INTERNATIONAL CONFERENCE

ON
TRANSPARENCY & ACCOUNTABILITY IN JUSTICE ADMINISTRATION
SYSTEM: CHALLENGES AND SOLUTIONS
24-25 SEPTEMBER, 2016

“DELEGATED LEGISLATION IN RELATION TO THE INDIAN

CONSTITUTION”

-ANWESH PANDA
REGISTRATION NO. P04/2416A
TRANSPARENCY INTERNATIONAL

1
About The Conference

It is well known that lack of good governance or corruption destroys lives and communities and
undermines countries and governance institutions such as the Judiciary, the Executive and the
Legislature. It generates popular anger that threatens to further destabilise societies and
exacerbate violent conflicts. Lack of Transparency and accountability in governance or
Corruption leads to failure in the delivery of basic services like education or healthcare. People
have lost faith in the law and order agencies due to large scale of corruption. The contemporary
challenge that is posed to everyone, is, how to conquer the menace of corruption in India. What
are weapons/methods that can be utilised to surmount the evil of corruption or lack good
governance?

On May 09, 2011, India became the 152nd country to ratify the United Nations Convention
Against Corruption, 2003 which was originally adopted by the UN General Assembly on
October 31, 2003, and entered into force on December 14, 2005. India’s ratification is
characterized as a reaffirmation of India’s commitment to fight corruption and to undertake
vigorously administrative and legal reforms in the form of the Judicial Appointment

Commission Law, Judicial Accountability and Standards Bill, 2011, etc, for the promotion of
quality of legal services and speedy and economical justice.

The Justice Administration System, which includes two main stake holders as The Bar and
Bench, is responsible for providing speedy and economical justice to people as a Constitutional
Mandate. The Apex Judiciary of India and other nations across the World, have also recognised
speedy and economical justice as an integral part of human rights as well as basic fundamental
rights under various national and international instruments. But the ground realities depict a
deplorable state of access to justice for poor and down trodden people in developed and
developing countries.

There is huge pendency of cases before various judicial forums. Access to justice has become a
costly and time consuming process for poor people. People in majority, due to lack of good

2
governance or corruption or manipulation of justice administration system by the rich and
influential people in power, have lost faith over the Justice Administration System. Legal aid
Services System have also failed to provide for the quality services to the beneficiaries. All the
Major stakeholders such as the Bar and Bench due to various contributory factors in their
governance, have not come up to the expectations of common men.

There is an urgent need for ensuring transparency and accountability in the functioning of the
Justice administration System across the globe so that the objective of socio-economic
development of people can be achieved. A good and transparent justice administration is vital for
citizens and require an effective justice delivery system as an instrument of good governance and
corruption control.

3
 CONTENTS

CONTENTS....................................................................................................................................4

INTRODUCTION.........................................................................................................................5

DEFINITION.................................................................................................................................7

REASONS FOR GROWTH OF DELEGATED LEGISLATION..........................................9

DELAGATED LEGISLATION IN INDIA...............................................................................12

CONTROL MECHANISM OF DELEGATED LEGISLATION IN INDIA:........................15

LIMITATIONS TO DELGEATED LEGISLATION...............................................................16

GENERAL PRINCIPLES...........................................................................................................17

CONCLUSION..............................................................................................................................18

4
 INTRODUCTION

According to the traditional theory, the function of the executive is to administer the law enacted
by the legislature, and in the ideal state the legislative powers must be exercised exclusively by
the legislature who are directly responsible to the electorate. Apart from the pure administrative
function executive also performs legislative and the judicial function also. In England
theoretically it is only parliament, which can make laws. Even in the United States of America
where the doctrine of the delegated legislation has not been accepted in principal, in practice the
legislature has entrusted legislative powers to the executive. Administrative legislation met with
a rapid growth after World War II and in India during 1973 to 1977.1

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.

