Dissertation submitted to VIT School of Law, VIT, Chennai in partial fulfilment of

the Requirement for the degree of Bachelor of Law.

By: -
R.NAVEKASH
16BLB1032

Under the supervision of: -

DR Subhakara Reddy

VIT SCHOOL OF LAW

VIT Chennai
[2021]

I|Page
 DECLARATION

I, R.NAVEKASH , Student of B.B.A.,LL.B (Honours), hereby declare that the dissertation

titled “Delegated Legislation & It’s Judicial Control : An Analytical Study” is submitted by
me to VITSOL, VIT, Chennai in partial fulfilment of the requirement for the award of degree of
B.B.A,LL.B (Honours) is my original work. It is further declared that all the sources of
information used in the dissertation have been duly acknowledged. I understand that the
dissertation may be electronically checked for plagiarism to assess the originality of the submitted
work.

Place: CHENNAI

Date: 30.05.2021
(Signature of Student)

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 CERTIFICATE

On the basis of declaration submitted by Mr R.Navekash Student of B.B.A.,LL. B (Honours),

I hereby certify that the dissertation titled “Delegated Legislation & It’s Judicial Control :
An Analytical Study” submitted to the VITSOL, VIT, Chennai in partial fulfilment of the
requirement for the award of the degree of B.B.A.,LL.B(Honours) has been carried out by
him/her under my guidance and supervision. I recommend it for evaluation.

Place: CHENNAI

Date: 30.05.2021

(Signature of the supervisor)

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 ACKNOWLEDGMENT

Throughout the writing of this dissertation I have received continuous support and
assistance. I would like to thank my supervisor, Dr Subhakara Reddy, whose expertise was
invaluable in formulating the research questions and methodology. Your insightful feedback
pushed me to sharpen my thinking and brought my work to a higher level. I would like to thank
you for your patient support and for all of the opportunities I was given to further my research.

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 ABBREVIATIONS

AC Appeal Case

ACJ American Communication Journal

AIR All India Reporter

Art Article

Bom Bombay

Del Delhi

Edn Edition

HL House of Lords

K.B KINGS BENCH

Maha Maharasthra

PC PRIVY COUNCIL

SC Supreme Court

p. PAGE

5|Page
 TABLE OF CASES

Cases Pg.
No.

Hamdard Dawakhana v. Union of India Arvind Singh v. State of Punjab

14

Arvind Singh v. State of Punjab

15

Jatindra Nath Gupta v. Province of Bihar.

21

Queen Vs Burah
20

Harishankar Baglav V State of M.P

25

Raj Narain Singh Vs Patna Administration Committee

25

A.K Roy Vs Union of India

21

Electricity Board V Indian Aluminium

26

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 TABLE OF CONTENTS
Chapter 1- Introduction Page No
a) Statement of Problem 9
b) Objectives 9
c) Scope 10
d) Sources 10
e) Hypothesis 11
f) Research methodology 11
g) Abstract 11

Chapter-2 Delegated Legislation 12

a) Subordinate Legislation 12
b) Definitions
c) Halsbury's Law of England 13
d) Essential Characterstics of Delegated Legislation 13

Chapter-3 Causes and Types of Delegated Legislation:

a) Pressure upon Parlimentary time 15
b) Technically 16
c) Flexibility 16
d) Experimentation 16
e) Confidential matters 17
f) Criticism of the Growth of Delegated legislation 17
Types of Delegated Legislation-
g) Rule 18
h) Regulation 19
i)Bye Law 19
j) Order 19
k) Notification 20
l) Scheme 20

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Chapter-4 Conditional Legislation and Sub Delegation

a) Privy Council and conditional legislation 20

b) Federal Court and Conditional Legislation 21
c) Supreme Court and Conditional Legislation 21
d) Liberalisation of the concept of conditional legislation. 22
e) American Supreme Court and Contingent Legislation. 22
h) Conditional Legislation and Delegated Legislation – Distinction 23
g) Subordinate Legislation 23
h) General observations 23

Chapter -5 Restraints on Delegation of Legislative Power

a) Legislative policy to be found in Essential Legislative Function 24

CHAPTER-6 Comparative Analysis of Delegated Legislation on Usa, England, India:

a) England 26
b) Usa 28
c) India 30

CHAPTER – 7 Judicial Control over Delegated Legislation

a) Doctrine of ultra vires 34
b) Circumstances 35
c) Delegated legislation in conflict with the parent act 36
d) Delegated legislation in excess of the power conferred by the parent act36
e) Where delegated legislation is ultra vires the parent act 37
f) Where delegated legislation is ultra vires the constitution 37

CHAPTER - 8 Conclusion 42.

