Delegtated Legislation - An Overview PDF

DELEGATED LEGISLATION
Author(s): P. B. MUKHARJI
Source: Journal of the Indian Law Institute, Vol. 1, No. 4 (July, 1959), pp. 465-492
Published by: Indian Law Institute
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DELEGATED LEGISLATION
By
P. B. MUKHARJI»
Controversy
Delegated Legislation is an expression which covers a multitude
of confusions. It is an excuse for the legislators, a shield for the admi-
nistrators and a provocation for the Constitutional purists. It is easy
to take sides on the controversy over delegated legislation. It is
praised as a necessity and felt as inevitable in a world where social,
economic, technological, psychological and administrative speed
outstrips the spacious and placid traditional legislative ideals and
processes. It is criticised as an abdication of power by legislators and
an escape from duty imposed on them by the voters of democracy.
In England the king lost legislative power at Runnymede and Parlia-
ment lost legislative power at the stampede that followed since to
provide Government for the country through administration and
bureaucracy.
Delegated Legislation is often mistaken as a modern problem.
It is not. It is a historic question which troubled and agitated men's
minds very soon after the beginning of what we call law and legal
administration. It is not wholly a problem of democracy. It existed
and exists as a problem in every context of Government, whatever be
its ideals or its policies. Its forms have changed ; its repurcussions
have changed ; but its core remains. A brief history may set the
problem in its proper perspective.
History
Greek political theory and legal concepts as expounded by
Plato and Aristotle did not face in the small City States the complex
problems of delegated legislation in the modern age although they did
have occasion to notice whether the representative was limited or not
in his powers of representation. With the Romans, delegation was
an acknowledged problem and the Roman concept of " Delegatus
non potest delagare " was born of many tears. Its echoes still resound
in the modern decisions of the American, Canadian, Australian and
Indian Supreme Courts. Historically speaking, Lord Hewart is not
the first modern water-mark in the tide of this controversy. Its
modern origin lies in opposition to centralisation. Bentham and his
* Judge, High Court, Calcutta, and Chairman of the Law Institute's
Committee on Delegated Legislation.
466 DELEGATED LEGISLATION
disciple Chadwick were pleading for devolution

bodies could be given greater power to legisl
they chose to advocate that cause was that Loca
provided the best nursing ground for training
of too much centralisation was then the spur for
Local Self-Government and municipal administ
first occasion for delegation of legislative power
tions. The atmosphere was considerably helped
the Syndicalists with their particular ideas of self-
and organisation for different groups in soc
colonialism of the 18th and 19th centuries furth
of delegation. The next step was the introducti
of delegation, to courts and judicial procedure.
ture Acts are important land-marks in the histo
lation. Then again, the process of delegation w
rationalisation of the Royal prerogatives, the Cr
Council and. departmental Regulations. All t
history. The 20th century legal outlook opened
parliamentary sovereignty in legislation but bef
was out the world was engulfed in two Wars w
procedure and above all the legal instincts, so lab
Greeks, so scientifically enhanced by the Roman
and humanistically administered by the British
seemed to challenge and threaten the work of
whole age of jurisprudence and political philosop
overnight. Parliamentary Sovereignty tends to be o
of executive sovereignty. Austin's basic assumpt
by Goodhart, Lock's primary categories of Separ
less to separate and even practical Bentham app
The two World Wars are responsible for
increase of subordinate and delegated legislatio
emergency. These wars demanded a special sp
lerant of any time-lag between the decision and act
existing legal procedures and legal machinery w
gear. The tempting solution was found in deleg
sion or still balder objective to be executed b
charged with carrying them into effect. Emer
cept in jurisprudence and emergency legislat
feature of law-making. In this atmosphere and
the frontiers between the principles and proced
They first came as Statutory Rules and Orders b
Rules Publication Act of 1893 and later acquire
P.B. MUKHARJI 4f)7
designation of Statutory Instrumen

Instruments Act of 1946.
Parliament takes steps

The Donoughmore-Scott Committee proposed setting up of two
Standing Committees in each House of British Parliament to check
and control this tidal flood of delegated legislation. One was to
examine every Bill with the object of drawing attention to any ex-
traordinary proposal to delegate legislative authority. The other
was to scrutinise the Rules, Regulations and Orders that flowed from
the exercise of such authority. The British Scrutinising Committee
makes a general report usually once in every session of Parliament on
technical aspects of delegation. Although the British Committee has
a reputation of acting with independence and has established the
commendable convention that its Chairman is always a member of the
opposition, its influence is not what was expected primarily because
of the mechanics of parliamentary procedure by which the members
of the House usually table motions for annulment long before the
Committee makes the report and partly because in most cases the
reasons for their challenge are reasons of policy and merits which the
Committee is debarred from considering.
There is also a Committee on Subordinate Legislation in the
Indian House of the People. The first report of that Committee made
two useful recommendations, namely : -
(1) Bills containing proposals for delegation of legislative
powers should invariably be accompanied by a memo-
randum containing the details and scope of such propo-
sals ;
(2) Uniformity should be secured in the provisions delega-
ting legislative powers in various Acts.
The Speaker of the Indian Parliament followed the British practice
of appointing a member of the opposition as Chairman of the Com-
mittee on Subordinate Legislation. In a Memorandum by the
Speaker of the House of People in 1950 it was observed : -
" At the present time parliamentary control over delegated
legislation is defective for two reasons : -
(1) Legislative powers are freely delegated by Parlia-
ment without the members of the two Houses fully
realising what is being done ;
(2) Although many of the regulations made in pur-
suance of those powers are required to be laid down
before both the Houses and in fact they are so laid
there is no automatic machinery for t