Though, our constitution was based on the principal of separation of powers, a complete
separation of powers was not possible hence it maintained the sanctity of the doctrine in the
modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other
hand there are several provisions where the executive has been granted the legislative powers.
For example the legislative powers of the president under the Indian Constitution are
conspicuous. the president has the power to promulgate the ordinances and unrestricted power to
frame regulations for peace progress and good government of the union territory. 2 The Supreme
Court of India has also upheld the delegation of legislative powers by the legislative to the
legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration
Committee3.

1
Monica Chawla, Delegation Of Legislative Powers, (New Delhi: Deep & Deep Publications Pvt.
Ltd) 2007 p 56.
2
Article 240 of the Constitution of India
3
AIR 1954 SC 569 : (1955) 1 SCR 290
5
 DEFINITION
“It is sometimes said that parliament makes the laws. It is true that parliament makes the laws
if by this we mean that parliament has an essential role in the creation of acts; but looking at the
whole legislative process, it would perhaps be more realistic to say that the Government makes
the laws subject to prior Parliamentary consent.”

 Griffith4

It means that the authority making the legislation is subordinate to the legislature. The legislative
powers are exercised by an authority other than the legislature in exercise of the powers
delegated or conferred on them by the legislature itself. This is also known as ‘subordinate
legislation’, because the powers of the authority which makes it are limited by the statue which
conferred the power and consequently, it is valid only insofar as it keeps within those limits. It
includes all the bye-laws, rules, regulations, orders, etc., following are some examples:5
- The object of the Minimum Wages Act, 1948 is “to provide for fixing minimum wages in
certain employments.” This Act is applied to the employments mentioned in the schedule.
But the central Government (executive) is empowered to add any other employment to the
Schedule if, ‘in the option of the Government’ the Act should apply.
- Similarly, The Essential Commodities Act, 1955 enumerates certain commodities as
‘essential commodities’ under the Act. But the list given in the statute is not exhaustive and
the Central Government is empowered to declare any other commodity’ and to apply the
provisions of the Act to it.

The statue enacted by the legislature conferring the legislative power upon the executive is
known as the ‘Parent Act’ or ‘Primary Law’ and the rules, regulations, bye-laws, orders, etc…
made by the executive in pursuance of the legislative powers conferred by the legislature are
known as subordinated laws or subsidiary laws or ‘child legislation.’

4
C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 60
5
S.P.Sathe, Judicial Activisim In India (New Delhi: Oxford University Press) 2002 p 10.
6
 ‘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.

-Justice Mukherjee6

6
C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 60
7
 REASONS FOR GROWTH OF DELEGATED LEGISLATION

Many factors are responsible for the speedy growth of delegated legislation in India. The
traditional theory of 'laissez faire' has been given up. As earlier India was a 'police State' but now
it has become a 'welfare State'. Because of this radical change in the way of life as to the role to
be played by the State, its functions have increased. Consequently, delegated legislation has
become essential and inevitable.

The factors responsible for the growth of delegated legislation are7:

(a) Pressure upon Parliamentary time

Due to the expanding horizons of State activity, the vastness of legislation has
increases so much that it is not possible for the legislature to give satisfactory time
to discuss all the matters in detail. Therefore, legislature formulates the general
policy i.e. the framework or the basic outline and empowers the executive to fill in
the details by issuing necessary rules, regulations, bye-laws, etc. 8 In the words of
Sir Cecil Carr9, delegated legislation is "a growing child called upon to relieve the
parent of the strain of overwork and capable of attending to minor matters, while
the parent manages the main business". If the 525 parliamentarians are to focus on
every minuscule legislative detail leaving nothing to subordinate agencies the
annual output may be both unsatisfactory and negligible.10

(b) Technicality

Sometimes, the subject-matter on which legislation is required is so technical in

nature that the legislator, who is a common man, cannot be expected to make laws

7
Delhi Laws Act, 1912, in Re, AIR 1951 se 332: 1951 SCR 747; Municipal Corpn. of Delhi v.
Birla Cotton Mills, AIR 1968 SC 1232.
8
Garner, Administrative Law (London: oxford university press ) 1985 p. 49
9
Cecil Carr, Delegated Legislation (Greene Street: University of Michigan Library press) 1921 p
2.
10
Avinder Singh v. State of Punjab, (1979) 1 see 137: A1R 1979Se 321.
8
 in that area, the support and help of experts is then required. For instance, when the
problem is related to gas, atomic energy, drugs, electricity, etc.

