they come into force. 25

In India there is no general statutory provision requiring or regulating publication of

delegated legislation. But there is a general practice to publish them in the Gazette of India.

25
Dr. U.P.D. Kesari, Administrative Law (Central law Publications, Allahabad, 20 th ed., 2014) p. 86
 30

Sometimes the Parent Act (statute) also provides for their publication in the Gazette.
Publication of the delegated legislation in the Official Gazette has many advantages e.g.,

(a) It give authenticity to the issue to the rules and settles the issue as to whether they
have being duly made
(b) The individuals can have an easy access to the rules for they can easily locate them.

CASE LAW:

Harla v. State of Rajasthan, AIR 1961 SC 467

The Supreme Court held that unless the Act or any other instrument having the force of
law, is duly published it cannot be said to have any force. This case is related to the old
Indian State of Jaipur. In the minority of Maharaj, the Crown representative appointed a
Council of Ministers to carry on the administration of the Princely State in 1922. This
Council in 1925 passed resolution to enact an Act, which was known as ‘Jaipur Opium
Act’.

The Act was never published nor was it mentioned in the official circles except in
1938, when it was alleged to have been amended. One Harla was convicted under this Act
and was fined Rs. 60. The Supreme Court set aside the conviction and declared the statute
devoid of any force. It is the principle of natural justice that the laws should be made known
to the public. It should be properly made and published. Publicity and accessibility are the
requirements of natural justice and they must be complied with. Therefore in order to give
legal force to any Act or instrument including rules, regulations, etc., it is necessary that they
should be published and made known to the public.

PARLIAMENTARY CONTROL:

It is the function of the Legislature to legislate, but if it seeks to give this power to the
Executive because of some circumstances, it is not only the right of the Legislature, but also
its duty, as an principal, to see how its agent (executive) carries out the agency entrusted to
it.The Parliamentary control is exercised by two methods. First is the ‘laying technique’ and
second is through ‘committees’.

PARLIAMENTARY COMITTEES:
 31

The Parliamentary control is further exercised through two Committees on subordinate

legislation. Each House has a Committee on subordinate legislation. ‘Dr. Ambedkar’ in 1950
suggested in the House that like Standing Committees in the House of Commons in Great
Britain, in India too there should be committees in the Lok Sabha. He further suggested that
such Committee would examine delegated legislation and would “bring to notice of
Parliament whether delegated legislation has exceeded the original intention of Parliament or
has departed from it or has affected any fundamental principle”. Accordingly a Committee
was formed on Ist December, 1953, known as Committee on Subordinate Legislation at the
Lok Sabha. The Lok Sabha Committee on Subordinate Legislation is older than the Rajya
Sabha Committee on Delegated Legislation. The former was established in 1953, and the
latter in 1964.

Members of the Committees of Subordinate Delegation:

 Lok Sabha: According to the Rule 215 the Rules of Business of the Lok Sabha made
provision for the Constitution of a Committee on Subordinate Legislation. The Lok Sabha
Committee consists of 15 members, appointed by the Speaker for a year, so that it represents
all political parties in the House in proportion to their respective strength. The Chairman is
usually a member of the opposition, and the ministers are debarred from the Committee’s
membership.
 Rajya Sabha: The Rajya Sabha Committee also consists of 15 members who are
nominated by the Chairman of the Rajya Sabha. The Chairman of the Committee is also
appointed by the Chairmen of the House. There is no prohibition in a Minister becoming a
member of the Rajya Sabha Committee. The Committee is to hold office until a new
Committee is nominated.

Functions of Committees: According to Rule 320 of the Lok Sabha Rules provides
that each Committee to scrutinize orders laid before the House and to consider:

 Whether the order is in accord with the general object of the Constitution or the Act
pursuant to which it is made;
 Whether it contains matter which in the opinion of the Committee should more properly
be dealt with in the Act of Parliament;
 Whether it contains imposition of any tax;
 Whether it directly or indirectly bars jurisdiction of the courts;
 32

 Whether it gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly give any such power;
 Whether it involves expenditure from the Consolidated Fund of India or the public
revenues;
 Whether it appears to make some unusual or unexpected use of the powers conferred by
the Constitution or the Act pursuant to which it is made;
 Whether there appears to have been unjustifiable delay in its publication or the laying of
it before Parliament;
 Whether for any reason its form or purport calls for any elucidation.