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 DELEGATED LEGISLATION & ITS JUDICIAL
CONTROL:AN ANALYTICAL STUDY

R.NAVEKASH1

Chapter-1
INTRODUCTION

A)STATEMENT OF PROBLEM:
The problem of delegated legislation has been one of the most hotly contested topics in legal
theory. Scholars have constantly given opposing and even contradictory perspectives on
delegation of legislative power, and hence have adopted opposing positions on the matter.
While Delegated Legislation has become a common practise in modern times and is virtually
universally approved, there have been some opposing viewpoints. Cooley, for example, has
been outspoken in his opposition to the right to delegate. "One of the accepted maxims in
constitutional law is that the power granted upon the legislature to make laws cannot be
delegated by that department to create laws," he has declared to any other organisation or
authority by that department The authority must remain where the State's sovereign power has
placed it, and laws must be created by the constitutional agency alone until the constitution is
amended. The power that has been entrusted with this lofty prerogative cannot absolve itself
of responsibility by appointing other agencies to which the power will be delegated, nor can it
substitute the judgement, wisdom, and patriotism of any other body for the judgement, wisdom,
and patriotism of those to whom the people have thought proper to entrust this sovereign trust.

B) OBJECTIVES:
i)To Study the causes of Delegated Legislation and Responsible for rapid growth of delegated
legislation.
ii) To investigate Conditional Legislation, which is described as a law that establishes
regulations but does not specify when they would take effect.
iii)To Research Legislative Power Delegation Restraints, and the legislature should provide
standards or policies in the delegating Act, leaving the delegate free to carry out the policy.
iv)To Study About the Analysis of Delegative Legislation among England, USA, And India.

1
R. Navekash ,16BLB1032, VIT School of Law,VIT Chennai ,Mail Id rnavekash.ranganathan@gmail.com
Ph no 8940471205

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v)To Study About the Judicial Control over Delegated Legislation and how the complexities
and exigencies of intensive form of government, the institution of delegated legislation has
come to stay .

C) SCOPE:
The Legislature strictly restricts the scope of delegation in order to avoid hazards by providing
adequate safeguards, controls, and appeals against executive orders and judgements. The
ability of the Executive to change any provision of an Act by order must be limited to the extent
of the Act conferring such power. Of course, the power to make such a change entails some
discretion, but it is a tool to be used in support of the Act's legislative goals. Articles 245 and
246 of the Indian constitution stipulate that legislative functions will be exercised by the
Parliament and state legislatures.Legislative authority was delegated because it was thought to
be unavoidable, it was not outlawed under the constitution
D).SOURCES:
1.Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law
Agency, Faridabad, 2011.

2.Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New
Delhi, 2006.

3.Kesari, U.P.D ; Administrative Law ,15th Edition Central Law Publications ,Allahabad,2005

4.D.D. Basu 7th Edition 2006, “Administrative Law”

5.S. P. Sathe, Administrative Law, 7th Edition, LexisNexis Buttersworth Wadhwa, Nagpur.

6.Bharadvaja B (2007 ) Delegated Legislation in India Meenakshi Prakashan New Delhi

Takwani C.K. (2007) Lectures on Administrative Law. Eastern Book Company, Lucknow.

7.Delegated Legislation and Exercise of Delegated Powers in India: With Special Reference to
Customs and Central Excise Laws : Some Aspects, Somaiya Publishers, Delhi

8.Chawla P S (2007) Meaning of Delegated Legislation & Judicial Control of Delegated

Legislation, UILS Punjab University, Chandigarh.

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9.Kumar, Narender; (2011) Nature and Concepts of Administrative Law, 1st Ed., Allahabad
Law Agency, Faridabad,

10.Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University
Press, New Delhi, 2006.5. Kesari, U.P. (2005)Administrative Law , 15th Edition Central Law
Publications ,Allahabad.

E) HYPOTHESIS:
Delegated legislation causes overlap in functions since delegated authorities are given duties
to change law that is the responsibility of lawmakers. It has been a point of contention as to
whether or not the Legislature's control has weakened with the emergence of delegated
legislation. It would be against the spirit of democracy for unelected persons to make much
delegated legislation.