(c) Flexibility

At the time when legislative enactments are done, it is impossible to predict all the
contingencies, and some provision is required to be made for these unforeseen
situations demanding difficult action. For that purpose, in many statutes, a 'removal
of difficulty' clause is found which empowers the administration to overcome
difficulties by exercising delegated power.11

(d) Experiment

The practice of delegated legislation enables the executive to experiment. The

method permits rapid utilization of experience and implementation of necessary
changes.

(e) Emergency

In the time of emergency, quick and decisive action is required to be taken and at
the same time it is to be kept confidential. For example in times of war and other
national emergencies, such as aggression, break down of law and order, strike,
etc. The legislative process is not equipped to provide for urgent solution to meet
the situation. Hence there is need for delegation of power and the executive is
delegated the power to make rules to deal with such situations.

(f) Complexity of modern administration

The complexity of modem administration and the spreading out of the functions
of the State to the economic and social sphere have made it necessary to resort to
new forms of legislation and to give wide powers to various authorities on
suitable occasions. By resorting to traditional legislative process, the entire object
may be frustrated by vested interests and the goal of control and regulation over

11
C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 68.
9
 private trade and business may not be achieved at all. The practice of empowering
the executive to make subordinate legislation within the prescribed sphere has
evolved out of practical necessity and pragmatic needs of the modern welfare
State.12

12
Ajoy Kumar Banerjee v. Union of India , (1984) 3 see 127: AIR 1984 SC 1130.
10
 DELAGATED LEGISLATION IN INDIA
Post-Constitution Period

 In the case of Delhi Laws Act, 191213 which was the first leading case decided by the
Supreme Court on delegated legislation after the Constitution came into force. In this
case a reference was made to the Supreme Court by the President of India under Article
143 of the Constitution in the following circumstances:

The Central Government was authorised by Section 2 of the "Part 'c' States (Laws) Act, 1950" to
extend to any "Part 'C' State with such modifications and restrictions as it thinks fit, any
enactment in force in a "Part 'A' State";' and while doing so, it could repeal or amend any
corresponding law (other than a Central Act) which might be in force in the "Part 'C' State". The
main point of contention was whether the legislature in India could be permitted to delegate its
legislative power. The provision was held valid but it was subject to two limitations-

(i) The executive cannot be authorised to repeal a law in force and thus, the provision
which empowered the Central Government to repeal a law already in force in the Part
C State was bad; and

(ii) By exercising the power of modification, the legislative policy should not be changed; and
thus, before applying any law to the Part C State, the Central Government cannot change the
legislative policy.

The importance of the Delhi Laws Act, Re, cannot be under-estimated inasmuch as, on the one
hand, it permitted delegation of legislative power by the Legislature to the Executive; while on
the other hand, it demarcated the extent of such permissible delegation of power by the
Legislature.

In this case, the President of India had forward three tests which define or limit the scope of
delegated legislation and functions. They are :-

13
AIR 1951 SC 332: 1951 SCR 747
11
The legislative authority can so delegate its function if the delegation can stand three tests,14
(1) it must be a delegation in respect of a subject or matter which is within the scope of the
legislative power of the body making the delegation.
(2) such power of delegation is not negatived by the instrument by which the legislative body is
created or established, and
(3) ) it does not create another legislative body having the same powers and to discharge the
same functions which it itself has, if the creation of such a body is prohibited by the instrument
which establishes the legislative body itself.

The power of delegation is implicit and included in the power of legislation. This being the
touch-stone for not rendering the respective Acts ultra-vires. The same authority to which the
powers are delegated are also subjected to the above-stated tests.