scrutiny on behalf of Parliament as a w
quantity and complexity are such that i
possible to rely on such scrutiny.' *
Types of Delegation
The nature and scope of delegation in diff
varied and manifold. The language in which the
is phrased is equally varied. Attempt to seek
always succeed. A study of certain samples, h
indicate the basic and general trends. They
particularly under the following heads : -
(1) Simple statutory provision where rule-m
delegated either to the Government as su
cular officers, high or low, for carrying ou
of the Act. This rule-making power appe
of the statutes which first give general
rules to carry out the Act followed by c
powers enumerated on specific branch
tration covered by the statute. Some s
the express provision that the Rules fram
are to form part of the Act itself such as
131 of the Civil Procedure Code, Section
Companies Act, 1956, Section 78 of th
Act, 1927, Section 52 of the Indian Extradition Act
1903, Section 58 of the Damodar Valley Corporation
Act 1948, etc.
(2) Sometimes the statute lays down that the rules have to
be published in the Official Gazette before they come
into operation. Sec. 23 of the General Clauses Act
mentions the consequences where previous publication
is required by statute,1
1. Sec. 23.
Provisions applicable to making of rides of bye-law ąfter previous publication .
Where, by any (Central Act) or Regulation, a power to make rules or bye-laws
is expressed to be given subject to the condition of the rules or bye-laws
being made after previous* publication, then the following provisions shall
apply, namely : -
(1) the authority having power to make the rules or bye-laws shall, before
making them, publish a draft of the proposed rules or bye-laws for the
information of persons likely to be affected thereby ;
(2) the publication shall be made in such manner as that authority deems
to be sufficient, or, if the condition with respect to previous publication
so requires, in such manner as the (Government concerned^ prescribes.
P.B. MUKHARJI 469
(3) Very few statutes expressly

rules are to be drafted, wh
followed and what affected g
before finalising these rules.
(4) The well-known procedur
table of Parliament or Legi
some statutes. Some statute
become law on notification but there aré others which
expressly say that they are to be placed before Parliament
which will have the right to modify, such as, Sec. 10
of the National Highways Act 1956, Sec. 17(3) of the
Standards of Rates and Wages Act 1956 or Sec. 13(2)
of the Central Sales Tax Act 1956, etc.
(5) Another type of delegation occurs where there is legis-
lation by schedule or appendix giving power to add to
the appendix or the schedule given in the Act. This is
what is commonly known as Skeleton Legislation.
This can be found in such statutes as the Minimum
Wages Act, 1948 or Employee's Provident Fund Act,
1952.
(6) A far-reaching provision for delegation is sometimes

provided in the statute delegating power to exempt or
include subjects for the Act.
(7) A different type of delegation occurs where the statute
provides that the Central Government or State Govern-
ment would have powers to give directions for the proper
working of the Act.
Three Stages of Delegation

Delegation requires careful examination at three fundamental
stages of the law. The first stage is when the Bill proposes delegation
of powers to administrative and executive authorities ; at this stage
the draftsman plays a very responsible part. His draft becomes the
(3) there shall be published with the draft a notice specifying a date on or
after which the draft will be taken into consideration ;
(4) the authority having power to make the rules or bye-laws, and where
the rules or bye-laws are to be made with the sanction, approval or
concurrence of another authority, that authority also, shall consider
any objection or suggestion which may be received by the authority
having power to make the rules or bye-laws from any person with
respect to the draft before the date so specified ;
(5) the publication in the Official Gazette of a rule or bye-law purporting
to have been made in exercise of a power to make rules or bye-laws
after previous publication shall be conclusive proof that the rule or bye-
law has been duly made.
basis of the Act. Two forces operate on him

One is extraneous to him and the other is his own. He should
receive intelligible directions from his masters, parliamentar
and legislators, on the question, what and how much is to be delega
The other is his own powers of assimilation of these directions a
formulation of them in reasonably careful and unambiguous langu
Improvement can be made on the present procedure available
both the fronts. Mr. R.C.S. Sarkar, Joint Secretary and Draftsm
of the Ministry of Law in his paper on "Legislation and the Draf
man" pleads for a little fuller Cabinet Summary than at pres
forthcoming and wider use of Office Memorandum where
administrative officers work out the details before the Draft Bill is
prepared. The second stage is reached when after the Act is passed,
rules are framed to work out the delegation. At this stage, it is
necessary to be quite clear - firstly, who should be charged with the
responsibility for framing these rules and secondly, the procedure
which should be followed in devising a reasonable set of rules consistent
with the Act and with due regard to affected groups. The third
stage covers the publicity of these rules with invitation for suggestions
and objections both before making them and after making them to
leave enough room for all foreseeable corrections to be made prior to
the time these Rules acquire finality. The mechanics and control
of delegation have to cover all these three different stages.
Statutory illustrations of delegated legislation

The statutory position in India on delegation can be profitably
examined and practically illustrated by taking some specific forms
of delegation. Practical research work on delegated legislation with
reference to actual instances and forms of delegation resorted to by
Indian Statutes has hardly been undertaken in India. No intensive
and practical study appears to have been made. Cases do come up
at random before the courts but then no systematic efforts have been
made to collect even the few and infrequent judicial decisions on the
point and to present them in any methodical form. If this paper
serves to indicate even a beginning of what may be, a very practical,
useful and promising research project, then it will have more than
served its purpose.
Factories Act , 1948 - a typical example

I shall begin by examining one particular Statute as an
illustration to exemplify how delegation works in India. The
Statute which I propose to examine is the Factories Act, 1948. It
P.B. MUKHARJI 471
typifies many forms of delegated le

lative methods.
First, there is the general power to make rules under Sec. 112
of the Factories Act. It is phrased in general language stating that
the State Government may make rules providing for any "matter"
which under any of the provisions of the Act, is to be or may be
prescribed or which may be considered "expedient" in order to give
effect to the "purpose" of the Act. Although this delegation of
powers to make rules is wide, its limitation appears to be (1) first,
with regard to subject which must be a "matter" under or for the
purposes of the Act. And (2) secondly, with regard to object which
must be to give effect to the "purpose" of the Act. This delegation,
however, does not specify who under the State Government will
make the rules. This is impersonal delegation to the executive
Government.
Secondly, there is another type of delegation in this Act which

delegates power to the Central Government to give "direction" to
the State Government with regard to carrying into execution of the
provisions of the Act under Sec. 113 of the Statute. Powers to the
Executive Government to give directions are becoming a very common
type of delegation in India. The nature and character of this
• delegation to give "direction" have not yet been sufficiently investi-
gated and examined by the courtsš In a recent decision of the
Supreme Court2 on the petition of Raman and Raman Ltd., under
the Motor Vehicles Act, containing similar provision for giving
direction, the Supreme Court is reported to have said that these
"directions" are in their nature executive and do not acquire the
character of law. Many problems arise on this form of delegation.
These directions may be executive but the question remains how far
they bind the State Government as part of the law under the Statute.
For instance, under Sections 112 and 113 of the Factories Act, 1943,
can these "directions" issued by the Central Government be regarded
as "expedient" under Sec. 112 and embodied in the rules framed
accordingly by the State Government When so done, it is submitted
they acquire the character and status of law.
Thirdly, Sec. 115 of the Factories Act, provides for the
publication of rules by saying in effect that all rules made under this
Act shall be published in the Official Gazette and will not take effect
before three months from the date on which the draft of the proposed
rules is published. This period of three months may be presumed
2. Raman & Raman V State of Madras, A.I.R. 1959 S.G. 694 Imam, Sarkar
& Subba Rao JJ.
to be a period of checking the reactions and objections, if