F) RESEARCH METHODOLOGY:
The present study is based upon Doctrinal Research Methodology. The study is being made by
collecting information from both primary and secondary resources. Primary resources such as
Constituent Assembly Debates, Law Commission Report and Judgments of Supreme Court of
India and other High Courts. Secondary resources such as books by eminent authors, research
journal and articles.

G) ABSTRACT:
Its high prerogative has been entrusted to its own wisdom, judgement, and patriotism, not to
the wisdom, judgement, or patriotism of others, and it will act supra vires if it chooses to
delegate rather than execute the trust." While such viewpoints raise concerns about the
propriety of transferring legislative power from higher to lesser legislative bodies, the truth
remains that this is a common practise in all modern democratic countries. As a result, it is
critical to first comprehend what delegated law entails before examining its many parts.
Administration's legislative power& Delegated Legislation refers to the authority granted to
the administrative authorities by the legislature to develop rules, regulations, or restrictions on
a specific topic It can be characterised as the Executive's or administrative authority's ability to
make laws. It's referred to as "delegated legislation" in short. It's also been referred to as "law-
making outsourcing."

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 CHAPTER -2
DELEGATED LEGISLATION

SUBORDINATE LEGISLATION-"Delegated legislation" is also known as "Subordinate

Legislation".Identifying the differences between "Supreme Legislation" and "Subordinate
Legislation",
Salmond2 explains : “Subordinate legislation is the legislation made by the authority other than
the supreme authority in the State, in the exercise of the power delegated to it, by the supreme
authority.”
In subordinate legislation, Salmond says , " It is dependent on some superior or supreme
authority for its continued existence and validity."
As a result, the authority that enacts legislation (subordinate legislation) in the exercise of
legislative power delegated to it by the Legislature is subordinate to it, and the authority's power
is limited by the Statute that established the delegation 3. The rules, bylaws, regulations,
notifications, orders, and other actions taken by the Executive or other administrative
authorities in the exercise of powers delegated by the Legislature are referred to as subordinate
legislation.
Sir Cecil Carr says – “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 managers
the main business. The delegated legislation is so multitudinous that the statute book would not
only be incomplete but misleading unless it be read along with the delegated legislation which
implies and amends it.”

●DELEGATED LEGISLATION—EXECUTIVE LEGISLATION:

Delegated legislation differs from executive legislation. The former refers to legislation passed
by authorities other than the Legislature to whom the Legislature has delegated legislative
authority, whereas the latter refers to the Executive's legislative authority conferred by the
Constitution.
As a result, legislation passed by the Executive in the exercise of powers conferred on it
expressly by the Constitution is not delegated legislation in the purest sense, but original
legislation.
Ordinances issued by the President under Article 123 or the Governor under Article 213 are
expressly stated to have the same force and effect as laws passed by the relevant Legislature.
Although delegated legislation is usually derived from a legislative act, Executive Legislation
is derived from a constitutional clause. Furthermore, in order for delegated legislation to be
constitutionally valid, it must meet the standards imposed by court pronouncements

2
Jurisprudence ,12th edn,. 116
3
Supra ,Jain and Jain

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interpreting fundamental principles in this field, whereas Executive Legislation must comply
with the constitution's provisions.

I.DEFINITIONS

I.“ Delegated Legislation” is defined as “legislative power exercised by a body subordinate to

the legislature.”
II.“ Ancillary, Subordinate, Administrative Legislation, or Quasi-Legislation” is a term used to
describe delegated legislation.
III.“ Delegated legislation is a mechanism for freeing up legislators' time so they may focus on
concepts and policy formulation.”
The former acting under the latter's express delegated4 authority and power. Delegation is
regarded as a good foundation for administrative efficiency, and when restored to proper
limitations, it does not constitute abandonment of power. In any event, the delegation should
not be unguided and uncontrolled. Parliament and state legislatures cannot relinquish their
legislative powers in their most fundamental features. Only non-essential legislative tasks can
be assigned, and the line of demarcation between necessary and non-essential legislative tasks
is always a moot matter. Making a legislation is one of the most important legislative duties. It
is to the legislature to formulate the legislative policy and delegate the formulation of details
in implementing that policy. The legislature is in charge of developing legislative policy and
delegating the development of specifics for putting that policy into action. It is the legislature's
authority and function to formulate legislative policy, and it cannot be delegated to the
administration. The ability to make notifications and changes to an Act while it is being
extended, as well as amend or repeal existing laws, is subject to the condition precedent that
vital legislative tasks cannot be delegated authority cannot be precisely defined, and each case
must be assessed in its own context.
Halsbury's Law5, Delegated legislation occurs when an instrument of a legislative type is
created by a body other than the Legislature. To put it another way, delegated legislation refers
to all law making that occurs outside of the legislative branch. It can be expressed in a variety
of ways, including rules, regulations, orders, by-laws, directives, schemes, announcements, and
so on.
Salmond puts delegated legislation as6-
“That, which proceeds from any authority other than sovereign power and is therefore,
dependent for its continued existence and validity on some superior or supreme authority.”
The phrase 'delegate' should not be confused with the term 'delegation.' While the term
"delegate" is defined as "a person who is appointed, authorised, delegated, or commissioned to