 Edward Mills Co. Ltd. v. State of Ajmer 15, in this case the Schedule to the Minimum
Wages Act, 1948, contained a list of industries to which the Act was made applicable by
Parliament, but the appropriate Government was authorised to add any other industry to the said
Schedule. The matter of application of the provisions of the Act to any industry was left to the
'opinion of the Government' but no norms were laid down for the exercise of such discretion.
The Supreme Court, however, upheld the validity of the Act. According to the Court, the
legislative policy was apparent on the face of the Act to fix minimum wages to avoid the chance
of exploitation of labour. 'The test for selecting industries to be included in the Schedule, which
the court propounded, was nowhere mentioned In the Act but was formulated by the Court itself
to uphold the Act' .16

14
Raunak Jain, ‘The Power Of Delegation: An Inquiry’, available at
www.legalserviceindia.com/ articles’ visited on February 12, 2018.
15
AIR 1955 SC 25: (1955) 1 SCR 735.

16
M.P. Jain, Indian Constitutional Law (Nagpur: LexisNexis Butterworths Wadhwa) 1987 p 78.

12
  Hamdard Dawakhana v. Union of India. 17
was is the first case in which Central Act was
held ultra vires on the ground of excessive delegation. The Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 was enacted by parliament to control advertisement
of certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited
and authorized the Central Government to include any other disease in the list. The Supreme
Court held Section 3 invalid as no criteria, standards or principles had been laid down therein,
and the power delegated was unguided and uncontrolled. The view taken by the Supreme Court
was erroneous inasmuch as, the legislative policy had been laid down in the Preamble and title
of the Act. Certain diseases had been mentioned and the Government was empowered to include
and to bring within its purview 'any other disease'. There was nothing objectionable in such
provision and prior to this case as well as in subsequent cases, such a provision had been held
valid by the Court in a number of cases.18

17
1960 AIR 554 1960 SCR (2) 671
18
Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 se 25
13
 CONTROL MECHANISM OF DELEGATED LEGISLATION IN INDIA:
 Judicial control: the courts have the power to consider whether the delegated legislation is
consistent with the provisions of the Parent Act. The validity of the legislation can be
challenged on the ground of ultra vires i.e beyond the competence of the legislature. The
courts have the power to declare a parent Act as unconstitutional on the ground of
Excessive Delegation or if it is against the scheme of distribution of Legislative powers
under Art.246 of the constitution19. Even if the Parent Act is constitutional but if the
delegated legislation emanating from it comes in conflict with the provisions of the
constitution then is held unconstitutional.

 Parliamentary control: Every delegate is subject to the authority and control of the
principal and the exercise of delegated power can always be directed, corrected or
cancelled by the principal. Hence parliament control over delegated legislation should be
living continuity as a constitutional necessity. The fact is that due to the broad delegation of
legislative powers and the generalized standard control also being broad, the judicial
control has shrunk, raising the desirability and the necessity of parliamentary control. In
India the parliamentary control of delegated legislation is implicit as a normal
constitutional function because the executive is responsible to the parliament.20

 Publication of Delegated Legislation: The Supreme Court has held that unless the delegated
legislation is published it cannot be enforced.21

19
J.N.Pandey, The Constitutional Law of India (Allahabad: Central La Agency) 2009 p 612.
20
Available at www.lawyersclubindia.com/articles last visted on February 12,2018
21
Harla V. State Of Rajasthan, AIR 1951 SC 467
14
 LIMITATIONS TO DELGEATED LEGISLATION

It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit beyond
which delegation may not go. The limit is that essential powers of legislation cannot be
delegated. The essential legislative power consists of the determination or choice of the
legislative policy and of formally enacting that policy into a binding rule of conduct. The
legislature, therefore, may not delegate its function of laying down legislative policy to an
outside authority in respect of a measure and its formulation as a rule of conduct. So long as a
policy is laid down and a standard or limit established by statue no unconstitutional delegation of
legislative power is involved in leaving to the executive the making of subordinate rules within
the prescribed limits and the determination of facts to which the legislation is to apply.22

In Edward Mills Co. v. State of Ajmer23 it was explained where a legislature is given plenary
powers to legislate on a particular subject there must also be an implied power to make laws
incidental to the exercise on such power. It exercise of a power is included in the grant of power.