any, to the proposed rules before they come into effect. The idea
may also be that this period of three months is given only as a period
of grace to factories to adjust themselves to the operation of the new
rules and not with a view to altering the rules or revising them after
checking any reactions or objections to such rules during this period.
The Statute does not make this clear, although reference to Sec. 23
of the General Clauses Act in Sec. 115 of the Factories Act appears
to imply the right of objection and consideration of such objection.
The fourth type of delegation which occurs under the Factories
Act is grant of power to exempt, for instance, under Sec. 50 of the
Factories Act, 1948. Under this form of delegation the State Govern-
ment may make rules exempting a factory or class or description of
factory from complying with the Statutory provisions relating to
welfare facilities under Chapter 5 of the Act. The only limitation
of this power to exempt is that it is subject to compliance with such
alternative arrangement for the welfare of the workers as may be
prescribed. Again, in Section 64 of the Act, the State Government
is given the power to exempt persons from the operation of this
Section of the Act relating to the working hours of adults under
Chapter 6 of the Statute. Under this Section, the State Government
may make rules defining such persons. The limitations of this power
provide that the exempted persons must be those who hold position
of supervision or management or are employed in confidential
position in a factory. Again, in Sec. 64(2) of the Act, powers are
given to the State Government to make rules in respect of adult
workers in a factory providing for the exemption to such extent and
to such condition as may be prescribed. The nature of, or the
limitation imposed on, these powers is with respect to the quality of
work, e.g., workers on urgent repairs or workers engaged in work
in another preparatory or complimentary work or works which are
technical or intermittent or workers engaged in making or supplying
articles of prime necessity. The exemption offered under Sec. 64(2)
of the Act is, however, only with respect to specific Sections 51, 52,
53, 54, 55 and 56 of the Statute and are also conditioned by the upper
limit as provided in Sub-section 4 relating to hours of work. A wider
power of exemption is conferred under Section 65 of the Act by
which the State Government may by written order relax or modify
the entire Section 65 of the Act relating to periods and notices of the
works for the adult. This power to relax or to modify the Statute is
limited by the nature of work or "other circumstances". But the
extent of the power to relax or modify is, in a sense, unlimited,
P.B. MUKHARJI 473
because it provides that such relaxat

"to such extent and in such manner
to such condition as it may deem
periods of work". The "extent", the "manner", the "condition"
and "other circumstances" are all unspecified and vague.
There is a fifth type of delegation under the Factories Act, 1948,
which can be illustrated by Sections 85 & 86 of the Statute. It
concerns the power to apply the whole Statute to certain premises
and the power to exempt public institutions. Under this power
the State Government by notification in the Official Gazette may
declare that all or any of the provisions of the Act shall apply to any
place where a manufacturing process is carried on with or without
the aid of power in spite of the fact that such places do not come
within the definition of Factory as provided in Section 2(n) of the Act.
It says that after the place is so declared it shall be deemed a factory
for the purpose of the Act and the owner shall be deemed to be the
occupier and any person working therein a worker. Indeed, this
is a delegation of great power. In fact, it means the delegation of the
power in respect of a particular place. The only guide or standard
laid down by the Statute for exercise of this extensive power of
delegation is that the place must be one where a manufacturing
process is carried on or is ordinarily carried on with or without the
aid of power. But no other conditions or guides or standards are laid
down. A place working with two workers with a small motor might
be faced with the entire obligation and responsibility imposed by the
Act ; whereas, a place larger than that may be exempted. This
type of delegation is of the same kind that was upheld in the leading
case of Queen v. Burahz in a different context. The power to exempt
public institution under Sec. 86 of the Act is only limited where the
purpose is for education, training or reformation. In such case, the
workshop where the manufacturing process is carried on and which
is attached to a public institution maintained for these purposes,
may be exempted from the whole or any part of the Statute.
The words may be regarded as too general, specially the word
"trained".
Five Different Types of Delegation

This particular study of the Factories Act, 1948, reveals and
illustrates at least five different types of delegation under the Statute.
The delegate always appears to be the State Government.
Delegation does not specify the person or persons on behalf of the
3. (1878) 5 I.A. 178.
State Government who will act nor does it sp

which he is to follow, in so acting. Delegation by
"the State Government by notification in the O
mean anyone including any subordinate officer
officers mean undisclosed responsibility. What
check is imposed on such subordinate officer
doubt, the State Government as such is a res
But who discharges these duties on behalf of th
ment, is a crucial question. Very often in the ro
of the Government some subordinate officers a
the notes which by sheer administrative routine
they may have, as a mere matter of form, passe
hierarchy of the administration. This is wha
delegation and is largely responsible for stra
consistent with the Act or its spirit and somet
causing avoidable hardship. I suggest that wherever there is
impersoni delegation of this nature the rank or class of officers who
are to act as the delegate should be specified.
Secondly, directive delegation by which the Central Government
is given statutory Powers to issue direction to the State Government
appears to be both illogical or irrelevant in a statute. I suggest
that this type of delegation should be discontinued. It is open to
many criticisms. In the first place, in the Constitutional structure of
India with its division of legislative lists between the State and the
Centre, it does not seem to be necessary, where the statute deals with
Parliamentary subjects, that the Central Government should take
legislative sanction for issuing executive direction to the State Govern-
ment. Either the power is there or it is not. In a centrally adminis-
tered subject, ordinary administrative and executive direction from
the Centre to the State for proper administration must always be
implied as a pattern of executive Government for the proper working
of the Act throughout the country. If the subject is not within the
competence of Parliament, then of course, no question arises, because
the statute itself or the particular statutory provision will be bad
on the ground of being ultra vires the Constitution. As the executive
directions may so alter the nature and basis of the administration,
without any provision for their publicity to inform the aflectcd
people about such directions they become worst types of delegation.
People do not know what are the executive directions ? Nor do they
know who frames these executive directions ? Nor do they know how
these executive directions come to be made ? It is suggested
that this type of delegation be altogether abolished from the Statute.
P.B. MUKHÁRJI 475
It is sometime said in favour of this

