Types and Reasons of Growth

1. Power to fill up the details or Skeleton

Legislation
2. Power of Inclusion and Exclusion
3. Power of Removal of Difficulty Clause
4. Power of By-passing
5. Power of Modification
The function of State is now to secure to its
citizens objectives set out in Chapter III & IV of
the Constitution. The desire to attain these
objectives has resulted in intense legislative
activity. The Parliament and State Legislatures
have neither the time nor the expertise to deal
with technical and situational intricacies. It
makes delegated legislation inevitable and
indispensable.
The demand for law generates a great pressure
of work on the legislature which not only makes
laws but also discharges such other functions
as supervising the Government, discussing and
influencing its policies, discussing proposals for
taxation and expenditure, ventilating people’s
grievances, etc.
 If the Legislature were to attempt enacting
comprehensive laws including not only policies
but all necessary details as well, its work-load
become so heavy that it may not be able to
enact the quantity of law on diverse subjects
which the public demands of it and which only
the legislature can enact.
Since most of the present day activities of the
State relate to socio-economic matters,
legislation tends to be quite technical and
complex and expert knowledge is required to
work out the details to fully implement the
policy in view. This can be done better by
specialists in the administration rather than by
legislators who are mostly generalists and not
experts in these matters.
Usually, many present day socio economic
schemes at the legislative stage are
experimental in nature and it is difficult to
foresee what problem would arise in future in
working them out in practice. This means that
the details of these schemes need to be
constantly adjusted in the light of experince
gained in the course of their operation.
A modern society is faced many a time with
situations when a sudden need is felt for
legislative action. Such situations can not be
met adequately unless the executive has
standby powers to take action at a moment’s
notice by promulgating the needed rules and
regulations according to the needs of the
situation.
In State of Rajasthan v. Basant Nahata AIR 2005
SC mentioned the following reasons of Growth
of Delegated Legislation-
1. The area for which powers are given to make
delegated legislation may be technically
complex, so much so, that it may not be
possible and may even be difficult to set out all
the permutations in the statute.
2. The Executive may require to experiment and
to find out how the original legislation was
operating and therefore to fill up all other
details.
3. It gives advantage to Executive, in the sense
that to fill the details in the skeleton legislation
by making rules and regulations.
The legislature can not delegate its power to
make a law, but it can make a law to delegate a
power to determine some fact or state of
things upon which the law makes or intends to
make its own action depend. There are many
things upon which wise and useful legislation
must depend which can not be known to the
law making power, and must therefore be
subject of enquiry and determination outside
of the hall of legislatures.
Legislature has to confer different kinds of
rulemaking power to the executive authorities
to overcome the various challenges and
maintain the relevancy of the Law.
The core function of delegated legislation is to
perform what is fictionally called as “power to fill
up the details”.
In Harishankar Bagla v. State of Madhya Pradesh
AIR 1954 SC 465 the Court justifying the broad
delegation of legislative powers to the executive
authorities under the Essential Supplies Act and
stated that “the ambit and character of the Act is
such that the details of that policy can only be
worked out by delegating them to a subordinate
authority within the framework of that policy.”
The legislature often confers power on the
executive to bring individuals, institutions, bodies,
services or commodities within the fold of a
legislation or remove it. The Act may contain some
of the subjects in a schedule annexed to it, but to
bring in flexibility and ensure the suitability of the
legislation for all contingencies in the future the
legislation delegates the power to the executive
authorities to include or exclude items from the
schedule.
In Edward Mills Co. Ltd. V. State of Ajmer AIR
1955SC 25 the SC analyzed the scope of the power
Of inclusion in light of the Minimum Wages
Act, 1948.
In case of Jalan Trading Co. v. Mill Mazdoor
Union AIR 1967 SC 691 the Supreme Court was
required to analyze the power of Central
Government to exempt certain establishments
from the purview of the Payment of Bonus Act
1965 under Section 36 of the Act.
The Removal of Difficulty Clause is popularly
referred to as the Henry VIII clause in the
English Administrative Law.
The term Henry VIII clause popularly refers to
“a provision in a bill which enables primary
legislation to be amended or repealed by
subordinate legislation with or without further
parliamentary scrutiny.
In the course of delegation the legislature
sometimes enables the executive to make
minor
modifications or alterations in legislation in
course of implementaiton of the Statute.
In Harishankar Bagla v. State of Madhya Pradesh
the constitutionality of Section 6 of Essential
Supplies Act, 1946 was challenged on the ground
of excessive delegation. It was argued that Section
6 empowered the Central Government with the
power of Repeal.
It provides that ‘any order made under Section 3
shall have effect notwithstanding anything
inconsistent therewith contained in any enactment
other than this Act or any instrument having effect
by virtue of any enactment other than this Act.’ SC
declared the constitutional.
A statute may confer power on the executive to
modify the statute or any provisions contained
in it. Conferring of such powers is deemed
necessary to bring in flexibility and ensure
proper application of the laws through
necessary adjustments, but there is an equal
need to ensure control over the exercise of
such powers to prevent any abuse of such
powers.
In In Re: Delhi Laws Act case (1951) 2 SCR 747
SC had upheld the delegation of the power of
modification as a permissible form of
delegated legislation. It held that an executive
authority was authorized to modify either an
existing or future laws but not any essential
feature, including a change in policy.