The direct modes of general control over delegated legislation by the Parliament are:-

(a) Through debates on the act which contain delegation

(b) Through questions and notices.
(c) Through moving resolutions and notices in the houses
(d) Through vote on grant.

Through discussions by speaker. The speaker may refer bills containing provisions for
delegations of legislative power to the committee to examine the extent of such powers
sought to be delegated.26

THE PRACTICE OF LAYING IN ENGLAND: Canada has a general

statutory provision requiring all the rules, regulations and the like to be laid before the
parliament. Some statutory rules require to be simply laid without being subject to
parliament approval or disapproval .In fact laying is informatory. The laying procedure
serve as a device by which parliament may come to know as to what has been done under
the powers delegated by it.27

There were various forms of lying. The select committee on delegated legislation in its report
1953 summarized these forms as following:

1. Lying without further provision of control: The enabling act under this form simply
provides that the instrument made under it shall be laid before the parliament and become
operative from the date it is laid before the Houses. In exceptional cases, it may come into
operation even before it is so laid. This procedure only serves the purpose of informing

26
Direction 103A of the Speaker, Directions by the Speaker Lok Sabha, 66 (3rd edition, 1980)
27
Wisconsin Legislative Council, Research Report on the Administrative Rule Making Powers , 1955, Vol. 2, p.
140
 33

Parliament what regulations, rules etc. have been made and provides a little opportunity for
any effective supervision or scrutiny by parliament.
2. Lying with deferred operation: When the requirement of laying is linked with a postponed
of the operation of the instrument. Parliament gets greater opportunity of control than in the
preceding form of lying.
3. Laying with immediate effect but subject to annulment: Under this procedure the rule
comes into effect when laid before the Parliament but shall cease to be in operation if
disapproved by either house or both the houses within the specific period. This is by far the
most common form of parliamentary control known as “negative resolution procedure”.
4. Laying in draft but subject to resolution no further proceeding be taken: This variant of
the negative resolution procedure and applies where the enabling act requires the draft of a
statutory instrument to be laid before the Parliament but does not prohibit the making of it
without the approval of Parliament.
5. Laying in draft and requiring affirmative resolution: This method provides a more strict
form of parliamentary supervision of delegated legislation than the negative negative
resolution procedure. The draft rules do not become effective until an affirmative resolution
approving the same has been passed by each house and therefore means that proposed rule
must be debated in parliament if they are to be effective. Responsibility and an affirmative
resolution rests with the govt.
6. Lying with immediate effect but requiring affirmative resolutions as a condition for
continuance: This form of lying is convenient where strict parliamentary suppression as well
as prompt operation of delegated legislation are essential but keeps it alive which would
otherwise die without such confirmation. It is often used in taxations when prior notice to the
subject might be prejudicial.28

28
See “parliamentary control of delegated legislation”, Jain Public Law, 1964.
 34

(CHAPTER-VII)

JUDICIAL CONTROL OVER DELEGATED LEGISLATION

INTRODUCTION

Delegated legislation is allowing bodies below the parliament to pass their own legislation
which can be exercise in the forms of statutory instruments, by-laws and orders in council.
Delegated legislation though necessary needs to be controlled so what it doesn’t work outside
its perimeter and in excessive manner. Thus it is controlled mainly by parliament and
judiciary. Overall, the parliament has control along the standing committees who take into
account the delegated powers made by the bill

Attention towards the abuse of delegated legislation was drawn by the committee on
ministers powers in the following words;“we doubt , however, whether parliament itself has
fully realized how extensive the practice of delegated legislation has become, or the extent to
which it has surrendered its own functions in the process, or how easily the practice might be
abused.”29

There is no need of compromise between the two conflicting principles; one permitting very
wide powers of delegation for practical reasons while the other that no new legislative bodies
should be setup by the transferring the essential legislative functions to administrative
authorities.

Judiciary is that organ of our government which acts as the protector of the rights of the
people. Our constitution reposes, in the judiciary the authority to guard that the limits
imposed by it are not violated by any of the organs of the government. The question of
permissible limits, within which the law-making power may be delegated to the
administrative bodies, is, thus, to be determined by the Courts.