they tend to bring uniformity of admi
in India. Assuming it does, then the
purpose is that in Parliamentary Acts
of delegation should be reserved onl
and not to the State Government wi
that the State may have limited pow
tions only in ease of specified variations in local conditions.
Similarly, in the State Act with State subjects, this power of dele-
gation should be reserved only to the State Government with similar
provisions to the Central Government to exercise limited powers of
delegation on points not covered by the State delegation.
Thirdly, the power of delegation to apply or suspend or exempt
persons or subjects or area from the operation of a Statute should be
discontinued. Its sole justification is that for some special reasons
it is necessary sometimes as a practical measure. This justification
does not stand close scrutiny. This is an extensive power and in
. fact, it is not only legislation without a Legislature, but is worse. It
means that if the basic assumption of making exception is admitted
originally, then the subsequent application of the Act may also
have to be qualified or modified. But who is to judge this modifi-
cation. The legislator gets no chance. The delegate uses his
discretion or his own procedure and his own judgment of the situation
unaided by any standards except ad hoc ones that he may hit upon.
It is indefensible in a Constitutional democracy. I suggest that
instead of delegating the whole power of legislation to a delegate,
Parliament and the State Legislatures should pass in every such case
a short amending Act extending the statute to a particular area or
person or subject or exempting the same as the case may be. This
will respect local condition. At the same time, it will give the
legislator concerned a chance to see whether the Act should be
applied or suspended or modified and* if so, on what conditions.
Fourthly, it is difficult to appreciate the practical value of the
type of delegation which attempts to pacify parliamentary and
legislative conscience by providing for the procedure of laying the
rules on the Table. To my knowledge and information, no such
rules laid on the Table were ever taken up either in Parliament or
State Legislature for discussion, criticism, correction or modification.
Very often the rules are ponderous ; the legislators have no time to
look into them ; the technicalities involved in the rules are forbidding
to most. The result is nobody cares whether the rules are in fact
on the Table or not. In the legislative history of the British House
of Commons, it so happened that such a proce

on the Table was not observed for more than
committing a breach of the statutory direct
within a specified time. The members of
noticed that fact with the result that an Ind
passed three years after. Dr. Allen quotes th
" Law and Orders " on the National Fire Se
the Fire Service Emergency Provisions Act,
also not unknown in Parliament in India whe
Committee of Subordinate Legislation has re
been unusual delay of even two years in layin
and in its 2nd Report described it as a "dis
Parliamentary and the State statutes are not
to what happens if the rules are not laid
rules become law before they are laid on the
seem to imply that conclusion, then laying t
becomes a useless procedure. No Parliament
prescribe how the rules which had become
thereafter be amended except by the process
the amendment of the Act. Failure to lay
make the rules void ab initio . This is regard
a directory and not a mandatory provision
provision for laying the rules on the Tabl
Parliament or Legislature in the mind of the
the fear is found to work more harm than go
be criticised in Parliament whether such provi
or not. When they become part of the A
always be amended in a sensible and democra
such provision is there in a statute or no
appreciated is that the presence of this provis
on the Table lend to undermine the responsib
on the ground that if there be anything wron
Parliament. But as Parliament has no time it
responsibility. The result is divided responsi
perfuncteriness in rule-making. If comp
procedure of laying on the Table is thought to
next best alternative is to provide for an Af
Parliament or State Legislature as the case
rules become operative.
Delegation under the Minimum Wages Act

The Minimum Wages Act, 1948, is another
P.B. MUKHARJI 477
study of delegated legislation. Here,

retains the power of both types of de
give directions to the State Governme
of making rules under Sections 28
exemption and exception are also d
Government with power to provid
exemption or exception under Sec. 26
of delegation under this Act which r
provided under Section 27 of the Stat
attached to it, giving a list of employ
' 'scheduled employment" that the Mi
under Section 2(e) of the Act. But
Appropriate Government to add to
of the Act make provisions for fixing
Board and the procedure for revision
not open to charge of unqualified an
27 had been the subject of a Supreme Court decision4 and is
discussed later.
Delegation Under the Employees ' Provident Fund Act , 1952

A typical illustration of the kind of delegation I am considering
can be drawn from the Employees' Provident Fund Act, 1952.
Section 1(3) of the Act applies the Statute, in the first instance, to all
factories engaged in any industry specified in the first Schedule of the
Act in which fifty or more persons are employed but reserves the right
in the Central Government to apply the provisions of this Act to all
factories employing even lesser number of persons by giving two
months notice of intention to do so by notification in the Official
Gazette. The only limit upon this power to extend the application
of this Act is that it still appears to be limited to industries specified
in the first Schedule. The power to add to the first Schedule is
delegated to the Central Government by Sec. 4 of the Act, by which
"the Central Government may by notification in the Official Gazette
add to the first Schedule any other industry in respect of employees
whereof it is of opinion that the Provident Fund Scheme should be
framed under this Act." In delegating this power Parliament has
not laid down any standard or guide on which such "opinion"
should be based nor does it provide whether before such opinion is
formed it should hear or consult the industry proposed to be added.
The only check on this delegation is that the notification shall be laid
before Parliament as soon as may be after it is issued. But here again
4. Edward Mills V State of Ajmer [1955] 1 S.C.R. 735
apart from the criticisms already made of the p

before Parliament, it is clear that this procedure
particular case. The reason is that by Section
further provided that upon the notification "th
shall be deemed to be an industry specified in the fi
purpose of this Act". The result is that the mom
is issued by the Central Government the additio
the Schedule and of the Act. Therefore, the s
that the notification should be laid before Parliamen
does not afford any opportunity to revise it bef
of the Statute itself. The actual framing of t
Schemes is necessarily delegated to the Central G
of the Act, and so also the power to add or to a
scheme under Sec. 7 of the Act. Power is also de
of the Act to the Central Government by notific
Gazette, to apply the Act to an establishment w
Provident Fund in the Factory. The impact of the Act is on the
"factory" and not on "establishment" as such by reason of Sec. 1(3)
of the Act and this delegated power under Sec. 3 of the Statute even
alter this basis by extending it to an establishment.
Delegation under Employees' State Insurance Act

