DELEGATED LEGISLATION IN INDIA : A COMPARISON

WITH UK AND USA

Project submitted to:

Mrs. Aditi Singh
(Faculty of Administrative Law)

Project submitted by:

Taruna Shandilya
Semester VI, Roll No. 180
Section B

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

1
 DECLARATION
I hereby declare that the project work entitled “Delegated Legislation in India: A comparison

with UK and USA” submitted to the "HNLU", is a record of original work done by me under the

guidance of " Mrs. Aditi Singh, Faculty of Jurisprudence, HNLU.

TARUNA SHANDILYA

SEC-B

ROLL NO.-180

2
 ACKNOWLEDGEMENTS

I feel highly elated to work on the topic “Delegated Legislation in India : A comparison with UK

and USA” because it has significant importance in the current scenario.

I express my deepest regard and gratitude for our Faculty of Administrative Law. Their

consistent supervision, constant inspiration and invaluable guidance have been of immense help

in understanding and carrying out the importance of the project report.

I would like to thank my family and friends without whose support and encouragement, this

project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing

extensive database resources in the Library and through Internet.

TARUNA SHANDILYA

SEC-B

ROLL NO.-180

3
 TABLE OF CASE

No. Name of the case Citation

1. Banwaru Lal v. State of Bihar AIR 1961 SC 58

2. Sitapur Municipality v. Prayag AIR 1970 SC 58

Narain,

3. HARLA V. THE STATE OF 1951 AIR 467

RAJASTHAN

4. Johnson v. Surgunt [1918] 1 K.B. 101.

5. Black- phool Corporation v. [1948] 1 K.B. 349

Locker

6. Falmouth Beat Construction (1950) 2 A.B. 16)

Co. Ltd. v. Howell

7. Queen v. Sheer Metal Craft [1954] 1 Q.B. 586

Ltd.

8. D. S. Gerewal v. State of 1959 AIR 512

Punjab

LIST OF ABBREVIATIONS
4
 SCC Supreme Court Cases
 AIR All India Reporter
 SC Supreme Court
 CriLJ Criminal Law Journal
 V Versus
 TN Tamil Nadu
 Ori Orissa
 Ed. Edition
 Op. cit. Opere citato
 v/ vs. Versus

LIST OF STATUTES
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 The Constitution of India, 1950
 Statutory Insurances act, 1946
 Mines Act, 1952
 Federal Registers Act, 1935
 Rules Publication Act, 1893
 Administrative Procedures Act, 1946

CONTENTS

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Declaration……………………………………………………………………………………….02
Acknowledgement…………………………………………………………………………...…..03
Table of Cases……………………………………………………………………………………04
List of Abbreviations………………………………………………………………………….…05
List of statues…………………………………………………………………………………….06
 Chapter 1 Introduction…………………….……………………..………………….08
 Research Methodology………………………….………………...……..09
 Problem......................................................................................................09
 Objectives..................................................................................................09
 Hypothesis.................................................................................................10
 Review of Literature……….……………………………..…..………...10

 Chapter 2- Delegated Legislation: An Introduction………………………….…………11

 Chapter 3- Publication of Delegated Legislation,,,,,,,,,,……………………….………..14
 Chapter 4- Statutory Requirement for publication…………..…………………………16
 Conclusion……………………………………………………………….……………....19
 Bibliography…………………………………………………………….……………….20

Chapter-1:
INTRODUCTION
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 The issue of delegated legislation has been one of the most debated issues in the domain of
legal theory because of its various implications. Scholars have consistently presented differing
and even contradicting views about delegation of power to legislate and have thus taken different
stands on the issue. While Delegated Legislation has been a widespread practice in modern times
and is almost an accepted norm, there have been contrary views. For instance Cooley has
expressed a staunchly critical view of the power to delegate. He has stated that "One of the
settled maxims in constitutional law is that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body or authority. Where the sovereign
power of the State has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself
of the responsibility by choosing other agencies upon which the power shall be devolved, nor can
it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust 1." Further it has also observed that "No
legislative body can delegate to another department of the government, or to any other authority,
the power, either generally or specially, to enact laws. The reason is found in the very existence
of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and
patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate
the trust, instead of executing it." While such positions do raise the questions about the propriety
of delegating the power to legislate by higher legislative bodies to the lower ones, the fact
remains that this has been a general practice followed in all modern democratic countries. Hence
it is important to understand what is firstly meant by delegated legislation and then analyse its
various aspects.