In the case of S.S. Bola v B.D. Sardana, a three judge bench held that ;

“the unconstitutionality of any statute/executive action arises from various constitutional

variations such as the violation of the rules of distribution of power, separation of powers as

29
Dr. J.J.R. Upadhyaya “Administrative law”( Central Law Agency, Allahabad 6th edition) pg. 86
 35

also from the infringement of fundamental rights and from the violation of other
constitutional restrictions/limitations.”

Doctrine of ultra vires the maxim “ultra vires” literally means “beyond power”. Thus the
doctrine of ultra vires means when an authority works in an unauthorized direction and goes
beyond the power that it holds. Thus such rules and orders will be void.

In context of administrative law, Schwartz explains this doctrine as;

The jurisdictional principle is the root principle of administrative law. The statute is the
source if agency authority, as well as of its limits. If an agency act is within the statutory
limits its action is valid; if I is outside the limit of statute i.e. ultra vires it is invalid. No
statute is needed to establish this; it is inherent in the constitutional positions of agencies and
courts.”30

A statute can be ultra vires in two ways:

Substantive ultra vires: Substantive ultra vires is when the subordinate legislation goes
beyond its power and the authority conferred upon it. These delegations are void ab initio.

Procedural ultra vires: When a subordinate legislation is enacted without complying

with the procedural requirements prescribed by the parent act or by the general law it is
known as procedural ultra vires. Such delegation can either be quashed or ratified.

In case of Chandrakant Muljibhai v State of Gujarat the judiciary held that if the purpose
and object of the act already and brought into force is being defeated by the inaction on the
part of the executive to carry out the mandate of the legislature the court can’t sit on the fence
being helpless.31

Judiciary exercises control over delegated legislation mainly in three ways:

 Parent act is ultra vires the constitution

 Delegated legislation is ultra vires the constitution
 Delegated legislation is ultra vires the parent act

 Parent act id ultra vires the constitution:

30
ProF. Narender Kumar “Nature and Concept of Administrative Law” ( Allahabad Law Agency, Allahabad 1 st
ed 2011) pg. 126
31
Dr. Devinder Singh “An Introduction To the Administrative Law” (Allahabad Law Agency 1 st edition) pg.75
 36

Under Indian constitution legislature is responsible for the enactment of laws. Further, it is
liable to lay down the policy f the legislature which us considered to be the essential
legislative function. A Parent Act can be declared ultra vires in three ways:

o Express constitutional limits

o Implied constitutional limits
o Constitutional rights

Express constitutional limits: When the parent act violates any of expressly defined
constitutional provision, such rules and regulations are declared to be invalid. This can be
understood by the Article 246 of Indian Constitution which clearly demarcates the sectors in
which the union and State has power to make laws in three lists namely; Union List, State
List and Concurrent List. And if the union and state make laws outside their authority they
are declared invalid.

Implied Constitutional Limit: Implied constitutional limit were specifically laid down
in the Re Delhi Laws Case (AIR 1951 SC 332)

In the instant case three acts were in question mainly

(a) Delhi Laws Act, 1912: Section 7 of the act laid down that the government has power to
extend provision of any act prevalent in British India to the Province of Delhi with
modifications and restrictions which it may deem fit for their application.

(b) Ajmer Mewad Act, 1947: Section 2 of the act empowered the extend to the province of
Ajmer and Mewad any existing law from any other province or state with restrictions and
modifications which are deemed fit.

(c) Part C States Act, 1951: Section 2 of the act empowers the Central Government to extend
laws in Part A to Part C States with any restriction or modification as it may deem fit. Also, it
empowered the Central Government to repeal any law prevailing in the Part C to make it
more applicable.

The main question when being sent for presidential reference was if it was valid to give
power to the government to modify, restrict and repeal laws?
 37

It was held that the Delhi Laws Act, Ajmer Mewad Act and Para 1 of the Part C States Act
were valid. But Para 2 of the States Act was held invalid and overruled. The court explained
that “the legislature is the creature of the constitution, the constitution makers have placed
their confidence in the collective wisdom of the legislature, the constitution has chosen to
vest legislative power in the elected representatives of the people.” 32Thus, developed the
doctrine of “excessive delegation” which determines the permissible limit for delegation of
authority by the legislature. It should not delegate its essential legislative function, which
compromises the formulation of policy and enacting it into a binding rule of conduct.