Extensive powers of delegation are conferred by this Act.
Sec. 87 of the Act gives power to the Appropriate Government to
exempt a factory or establishment from the operation of the Act.
Now, the only limitation with regard to such exemption is the time
limit of one year and even that may be extended. This power of
exemption is said to be "subject to such conditions as may be specified
in the notification". Nothing is said either of any standard or of any
condition or of any ground for which such exemption should be
granted. The entire field is left unmarked. Nothing is said as to
who should judge and determine such conditions as are to be specified
in the notification. This exemption can be granted by notification
in the Official Gazette. No procedure is prescribed as to what is
done before the exemption is granted and whether there is any scope
for objection to the exemption by any competing factory of the
same kind. Under Sec. 89 of the Act such exemption shall not
be granted unless a reasonable opportunity has been given to the
Corporation to make any representation it may wish to make in
regard to the proposal and such representation has been considered
by the Appropriate Government. But this provision of reasonable
opportunity to the Corporation which is the Employees' State
P.B. MÜKHARJI 479
Insurance Corporation, does not mean

to anyone else. Similar power of exe
of the Act by which the Appropriate
exempt persons or class of persons e
of the Act gives power to the Appr
of course, with the consent of the C
in the Official Gazette, any employe
factory from one or more of the provi
Sub-Delegation
The problem of Sub-delegation ma
because this Act also contains power
of the Act by which the Corporatio
given power to delegate all or any o
relation to such matters and subject
specified to any officers or authorities
Some statutes delegate powers to the
the power to Sub-delegate. Sub-del
of practical difficulty. An unspeci
Parliament at the time of the passin
under this Sub-delegation who will ha
out the Act. The actual terms of Sub
in many instances such as in Sec. 9
Insurance Act where not only the en
but even the conditions are left un
Sub-delegation I would suggest (1)
guides, (2) limiting the content of
specific conditions and occasions on which the Sub-delegate shall
function and (4) whenever there is Sub-delegation the work of the
Sub-delegate must require ultimate Written Affirmation of the
original delegate under the statute.
This is a fair sample survey of delegation with reference to parti-
cular Statutes. For reasons of space it is not possible or even perhaps
necessary to multiply instances because the types of delegation more
or less follow the patterns already examined.
Delegation in Licensing Laws

Licensing Laws very often typify different attempts at delegation.
The Statutes which very often come up before the courts for interpre-
tation in India on this point are the statutes relating to transport and
motor vehicles and the statutes relating to fire arms and in respect of
food supply. Issue of licences for cars, buses and taxis and issue of
licences for food supply, fire arms and guns

and refusal depend on delegated powers.
A. Essential Supplies Act

It will be useful to preface our remarks by
delegation which was recently held by the Su
because of a provision of the Essential Suppli
"The licensing Authority may grant, ref
or refuse to renew a licence and may
revoke or modify any licence or any term
by him under the order for reasons t
This provision was held to be void by
in Dworka Prasad Lakshminarayan v. The Sta
The Court declared this provision void by ho
unreasonable restriction on the fundamental rig
guaranteed by the Constitution. A part of
Licensing Authority has been given absolute
recording of reasons was hardly an adequ
reasons were only for the personal or subjec
Licensing Authorities and not for furnish
aggrieved persons.
The point here emphasised, however, is n
such a provision infringes the fundamental r
but how far it is a delegation which gives
standards or principles are laid down in this
refusal of licence. In fact, this kind of unlim
crucial question of delegation. The effective
can be displaced by the Licensing Authority acti
power. The question thus, arises here whether
could be delegated such powers which could n
Act.
B. Motor Vehicles Act .
The Motor Vehicles Act confers large powers of delegated legis-

lation. Cases frequently come up before the court under this Act
on the question of refusal of the State Government to grant road
permits or restritt or control road transport. Section 43 of the Motor
Vehicles Act confers power upon the State Government by notification
in the Official Gazette to prohibit or restrict throughout the State or
in any area or on any route within the State, subject to such conditions
as it may think desirable, the conveying of long distance goods traffic
5. [1954] S. C. R 808
P.B. MUKHARJI 4P,1
generally, or of prescribed classes of go

or fix maximum or minimum fares or
public carriers. The delegation lay
useful limitations, which include th
( 1 ) the advantages offered to th
by the development of motor t
(2) the desirability of co-ordinati
(3) the desirability of preventing
road system, and
(4) the desirability of preventing
among motor vehicles.
It also requires that before the St
notification it should hear the repres
and should consult the State and R
concerned. It also provides for affec
tation for cancellation or variation o
grounds.
Sec. 47 of the Act lays down the
Transport Authorities and imposes a
grant or refuse a stage carriage perm
which indicate the standards and gu
(i') the interest of the public g
(ii) the advantages to the public of
(iii) the adequacy of existing pas
the fares charged and the effec
(iv) the benefit to particular lo
(v) the operation by the applicant
(vi) in particular of unremunerat
with remunerative services;
(vii) the condition of the roads.
It also imposes upon the Regional Tran
to take into consideration, any rep
already providing road transport faci
routes or by any local authorities o
association interested in the provision
This is a useful provision for consult
examination of this power of delegat
down both general standards, such a
cular standards, such as, utility of
similar provisions are made in Section
of private contract carriage permi
Appeals from the order of the State and
to the prescribed Appellate Authorities are als

50 and 55 of the Act. Sec. 68 provides the S
with power to make rules for the purposes of
the provisions of Chapter 4 of the Act dealing
transport vehicles.
C. Indian Arms Act
Delegation under the Indian Arms Act has very frequently come
up before the courts for criticism. Sec. 17 of the Indian Arms Act
delegates power to the Central Government by notification in
the Official Gazette to make rules to determine the officers by whom,
the form in which, and the terms and conditions on and subject to
which, any licence shall be granted. Now this power does not specify
the officers nor indicate the rank below which it may not be desirabl
to go in this matter. The power is granted to the officers in very
wide and general terms. Not only the form is to be prepared by him
but the very terms and conditions on the subject to which the license
is to be granted are to be determined by him. This power of dele-
gation has been unsuccessfully challenged in courts. After granting
these general powers certain specific matters are mentioned in Sec.
17 of the Act on which rules could also be made. Sec. 18 delegates
power to the officer who granted licence or to any authority to which
he may be subordinate or to any Magistrate of a District or Commis-
sioner of Police within whose local limits of jurisdiction the licence-
holder may be found, to cancel or suspend the licence. The limitation
imposed upon the cancelling or suspending authorities is that he must
record his reasons in writing and deal with the considerations of security
of the public peace to cancel or suspend such licence. There is,
however, no condition in Sec. 18 of the Act for giving any hearing to
the person whose licence is cancelled. The rule-making power
under Sec. 17 of the Act requires that the rules should be published
and notified in the Official Gazette. No procedure is laid down for
laying these rules on the Table of Parliament nor is there any provision
for hearing before making of rules or publicising the rules and invit-
ing objection or criticism before they are made final.
How Courts Have Reacted to the Problem of Delegation