Research Methodology

1
Cooley's Constitutional Limitations, Volume I at page 224

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This project report is based on Descriptive Research Methodology.

Secondary and Electronic resources have been largely used to gather information and data about
the topic.

Books and other reference as guided by Faculty have been primarily helpful in giving this project
a firm structure. Websites, dictionaries and articles have also been referred. Footnotes have been
provided wherever needed, either to acknowledge the source or to point to a particular provision
of law.

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

Objectives
1. To study the concept of Delegated Legislation and necessary checks on the power.

2. To study what is the concept of publication of delegated legislation and its importance.

3. To study what are the types of publication of delegated legislation.

4. To study what are the statutory requirements for publication.

 In United Kingdom.
 In US.
 In India.

Hypothesis

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Natural justice requires that before a law can become operative it must be promulgated or publis
hed. It must be broadcast in some recognizable way so that all men may know what it is; or
at least there must be some special rule or regulation or customary channel by or
through which such knowledge can be acquired with the exercise of due and reasonable
diligence.

Review of Literature
1. JUSTICE C.K. THAKKER, LECTURES ON ADMINISTRATIVE LAW (5 th
Edition, Eastern Book Company, Lucknow)
This book explains the concept of delegated legislation and its need in 21 st century in
different countries like India, US and UK. It also explains about the importance of
delegated legislation in India briefly.

2. C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book

Company), 2008
The concept of procedural ultra vires has been discussed in this book which explains
that when a subordinate legislation fails to comply with procedural requirements
prescribed by the parent act or by general law, it is known as procedural ultra virus.
Publication of delegated legislation has also been explained in this book in a detailed
manner.
3. Kailash Rai, Administrative Law, Allahabad Law Agency
Types of publication which are ante-natal and post-natal have been explained in this
book elaborately.

Chapter 2:

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 DELEGATED LEGISLATION: AN INTRODUCTION

What Is Delegated Legislation?

Delegated legislation (also referred to as secondary legislation or subordinate legislation or

subsidiary legislation) is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the legislature's
authority. Often, a legislature passes statutes that set out broad outlines and principles, and
delegates authority to an executive branch official to issue delegated legislation that flesh out the
details (substantive regulations) and provide procedures for implementing the substantive
provisions of the statute and substantive regulations (procedural regulations). Delegated
legislation can also be changed faster than primary legislation so legislatures can delegate issues
that may need to be fine-tuned through experience.

Legislation by the executive branch or a statutory authority or local or other body under the
authority of the competent legislature is called Delegated legislation. It permits the bodies
beneath parliament to pass their own legislation .It 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

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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.

Need For Delegated Legislation

The process of delegated legislation enables the Government to make a law without having to
wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the
authority to modify or alter sanctions under a given statute or make technical changes relating to
law. Delegated legislation plays a very important role in the process of making of law as there is
more delegated legislation 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.

Delegated Legislation is important because of several reasons. They are-

1. Delegated Legislation reduces the burden of already overburdened Legislature by

enabling the executive to make or alter the law under the authority of Legislature. Thus,
this helps the Legislature to concentrate on more important matters and frame policies
regarding it.

2. It allows the law to be made by those who have the required knowledge and experience.
For instance, a local authority can be permitted to enact laws with respect to their locality
taking into account the local needs instead of making law across the board which may not
suit their particular area.

3. The process of delegated legislation also plays a significant role in an emergency

situation since there is no need to wait for particular Act to be passed through Parliament
to resolve the particular situation.

4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting legislation, which makes it
flexible and very useful to law-making. Delegated legislation is, therefore, able to meet

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 the changing needs of society and also situations which Parliament had not anticipated
when they enacted the Act of Parliament.

Delegated Legislation: Position under Constitution of India

The Constitution of India gives powers to the Legislature to delegate its functions to other
authorities, to frame the policies to carry out the laws made by it. In the case of D. S. Gerewal v.
State of Punjab,2 the Supreme Court held that Article 312 of the Constitution of India deals with
the powers of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in the
words of Article 312 which takes away the usual power of delegation, which ordinarily resides in
the legislature.

The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean
that there is no scope for delegation in law made under Article312…. The England law enables
the Parliament to delegate any amount of powers without any limitation. On the other hand in
America, like India, the Congress can delegate only some of its functions. Thus, it does not have
unlimited or uncontrolled powers. Thus, India allows for delegated legislation but in a defined
and controlled manner with certain restrictions.