Similar was held in the case of Hamdard Dawakhan v Union of India (AIR 1960 SC 554)

In the case Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act
was questioned. The said section dealt with imposing ban on the advertisement pertaining to
certain remedies. The act empowered appropriate government to include more diseases in the
list as it deems fit or right.

The court held this as a case of excessive delegation as no standard for determining the basis
on which the disease to be qualified to be added in the list. It is completely their discretion to
add any disease which results in excessive delegation of power.

Constitutional Rights: If by any law of legislature the basic fundamental rights laid down in
the constitution such laws and regulations are held invalid. This has been clearly laid down in
the landmark case of

Chintama Rao v State of Madhya Pradesh (AIR 1951 SC 118)

In the case with a view of providing the supply of the adequate labor for agricultural
purposes, in bidi manufacturing areas of the state the C.P. REGULATION OF
MANUFACTURING OF BIDIS ACT,1948 empowered the govt. to prohibit all the
manufacture of bidis during agricultural season. In exercise of the power the govt. framed
rules empowering the deputy commissioner to prohibit the manufacture of bidis in notified
areas in that season. He imposed a total ban. This was questioned as it violates the article
19(1)(g) of constitution of freedom to profess any profession.

The court held that this was substantive ultra vires and that no law can take away the
fundamental right of the people to practice and profess any occupation as they want.

32
Id 2 at pg. 133
 38

 Where Delegated Legislation is Ultra Vires the Constitution:

There may be instances when the parent act is totally valid and within its limits demarcated
by the Indian Constitution, but the rules and regulations framed there under maybe in conflict
with the provisions of the Constitution. In that case, the Court would declare the delegated
legislation emanating from the Parent Act, as unconstitutional and hence void. The court
would take into consideration the selfsame grounds as in case of determination of the
constitutionality of the Parent Act.33 This point was precisely determined and explained in
the case of

Narendra Kumar v Union of India (AIR 1960 SC 430 )

In this case the the Non-Ferrous Metal Control Order, 1958 was under question which was
passed under the Section 3 of the Essential Commodities Act, 1955 as violative of article
(19)(1)(g)of the Constitution.

The Supreme Court that the Order passed was invalid though the Act itself was completely
constitutional and valid. The Supreme Court held that even if the Parent Act is Constitutional,
the validity of the delegated legislation can still be challenged on the ground that the law
can’t be presumed to authorize anything which may be in contravention of the Constitution.34
The court further said that since mala fides had not been suggested, the court would proceed
on the assumption that the government had acted honestly.

The same was questioned in the Hari Shankar Bagla v State of Madhya Pradeh (AIR
1954 SC 465)

Section 3(5) of the Essential Commodities Act required that all orders of a general nature
made under section 3(1) were to be notified in the Official Gazette. The impugned order
issued under section 3(1) prohibit through clause (4) acquisition of copper without a permit
used by the Controller, in accordance with the principles “specified” by the Central
Government from time to time. The principles were specified by govt. in communication to
the Controller but not notified in the Official Gazette for public information. The Apex Court
held the principles, regarded as sub-delegated legislation, were not legally effective and
hence, the Order was unconstitutional and void.

 Delegated Legislation Ultra Vires the Parent Act:

33
Id 2 at pg. 138
34
Id 1 at pg. 89
 39

A supreme legislative body has the power to delegate its power to subordinate authority other
than the essential functions which it has to perform itself only. While doing so, the authority
to whom the power has been delegated must work in compliance with the provisions of the
Parent Act or the main authorizing authority. Thus, the delegated legislation must not be ultra
vires the parent act and the delegate can’t make a rule which is not authorized by the
delegating statute. Thus delegated legislation would be said to be ultra vires the parent act in
the following cases-

(a)When it is excess of the power delegated by the enabling Act

(b)when it is in conflict with the provisions of the enabling act

(c)when it is framed without following the procedure required to be followed in the enabling
Act.