Reference to some judicial decisions to show how the Courts
have reacted to the problem of delegation may be useful.
In In re Delhi Laws Act ,6 a reference by the President under Art.
143 of the Constitution, the Supreme Court had occasion to consider
f>. [1951] S.C.R. 747
P.B. MUKHARJI 483
the power given to the State Gove

such "restrictions and modification
part thereof by means of a notifica
was divergence of views expressed
On the main question, that the esse
which means determination of legi
into a rule of conduct, there was n
On the application of that princ
delegation in each case, the differe
the maxim of Delegatus non potest de
nor the doctrine of separation o
much favour with the Bench. A
Bur ah? did not fail to haunt the j
the question of delegation in India
the express provision of the Indian
the unlimited right of delegation was
itself was disputed.
The Federal Court, in Jatindra v
the power to extend the duration of
in the Act could not be validly d
has, in Inder Singh v . State of Rajast
view. "The reason for upholding a
an outside authority to bring an A
may determine," the Court said, "i
as they may exist at a given point
then be made to operate, and that
best left to an executive authorit
The Supreme Court had occasion
v. The State of Ajmer,11 to consider S
Act, 1948. Section 27 is in the foll
"The appropriate Government af
the Official Gazette not less than thr
to do so, may, by like notification,
any employment in respect o
minimum rates of wages should be
upon the Schedule shall in its appl
be amended accordingly,"
7. (1878) 5 I.A. 178

8. [1949] F.C.R. 596
9. A.I.R. 1957 S.C. 510
10. Ibid, at 516
11. [1955] 1 S,C.R, 735
The essential features of the section are : -

(i) It is the "opinion" of the appropriate Government
which determines the matter.
(ii) It does not insist on any standard or guide by which
the opinion is to be formed.
(iii) The Preamble of the Statute is "to provide for fixing
the minimum rates of wages in certain employment."
(iv) The language of Sec. 27 appears to speak of two notifi-
cations in the Officiai Gazette for three months, one of
the intention and the other presumably of the act itself,
but does not expressly include any scope for revision of
notification. Presumably the first notification only gives
time to the industry to be affected to adjust. The law
does not provide that the opinion formed can be challeng-
ed even within any of the periods of three months for
amendment or revision.
The Supreme Court upheld this delegation by observing that
by section 27, the Legislature did not, in any way, strip itself of its
essential powers or assign to the administrative authority anything
but an acccessory or subordinate power which was deemed necessary
to carry out the purpose and the policy of the Act.
The reason given by the Supreme Court in justifying this dele-
gation is that "conditions of labour vary under different circumstances
and from State to State and the expediency of including a particular
trade or industry within the schedule depends upon a variety of facts
which are by no means uniform and which can be ascertained by
the person who is placed in charge of the administration of a parti-
cular State."
Now the language of Section 27 of the Minimum Wages Act
gives the power to add and thereby amend the Act itself. Assuming
that due to special local condition, a particular industry is added,
but subsequently, that industry either declines or developes other
special features which make it expedient that the Act should no longer
apply to it, then this delegation under Sec. 27 does not give the power
to exclude the added employment. In such a case perhaps the powers
of exemption and exception contain in Sec. 26 of the Act may be
invoked though the language of Sec. 26 does not expressly give the
power to strike out an employment from the schedule. Sec. 26(2)
of the Act, however, gives the appropriate Government for "special
reasons" again by notification to exclude application of the Act or
any part thereof to all or any class of employees in any scheduled
employment or to any locality where there is a scheduled employment.
P.B. MUKHARJI 485
This part, therefore, perhaps can b

particular case. By this power of d
operation of Sec. 27 and Sec. 26 of th
passed by Parliament may be repl
ment by an entirely different Sched
Ganga v.. Tejpur Kalibarta Co-oper
section 16 of the Assam Land & R
with the right of fishery. It provide
with the previous sanction of the State
ation declare any collection of wate
of fishery so declared shall be deem
public or by any person except as p
Sec. 155 of the Act. There is nothing
either lays down or indicates what
rules for acquisition of fishery righ
can be made; nor is there anything
policy which is empowered by Secti
relating to the granting of licence
fishery proclaimed under Sec. 16 consistent with the
Regulation. The High Court of Assam in JSfuruddin Ahmed v . the
State of Assam ,13 declared Rule 12 of the Fishery Rules ultra vires of
State Government and therefore invalid and unenforceable. Rule
12 provided "no fishery should be settled otherwise than by the sale
except by the State Government. The order of settlement passed
by the State Government, shall be final; provided that the State
Government may introduce the tender system of settlement of fishery
in place of sales by auction system whenever it is considered
necessary." The Supreme Court overruled the Assam High
Court decision in Nuruddin's case.
The question, before the Supreme Court, therefore, was whether
there was any power conferred on the State Government by these
rules to settle fisheries otherwise, than by sale, e.g., by individual
settlement without a settlement thereof by auction system or by ten
der system. In the judgment of the Supreme Court, it is said that
no fetter could be placed on the discretion of the State Government
and that State Government was the best judge to determine what
procedure to adopt for settlement of fishery rights otherwise than by
sale. The Supreme Court disposed of the case on the narrow ground
of interpretation of Rule 12 and not on the broader ground of ultra
vires and delegation.
1?. 1957 S.G.A. 208; A.I.R. 1957, S.G. 377
13. A.I.R. 1956, Assam, Page 48.
In Bhatnagar & Co. Ltd., v. the Union of India ,