2
1959 AIR 512

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 CHAPTER 3:

PUBLICATION OF DELEGATED LEGISLATION

The word ‘Publication’ refers to the action of making something generally known. It comes from
the Old English word “publicatio” whose origin can be traced back to “publicare”, which means
to make public.3

The simple concept which ascertains the publication of delegated legislation revolves around two
important principles. Firstly, it is to provide the parties which are going to be affected by the said
legislation an opportunity of being heard as provided by the Principle of Natural Justice,
Secondly, according to the maxim “ignorantia juris non excusat” (i.e. ignorance of law is no
excuse) and according to this rule no person can claim the ignorance or him not knowing the law
as an excuse. But this can be applied only when the public were made aware of the existence of
such law and this can be done by the means of publication hence Publication of Legislation and
Delegated Legislation has evolved and is regarded as a mandatory rule.

It is a fundamental principle of law that “ignorance of law is no excuse” (ignorantia juris non
excusat). But there is also another equally established principle of law that the public must have
access to the law and they should be given an opportunity to know the law. The very justification
for the basic maxim is that the whole of our law, written or unwritten, is accessible to the public-
in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.4

Jain and Jain rightly stated: ―it is essential, therefore, that adequate means are adopted to
publicize delegated legislation so that people are not caught on the wrong foot in ignorance of
the rules applicable to them in a given situation. The system of publication ought to be such that
delegated legislation is not only made known to the people, but it is also easy to locate as and
when necessary.

HISTORICAL BACKGROUND OF PUBLICATION

3
Referred from http://www.merriam-webster.com/dictionary/publication
4
Referred from the e-copy of Keli Vakil, Procedural Deviance of Delegated Legislation from Parent Act downloaded
from http://ssrn.com/abstract=1877247

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It is confidently asserted by many writers on constitutional or administrative law that delegated
legislation comes into operation on the date on which it is made and not on the (normally later)
date of its pub1ication. The anomalies and injustice which such a general rule is capable of
producing will be illustrated in the course of this paper, the main purpose of which will be to
demonstrate that the common law rule is quite different. It is submitted, then, that the general
common law rule is that delegated legislation does not come into force until it is published and
this is not an exception to the ordinary rule, as generally assumed, but is a limited statutory
declaration. 5

CHAPTER 4:

5
D. J. Lanham, Delegated Legislation and Publication, The Modern Law Review, Vol. 37, No. 5, Pg. 510 – 524,
referred from http://www.jstor.org/stable/1094319

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 STATUTORY REQUIREMENT FOR PUBLICATION

In The United States Of America

There was no statutory provision for the publication of the delegated legislation until the Federal
Registers Act was passed in 1935. It has established the Federal Register in which all the
delegated legislations, federal rules, regulations, orders and other documents of general
applicability and legal effects are required to be published. The provision for the publication of
delegated legislation was further strengthened by the Administrative Procedures Act, 1946. 6

Section 2 specifically deals with the publication of rules or otherwise the executive legislations
made. Sec 2 clause b specifically deals with the procedure for making a rule (i.e. the Ante-natal
publication of the legislation or rule which is to be made. This is to provide an opportunity of
being heard as provided by the Principle of Natural Justice. And Sec 2 clause deals with the post-
natal publication, which is to make the people aware of the legislation.

Section 4:

Except to the extent that there is involved (1) any military, naval, or foreign affairs function of

the United States or (2) any matter relating to agency management or personnel or to public

property, loans, grants, benefits, or contracts — 

a. NOTICE:

 General notice of proposed rulemaking shall be published in the Federal Register (unless all

persons subject thereto are named and either personally served or otherwise have actual notice

thereof in accordance with law) and shall include (1) a statement of the time, place, and nature of

public rule making proceedings;(2) reference to the authority under which the rule is proposed;

and (3) either the terms or substance of the proposed rule or a description of the subjects and

issues involved. Except where notice or hearing is required by statute, this subsection shall not
6
Kailash Rai, Administrative Law, Allahabad Law Agency, pg. 143.