4
See clause (2) of Article 123 and CI (2) of Article 213
5
4th Edition 44 ,981-84
6
Salmond, Jurisprudence, 12th Edn., 116, quoted in Agricultural Marketing Committee v .Shalimar Chemicals
Works, AIR 1997 SC 2502

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perform in the place of another," "delegation" also refers to "instructing someone with broad
authority to act for the good of those who depute him" or "transfer of authority from one person
to another." In this sense, delegated legislation refers to him delegating lawmaking powers to
someone else, such as administrative authorities.
Jain & Jain defined the term in two ways:

•The exercise by a subordinate agency of legislative power assigned to it by the Legislature;

and

•The subsidiary rules themselves, which are made by the subordinate agency7 in pursuance of
the power described in the previous sentence (a).

Both meanings are intended by the term. It is defined as "legislation enacted by authorities
other than the Legislature" that occurs outside of the Legislature and is commonly represented
as rule8, regulation, order, by-law, directive, and scheme are all terms that can be used to
describe a set of rules9.
The Supreme Court in Hamdard Dawakhana v. Union of India explains 10:
"It is an exercise of delegated legislation when the delegate is granted the power to make rules
and regulations in order to fill in the details to carry out and subserve the purposes of the
legislation, the manner in which the Statute's requirements are to be met, and the rights therein
generated to be enjoyed."
The Donoughmore Committee on Ministers' Powers, established in England in 1929 to look
into, among other things, the powers exercised by Ministers through "delegated legislation,"
also clarified the term in two ways. —
1. The executive's exercise of law-making authority under the authority delegated to it by
Parliament; and
2. The executive's rules, regulations, by-laws, and other actions taken in the exercise of the
law-making authority entrusted to it by Parliament.
Jain & Jain, who as administrative lawyers, says as follows: "we are more interested in the
'technique', rather than the actual rules made, and so the expression 'delegated legislation' is
used here primarily in the first sense", i.e., the exercise of legislative power by a subordinate
agency. 11
Furthermore, Article 13(3)(a) of the Indian Constitution states that law includes ordinances,
order bylaws, rule regulations, notifications, and other documents that, if proven to be in

7
Black’s Law Dictionary ,6th edn ., quoted in Ishwar Singh v. State of Rajasthan, AIR 2005 SC 773.
8
For detailed discussion, see Ishivar Singh v. State of Rajasthan, AIR 2005 SC 773.
9
Agricultural Market Committee v. Shalimar Chemicals Works, AIR 1997 SC 2502.
10
AIR 1960 SC 554, quoted in State of T.N. v. K. Sabanayagam, AIR 1998 SC 344
11
See P.P Craig, Administrative Law, 2007, 67

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violation of basic rights, are void. Furthermore, there have been a number of judicial
pronouncements in which courts have validated delegated legislation.
For example In re Delhi Laws Act case 12, Vasantlal Magan Bhaiv vs State of Bombay 13 and
S State of Jammu and Kashmir v. Avtar Singh.
In his remarks on the need of delegated legislation, Justice Krishna Iyer correctly observed in
the matter of Arvind Singh v. State of Punjab14 , that the complexities of modern
administration are so perplexingly convoluted and brimming with intricacies, urgencies,
difficulties, and the need for flexibility that if our large legislature is forced to directly and
thoroughly manage legislative activity in all of its diversity, proliferation, and particularization,
they may not be able to get off to a good start. Delegation of some legislative authority becomes
a need for survival.
Because the King came to exercise power to repeal Parliamentary laws, a provision in a
legislation that grants the Executive express power to amend or repeal any existing law is
known in England as the Henry viii Clause. Although the clause has fallen out of favour in
England, it can still be found in India on occasion.
Article 372 of the Indian Constitution, for example, gives the president the authority to pass
pro-Constitutional legislation and, if necessary, to amend or repeal it to bring it into line with
the Constitution's provisions. A clause like this can be found in the State Reorganization Act
of 1956, as well as some other analogous Acts. So long as the Executive changes a statute in a
tiny and insignificant way that does not result in a significant change in the circumstance.
Delegated legislation is important for a variety of reasons: parliament does not have time to
consider and debate every little detail of complicated laws, and it only has a limited amount of
time to approve legislation; therefore, delegating legislation will allow for the passage of
extensively debated rules while also conserving legislative time. So, while the power to make
such a revision does imply some discretion, it must be employed in support of the Act's
legislative policy and cannot be used for any other purpose.