considered the Imports and Exports Contro
purported to continue for a limited period to
imports and exports which had already been
of India Act and the rules framed thereunde
held that the legislation which authorises the
amount to delegation, because, the general pol
safety and maintenance of public order an
supplies and services essential to the life of the c
in the preamble of the Defence of India Act an
and Exports Control Act, 1947. The Suprem
"The challenge to the validity of the legisl
delegated legislation often presents problems
solution. The recent history of judicial deci
that though there is a considerable diverg
approach to the question of dealing with such
ciple may be said to be fairly well settled. The
legislation which is conditional, properly so c
guished from legislation which is delegated
The challenge in that case was that the I
Control Act, 1947, did not lay down any p
guidance to the delegate while it relegated
the Statutory provision to him. The Supr
challenge by reference to the preamble and t
of the Act and found that the questions of p
decided by the Legislature. The Supreme Co
relied on its previous decision in Hari Shanka
Madhya Pradesh ,16 where Sections 3 and 4 o
Temporary Powers Act, 1946, were attacked as ult
of undue delegation of legislative power. The
observed : -
"The Legislature must declare the policy of law and legal prin-
ciples which are to control any given cases and must provide a stan-
dard to guide the officials or the body in power to execute the law.
The essential legislative function consists in the determination of
choice of the legislative policy and of formally enacting that policy
into a binding rule of conduct."
In Hari Shankar Boglds case also the supreme Court upheld
the Statute on the ground that principle of the maintenance or
14. [19571 S.C.A. 810; A.I.R. 1957 S.C. 478
15. [19571 S.C.A. at 822.
16. [1955] I.S.G.A. 38 [1955] I.S.G.R. 380
P.B. MTJKHAKJI 487
increase in supplies of essential comm

able distribution and availability at fa
and/or it was a sufficient guide to the C
ing its power under Sec. 3 of the Essen
Act, 1946.
In Raj nar ain Singh v . The Chairman, Patn
the Supreme Court unanimously held t
& Orissa Municipal Act, 1922, ultra vire
fication effected an essential change in
Act. Section 3(1) (f ) empowers the
any section it chose and exend it to Pat
modifications" as it thought fit. Section
guarantee that no municipality compet
a locality without giving its inhabitant
of being given an opportunity to obje
subjected the residents of the Patna
without observing the formalities im
the Court held that the notification t
conferred by section 3(1) (f ) .
Much of the discussion on delegated
and legal world has an air of unreality
Government and simple legislation wh
knew and were expected to know exac
the statute. Delegation today has bec
sary evils of modern legislation on the
of administration. The better legal op
ideal of the perfect law where all the
see that such delegation, should not b
necessary. The error in the world of
caused by the desire to classify and str
delegation. It is not often realised th
laid down to cover different forms of
considerably not only because of the s
because, of the imperceptible and inart
ing in the modern world that the mode
democracy are not always the final co
Legislatures on the subjects dealt ther
as testing instruments by which socia
and moulded as the Act continues to o
It is, therefore, becoming increasing
and radical outlook for judging and
17. [1955] 1 S.C.R. 290.
General principles that legislative policy a

delegated or that the standard and guide s
not going to be of much practical value. Dele
judged on three' major grounds in the light o
have drawn from the Statutes : -
(i) The first ground is to examine delegation of the power
to determine the condition or contingency under which
a statute shall be operative ;
(ii) The second ground is to examine the delegation to
operate or suspend or extend or modify the statute or
any provision thereof;
(iii) The third ground is to examine the delegation of the
power to make rules and regulations;
(iv) The fourth ground is to examine the delegation of the
power to ascertain facts and to apply and administer
standards which is increasingly resorted to in Tariff
or Fiscal Statutes. It is very often said that the
Legislature, for instance, may lay down the principle
and the rate according to which duties are to be
levied and then leave it to an external authority
to determine whether a particular article or mer-
chandise is dutiable and therefore, this is not the
delegation of the power of taxation in the modern
complex fiscal administration. This proposition cannot
be conceived in the abstract. It must be read and
applied in terms of the subject-matter. Determination
of that subject matter is, therefore, closely co-related to the
power of taxation because by random and arbitrary
decision whether an article is dutiable or not or whether
an article is dutiable under a particular item or not, the
whole basis and principle of taxation can be altered or
modified so radically as to go beyond the original intent
of the statute. The .power of taxation is a practical
and not a theoretical power. It is unwise to dismiss
the situation merely as a delegation of the power for
execution of the policy of the Act.18 The delegation
of power to make rules can be checked by testing the
rules framed with reference to the terms of the statute.
But the delegation to ascertain facts and administer
18. cf. Mercantile Co. Ltd. v. Asstt . Collector of Custom , 62 C.W.N., page 661.
In this case I had the occasion to point out how by changing the base of facts the
importer was taxed more than 300%.
p.B. mükhakji 489
standards carries with it more drastic and uncontrolled

power than is ordinarily realised and it is therefore
necessary to check and control this particular power of
delegation. It raises somewhat similar problems where the
power to apply a law upon certain conditions and conting-
encies is delegated. Unless these conditions and conting-
encies are reasonably specific such delegation is also open
to the same criticisms in spite of decisions which draw
their descent and inspiration from Queen v. Bur ah. 19
Nobody seems to have yet questioned the principle why
outmoded systems of colonial legislation should be applied
to modern Parliaments and modern representative demo-
cracies with far more effective machinery than what the
Government used to have in the days of Queen v. Buraiu
Colonialism depended on the man on the spot. The
man on the spot today is the omnipresent representative
democracy with a vast net work of legal representation
from different constituencies in Parliament and State
Legislatures and a representative from each constituency.
It is submitted that the whole basis of the decision of
Queen v . Burah has disappeared in this modern
context.
The delegation of the entire procedure so frequently resorte

to in modern statutes demands much closer examination than it
has received so far. The doctrine of principles and standards can
be usefully imported to give practical relief in this type of delegation
which involves delegation of procedure. Some principles and some
standards of the procedure itself should be laid down instead of com-
mitting the entire procedure to the rule-making authority. It is,
of particular, importance not merely in fiscal Statutes, but also in
criminal jurisprudence. To the ordinary citizen, the procedure
is very often more important and more touching than the general
principle. It is suggested that the principles of prescribing standards
should also be introduced wherever there is delegation to ascertain
facts.
Problem of Delegated Legislation Re-stated.