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apply to interpretative rules, general statements of policy, rules of agency

organization, procedure, or practice, or in any situation in which the agency for good cause finds

(and incorporates the finding and a brief statement of the reasons there for in the rules issued)

that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public

interest. 

b. PROCEDURES:

 After notice required by this section, the agency shall afford interested persons an opportunity to

participate in the rule making through submission of written data, views, or arguments with or

without opportunity to present the same orally in any manner; and, after consideration of all

relevant matter presented, the agency shall incorporate in any rules adopted a concise general

statement of their basis and purpose. Where rules are required by statute to be made on the

record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply

in place of the provisions of this subsection7.

In The United Kingdom

The publication of delegated legislation was regulated by the Rules Publication Act, 1893until
the Statutory Instruments Act of 1946 repealed it. Section 2 and 3 of the Statutory Instruments
Act provides for the publication of delegated legislations. According to Sec 2 of

the Act, any Statutory Instrument made should be sent to the King‘s printer of Acts of the

7
C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 143
9 Ibid

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Parliament where it will be numbered, printed, published and sold to the public. Sec 3 of the Act
deals with the supplementary provisions relating to the publication of statutory instruments. The
provisions of the Statutory Instruments Act, 1946 deals only about the Post–Natal Publication.

Section 2: Numbering, Printing, Publication and Citation

1. Immediately after the making of any statutory instrument, it shall be sent to the King's
printer of Acts of Parliament and numbered in accordance with regulations made under
this Act, and except in such cases as may be provided by any Act passed after the
commencement of this Act or prescribed by regulations made under this Act, copies
thereof shall as soon as possible be printed and sold by the King's printer of Acts of
Parliament.

2. Any statutory instrument may, without prejudice to any other mode of citation, be cited
by the number given to it in accordance with the provisions of this section, and the
calendar year8.

In India

In India there is no special law which provides for the publication of delegated legislations. The
legislation has to be published in the official gazette for commencement and is needed to be
published in the mode prescribed in the Parent Act for the knowledge of the general public. With
regard to the post-natal publication, it has now become a custom to give notice and get opinions
from the people (specifically the affected or for whom the law is made).

CONCLUSION
8
Referred from the e-copy of Keli Vakil, Procedural Deviance of Delegated Legislation from Parent Act downloaded
from http://ssrn.com/abstract=1877247

18
Publication of delegated legislation is very important to protect the rights of the people and to
satisfy the principles of Natural Justice. It gives the general public an opportunity to give their
opinion thus enabling the true sovereign to take part in the law making process. It also ensures
the very important concept of Natural Rights that the person going to be affected is given a
chance to give express his view.

It also ensures that no person should be unaware of the law in force, since it cannot be claimed
as a defense. If the people are not made aware of the law, then the ordinary course of punishment
will result in injustice. As far as the status of the publication of the delegated legislation in India
is concerned, it is not codified and a standard procedure is not established but however, the
Judiciary steps in and regulates the process of publication of delegated legislation.

BIBLIOGRAPHY

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BOOKS REFERRED

1. C.K.TAKWANI, LECTURES ON ADMINISTRATIVE LAW, (LUCKNOW:EASTERN

BOOK COMPANY), 2008.
2. KAILASH RAI, ADMINISTRATIVE LAW, ALLAHABAD LAW AGENCY.

 WEBSITES REFERRED:

1. HTTP://DICTIONARY.REFERENCE.COM/
2. HTTP://EN.WIKIPEDIA.ORG/
3. HTTP://WWW.LAWTEACHER.NET/PDF/DELEGATED%20LEGISLATION.PDF
4. HTTP://WWW.MERRIAM-WEBSTER.COM/DICTIONARY/

CASES REFERRED
1. BANWARU LAL V. STATE OF BIHAR, AIR 1961 SC 58
2. GVINDLAL CHHAGGAN LAL PATEL V. THE AGRICULTURAL PRODUCE MARKET
COMMITTEE, GODHRA AND OTHERS, 1976 AIR 263
3. HARLA V. THE STATE OF RAJASTHAN, 1951 AIR 467
4. JOHNSON V. SARGUNT, [1918] 1 K.B. 101

INDIAN KANOON DOCS REFERRED

1. INDIAN KANOON - HTTP://INDIANKANOON.ORG/DOC/1113126/
2. INDIAN KANOON - HTTP://INDIANKANOON.ORG/DOC/1276331/
3. INDIAN KANOON - HTTP://INDIANKANOON.ORG/DOC/1686992/
4. INDIAN KANOON - HTTP://INDIANKANOON.ORG/DOC/302116/

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