In Devi Das Gopal Krishnan v. State of Punjab 24, Subba Rao, C.J. provided another justification
for delegated legislation that the Constitution confers a power and imposes a duty on the
legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot
presumably work out all the details to suit varying aspects of a complex situation. The legislature
must necessarily delegate the working out of details to the executive or any other agency.

22
Available at www.lawyersclubindia.com/articles last visted on February 12,2018.
23
AIR 1955 SC 25 : (1955) 1 SCR 735
24
AIR 1967 SC 1895
15
 GENERAL PRINCIPLES

From various judgments of the Supreme Court the following general principles regarding
delegated legislation emerge:25

(1) The Constitution confers a power and imposes a duty on the legislature to make laws and
the said function cannot be delegated by the legislature to the executive or even to
another legislature. It can neither create a parallel legislature nor destroy its legislative
power.

(2) The legislature must retain in its own hands the essential legislative functions. The
essential legislative function consists of the determination of the legislative policy and its
formulation as a binding rule of conduct.

(3) Once the essential legislative function is performed by the legislature and the policy has
been laid down, it is open to the legislature to delegate to the executive authority ancillary
and subordinate powers necessary for carrying out the policy and purposes of the Act as may
be necessary to make the legislation effective, useful and complete.

(4) The legislative policy may be reflected in as few or in as many words as the legislature
thinks fit. It may be express or implied. It may be gathered from the history, preamble, title,
scheme, statement of objects and reasons, etc.

(5) The authority to which delegation is made is also one of the factors to be considered in
determining the validity of such delegation. However, delegation cannot be upheld merely on
the basis of status, character or dignity of the delegate.

(6) Safeguards against the abuse of delegated power including power to repeal do not make
delegation valid if otherwise it is excessive, impermissible or unwarranted.

25
C.K. Thakker, Administrative Law (Lucknow: Eastern book Company) 1996 p 103
16
 CONCLUSION

In my personal opinion, Territories being enormous, monitoring and controlling is not possible
for one administrative or executive body. Therefore it is but obvious when certain legislative and
executive functions are vested with other authorities rather than a sole central authority
exercising all functions. An example of the same being that, in case of emergency where the
safety of the Union of India is in danger, the President is given express power to suspend the
Constitution and assume all legislative powers. Similarly in the event of the breaking down of
the administrative machinery of a State, the President is given powers under Article 257 of the
Constitution of India to assume both legislative and executive powers in the manner and to the
extent found in the Article. There can be no doubt that subject to all these limitations and
controls, within the scope of its powers and on the subjects on which it is empowered to make
laws the Legislature is supreme and its powers are plenary. Hence I believe that the delegation of
powers is a must but only if it is subject to reasonable restriction. The delegation must not be
such that it takes away the very title of a subordinate authority i.e. the subordinate authority
should not do a particular act which the superior authority itself cannot do. This in deeper
meaning would support the restriction placed upon creation of a parallel legislature. No problem
therefore arises if delegated acts are done within the scope and ambit of the authority the superior
authority defines.

The current global trend is fast changing and responding to the need of powers which have to be
delegated and further sub-delegated. for this reason the Latin principle ‘delegata potestas non
potest delegari’ which in simple terms means that a delegated function or power cannot be
further delegated, is undergoing cynicism and was also disparaged as early as 1825 . It is
virtually rendered as just a principle which no one follows. However, subject to the three tests
given by the president in the Re Delhi Laws Act case. this principle may be used when prima
facie the function under question should have been carried out by that particular authority itself
and should have not been delegated due to its urgency and importance, this being my own
submission. Yet one must remain vigilant that the principle is not absolutely refuted so that it
loses its essence.

17