In the realm of applied jurisprudence the difficulty lies not in
the theoretical test that the delegation is to be judged bad when no
principle or guide is laid down in the Act. That is well accepted and
19. [1879] 5 I.A. 178
well settled. The real difficulty lies in the pra

this test. The question is whether the mainten
and safety or maintenance of essential supplie
by themselves be a sufficient guide to the deleg
in implementing that policy. Here, the questio
pushed to such an extreme that it may infr
principle. To illustrate the difficulty I shall po
it be enough guide in a statute if it only conta
this : -
"This Act is called the Public Welfare Act. The State
Government will have the power to make rules for impro-
ving the welfare and conditions of the people of India and
giving effect to this Act."
One ventures to submit that the adumbration of the gener
principle of public .welfare will not save such delegation from b
bad. The delegate does not know what exactly is the guide or st
dard. The general principle or standard of public welfare of
people of India is too vague and too general a standard
to entrust on the basis of which the delegate can be clothed with
legislative function for effectuating that general purpose.
Similarly is an Act which contains nothing but one section declaring
the principle :
"An Act to improve education in India and giving powers to
the State Government to make rules for giving effect to that purpose."
Such instances can be multiplied. The tendency to generalise is
symptomatic of the modern age of shirking labour and responsibility
for thinking out lines of action. A large responsibility, therefore,
lies on the courts and administration to approach the problem of
delegation not with the philosophical attitude of discovering vague
general principles of laying down maxims of standards or guides,
but to define actual practical limits to such general theories. It can
be done only by the hard way of examining specific problems and not
by the soft way of indulging in general philosophy. What is needed
on this branch is not ideology but methodology.
That principle or guide must be laid down in the statute is the
first axiom by which to test or judge delegation. The second test
is that the delegation is not saved by mere enunciation of a general
principle or standard. The standard must be specific. This does
not certainly mean that the specific standard has to be exactly and
precisely framed, for then there would be no occasion for delegation
at all. But this test insists that this specific standard must relate to
certain conditions and limits which should outline the arena within
P.B. MUKHÀBJI 491
which the delegate must work with

should not be permitted to go.
Reforms Suggested
(l)(a) Terminological consistenc
visions of the Act where po
Executive.
(b) A fuller Cabinet Summary for the draftsman and more
use of the Office Memorandum of the administrative
officers when drafting clauses for delegation.
(2) Abolition of all delegation to extend, amend or exempt
the operation of the statute. Should such power be in
any extreme cases needed, then the relevant statute (a)
should lay down specific conditions and standards on
the basis of which the power is to be exercised and
(b) must always insist on the condition of previous
publication of the rules. On this branch it is sub-
mitted the better alternative is to pass a short amending
Act whenever extension, amendment or exemption is
intended, so that Parliament's attention is effectively
focussed.
(3) Abolition of all powers of delegation to the Executive
Government to issue directions for the purposes of working
of the Act. Legislative sanction for federal government
to issue executive directions to the State Government
should not find a place in a statute.
(4) Abolition of the useless procedure of laying the rules on
the Table of Parliament or the State Legislature. The
general American procedure on this point is more sensible
and it does not provide for laying the rules on the Table
unless on a specific subject there is a particular demand. 20
If complete abolition of the procedure of laying on the
Table is thought to be too radical, then the next best
alternative is to provide for an Affirmative Resolution
of Parliament or State Legislature as the case may be
before these rules become operative.
(5) Wherever delegation is by the rule-making power
such rules should always require previous publication
20. See, Carr, Delegated Legislation in the United States , 25 Journal of Comparative
Legislation and International Law (3rd series) 47; Benjamin, Adminis-
trative Adjudication in the State of New Tork (Report) ; Report of the
Wisconsin Legislative Council on Administrative Bule- Making.
492 DELEGATE» LEGISLATION
with facilities offered by Sec. 23 of the

Act before they become operative or re
the Act. It is suggested that besides pub
Official Gazette which often goes unno
cation should be supplemented by cir
Chambers of Commerce or other Associ
or interests who are going to be affecte
and summary advertisements in the new
(6) Impersonal delegation should genera
rank or class of officers who should act
(7) Wherever there is Sub-delegation, the
delegate must require ultimate Written
the original delegate under the statute.
(8) Delegation occurring in skeleton leg
reformed on the following lines : -
(a) Change of Schedule or Appendix
should be made generally on the p
Ejusdem Generis as one of the conditio
the Schedule or Appendix.
(b) Such change should never come in
diately upon notification but must alw
ed by the condition of previous pu
right of objection.
(9) When there is any delegation of proced
should lay down (a) the basic features of
(b) requirement of Publicity, (c) right o
representation and (b) right of hearing
permitting the entire procedure to be i
by the delegate should be discontinue
(10) Delegation of power to determine
contingency under which the statute
should be abolished in the present age.
(11) Delegation of power to ascertain f
and administer standards should also lay
conditions and standards as well as the condition of
publicity for ascertainment of such facts.

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DELEGATED LEGISLATION

disciple Chadwick were pleading for devolution

designation of Statutory Instrumen

Parliament takes steps

there is no automatic machinery for t

(3) Very few statutes expressly

(6) A far-reaching provision for delegation is sometimes

Three Stages of Delegation

basis of the Act. Two forces operate on him

Statutory illustrations of delegated legislation

Factories Act , 1948 - a typical example

typifies many forms of delegated le

Secondly, there is another type of delegation in this Act which

to be a period of checking the reactions and objections, if

because it provides that such relaxat

Five Different Types of Delegation

State Government who will act nor does it sp

It is sometime said in favour of this

of Commons, it so happened that such a proce

Delegation under the Minimum Wages Act

study of delegated legislation. Here,

Delegation Under the Employees ' Provident Fund Act , 1952

apart from the criticisms already made of the p

Delegation under Employees' State Insurance Act

Insurance Corporation, does not mean

Delegation in Licensing Laws

licences for food supply, fire arms and guns

A. Essential Supplies Act

B. Motor Vehicles Act .

The Motor Vehicles Act confers large powers of delegated legis-

generally, or of prescribed classes of go

to the prescribed Appellate Authorities are als

C. Indian Arms Act

How Courts Have Reacted to the Problem of Delegation

the power given to the State Gove

7. (1878) 5 I.A. 178

The essential features of the section are : -

This part, therefore, perhaps can b

In Bhatnagar & Co. Ltd., v. the Union of India ,

increase in supplies of essential comm

General principles that legislative policy a

standards carries with it more drastic and uncontrolled

The delegation of the entire procedure so frequently resorte

Problem of Delegated Legislation Re-stated.

19. [1879] 5 I.A. 178

well settled. The real difficulty lies in the pra

which the delegate must work with

with facilities offered by Sec. 23 of the

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