CHAPTER -3
CAUSES OF GROWTH OF DELEGATED LEGISLATIONS , AND
TYPES.

Delegated legislation is not an uncommon occurrence. Its expansion is due to a variety of

circumstances .Every state has abandoned the basic laissez-faire ideology, and the old "police
state" has evolved into a welfare state, no longer seeing its role in the social and economic life
of the society as that of a "glorified policeman." The state's functions in supporting the
wellbeing of its citizens from birth to death have substantially extended as a result of such a

12
AIR 1961 Supreme Court 332
13
AIR 1961 SC 4
14
AIR 1977 J&K 4

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significant shift in the philosophy of the state's mission. As a result, delegated legislation is
becoming increasingly important. The following elements must be examined, according to the
Committee on Ministerial Powers, which is in charge of the large-scale expansion of delegated
legislation.
(i)Pressure upon Parliamentary time
Because the number of state functions has increased dramatically, the volume of legislation has
grown to the point where the legislature cannot commit enough time to thoroughly debate all
of the issues. As a result, the legislature passes skeletal law that outlines overall policies and
gives the executive authority to fill in the details, “thus giving flesh and blood to the skeleton
so that it may live15”through enacting essential rules, regulations, and bylaws, for example.
Lawmaking is not a ready-made, turnkey enterprise, and once this scenario is comprehended,
the dynamics of delegation follow naturally. The Committee on Ministerial Powers made an
excellent point. :
“The truth is that if Parliament were not willing to delegate law-making power Parliament
would be unable to pass the kind and quality of legislation which modern public opinion
requires.”16

(ii) Technical expertise

Sometimes the subject matter of legislation is technical in nature and necessitates expert
consultation. Members of Parliament may be the best politicians in the country, but they are
not experts in dealing with highly technical issues that must be handled by professionals. In
such instances, legislative authority may be transferred to specialists to address technical
issues. As an example of such technicalities, legislation relating to atomic energy, nuclear
energy, gas, pharmaceuticals, or electricity may be cited.

(iii) Adaptability
Parliament is not always in session. It is impossible to anticipate all scenarios at the time of
enactment of any legislative measure. As a result, the Executive must be granted power to deal
with unforeseen events or to respond to new situations that arise often. While the parliamentary
procedure is slow, delegated legislation allows for quick amendments. Examples of such
scenarios include police restrictions and certain economic restrictions relating to bank rates,
imports and exports, foreign currencies, and so on.

(iv)Experimentation
The ordinary legislative process is hindered by a lack of viability and experimentation. The
executive branch can experiment with delegated legislation. The method allows for the rapid
application of experience and the adoption of necessary adjustments in the application of the

15
Gamer, Administrative Law, 1985, p. 49
16
Avinder Singh v. State of Punjab, AIR 1979 SC 321

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provisions as a result of that experience17. The rules and regulations can be successfully
executed if they are considered to be satisfactory. If they are proven to be incorrect, however,
the problems can be corrected right away.

(v)Emergency
In the event of an emergency, swift action is necessary. War, insurgency, floods, diseases,
economic distress, and other events may trigger an emergency. The legislative procedure is not
suited to give an immediate solution to the problem. As a result, the executive must have the
ability to act quickly. The only practical solution is delegated legislation.