A well settled case is of Addl. Dist. Magistrate(Rev.) v Sri Ram AIR 2000 SC 2143
In this case Delhi Land Revenue Act and Delhi Reforms Act did not empower the rulemaking
authority to classify the land or to exclude any area from preparation of record of right and
annual register. However, rules made under Act, 1962 classified land into six categories and
provided that the name of the tenure holder of sub-tenure holder occupying land in ‘extended
abadi’ and in prescribed six categories of land will not be reflected in the record of right and
annual register.

The court held that the rules were ultra vires the enabling act and held that the conferment of
rule-making power by an Act does not enable the rule-making authority to make a rule which
travels beyond the scope of the enabling Act.
 40

(CHAPTER-VIII)

CASES OF DELEGATED LEGISLATION

1. ISHWAR SINGH V. STATE OF RAJASTHAN35

In this case the appellant an employee of the society retired premature so he challenged his
retirement by way of revision petition before the additional registrar who allowed the
revision. The employer society challenge the decision of additional registrar by way of
revision before the state governmentwho set aside the order of additional registrar on ground
that the latter had no jurisdiction to ear the revision under the act. Holding the registrar and
the state government were not two authorities who could be said interchangeable, the
revisional powers of the state government were held not exhausted. The The Honourable
Supreme Court held, “to delegate to another is not to renew yourself. The word ‘delegate’
implies that powers are committed to another person or body which are as a rule subject to
assumption by the power delegating”.

2. HUTH V. CLARKE (1890) (QUEEN’S BENCH)36

Justice Wills observed, “Delegated Legislation does not mean giving up of authority rather
the conferring of authority on someone else”.

3. UNION OF INDIA V. S. SHRINIVASAN (2012) S.C. 37

The Honourable Supreme Court held, “the rules framed by a delegatee cannot travel beyond
the parent act otherwise they will be declared ULTA-VIRES”

4. TATA IRON AND STEEL COMPANY V. WORKMAN ( 1972 ) S.C.38

35
AIR 2005 SC 773
36
AIR 1890 SC 662
37
AIR 2012 SC 483
38
AIR 1972 SC 882
 41

The Honourable Supreme Court observed, “Increasing complexity of modern administration

and need for flexibility, capable of rapid readjustment to meet changing circumstances which
cannot be always be foreseen, in implementing our socio-economic policy, pursuant to the
establishment of welfare state, contemplated by our Constitution, have rendered it convenient
and practically necessary for legislatures to have frequent resort to the practice of delegating
subsidiary or ancillary powers to delegates of their choice . The Parliamentary procedure and
discussion in getting through a legislative measure is time consuming. Again such measures
cannot provide for all possible contingencies because when visualize various permutations
and combinations of human conduct and behaviour. Due to challenge of complex socio-
economic problems requiring speedy solutions, power of delegation has today as per
necessity has become constituent of legislative power as a whole”.

5. REGISTRAR, COOPERATIVE SOCIETIES v. KUNJABAN39

The Honourable Court observed, “Parliament and the state legislatures are not bodies of
experts and specialists. They are skilled in discovering the art of aspiration, the expectation
and the needs, the limits to the patience and the articulation of the views of the people whom
they represent. They function best when they concern themselves with general principles,
broad objectives and fundamental issues instead of technical and situational intricacies which
are better left to the better equipped full time expert executive bodies and specialist’s public
servants”.

6. AGRICULTURAL MARKET COMMITTEE v. SHALIMAR

CHEMICAL WORKS Ltd. 40

The Honourable Supreme Court held, that the most prominent and dominant reasons for
giving delegated legislation for giving delegated power to the government are:

 The area for which power is given to make delegated legislation maybe technical complex ,
so much so , that it may not be possible , and may even be difficult to set out all the
permutations in the statutes.

39
AIR 1980 SC 350
40
AIR 1997 SC 2502
 42

 The executive may require time to experiment and to find out how the original legislation
was operating and thereafter to fill up all other details.
 It gives an advantage to the executive, in the sense that the government with an onerous
legislative time schedule may feel tempted to pass skeleton legislations with the details being
provided by the making of Rules and Regulations.