(vi)Confidential Matters:
In some cases, the public interest dictates that the law be kept secret until it is put into effect.
Rationing schemes, import duties, and exchange controls are examples of such issues..18

(viii) Modern Administration's Complexity:

Modern administration has become difficult as a result of society's complexity structure. It is
increasingly responsible for promoting citizens' welfare, overseeing their health, education, and
employment, regulating trade, industry, and commerce, and providing a wide range of other
services. As a result, the complexity of modern administration and the development of state
functions in the socioeconomic sector have necessitated the use of new forms of legislation and
the delegation of broad powers to various agencies on appropriate occasions.19

○Criticism on Delegated Legislation's Expansion:

Delegated legislation's growth was once criticised as undemocratic. It was described as an
expansion of bureaucracy's tyrannical powers. However, as time has passed, much of the
animosity has dissipated. It has shifted people's perspectives. It is now regarded as a natural
reflection, in the field of constitutional law, of changes in government concepts stemming from
shifts in political, social, and economic thinking, as well as changes brought about by scientific
discoveries and technological improvements in our lives.

●TYPES OF DELEGATED LEGISLATION:

17
Per Fazal Ali, J. in Delhi Laws Act, 1912, Re, AIR 1951 SC 332
18
See Sukhdev Singh v. Bhagat Bam, (1975) 1 SCC 421, 434
19
Fazal Ali . J. : Delhi Laws Act, 1912, Re AiR 1951 SC 332 ; See also Brij Sunder v. First Additional District Judge,
AIR 1989 SC 572

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In India, the practise of delegating the right to amend the Act to the government has primarily
been delegated as a result of the ability to extend and apply laws. The delegated power
authorizes the making of modifications in an Act to be extended, which may be in enabling Act
itself or some other Act. Another occasion for the grant of modification arises, when
"Legislation by reference is adopted". It is a device where an Act or part of it is taken to be
forming a part of another Act. To make adopted Act fit into framework of the adoptive Act,
power is given to the executive to introduce necessary modifications in the former.

1.RULE
The expression "rule" is A regulation formed as a rule under any enactment is defined in the
General Clauses Act of 1897 as a rule adopted in execution of a power conferred by any statute.
The Mines Act, 1952, may be cited as an illustration of a case where a regulation may also be
regarded as a rule. (See sections 58 and 59). The most common form of delegation of legislative
power is to authorize the executive to frame rules for carrying into effect the objects and
purposes of the Act. Rules may be defined as minor laws. Invariably the Act also sets out for
the guidance of the executive the topics on which such rules may be made, although the lists
of topics so set out are not intended to be and may not be exhaustive.

2. REGULATION
Regulation (as opposed to laws made in the form of Regulations and falling within the
definition of Regulation as contained in the General Clauses Act, 1897), are somewhat inferior
to rules in that they are generally made by a subordinate authority like a Board or other statutory
body functioning under a statute20. The draftsman would be well-advised to preserve a
distinction between rules and regulations. The Indian practice is to confer rule-making powers
on the Government itself and where a specified subordinate authority is singled out for
regulating any matter, the subsidiary legislation is generally in the form of regulations. Such
regulations may be needed only for bind the members of that authority or they may have a
wider significance. Rules, on the other hand, have invariably a much wider application38.
The word 'Regulation' has also been used in Constitution where power to govern certain
territories is conferred by making 'Regulation'. The term "Regulation" is defined in section
3(50) of the General Clauses Act as "a Regulation made by the President under Article 240 of
the Constitution; and shall include a Regulation made by the President under Article 243
thereof; and a Regulation made by the Central Government under the Government of India
Act, 1870, or the Government of India Act, 1871."This type of Regulation is in the nature of
principal legislation and not an instance of subordinate legislation21 .

20
See A.K v. Board of Secondary Education, 71 CWN 396 (1967) where it is stated that a rule is superior to a
regulation
21
Every The exercise of a statutory power by a rule-making authority that is legislative rather than executive in
nature is deemed to constitute a statutory rule under the Rules Publication Act, 1893. (56 & 57 Vict., c. 66).

18 | P a g e
As expressed in the definition of 'rule', a 'regulation' may be made as a rule and then it partakes
the character of a rule. 'Regulation' and 'rule' are inter interchangeable words.' A regulation
made under statutory powers laying down terms and conditions of service of employees like
any other delegated legislation such as rule has the force of law40. When power to make
delegated legislation is conferred on different authorities by the same Act, the words 'rules' and
'regulations' may be utilized to distinguish the source and to sub-ordinate the latter to former41.
But sometimes the same authority may be authorized to make 'rules' in respect of certain
matters and 'regulation' in respect of others.

3. BYE-LAW
The expression "bye-law" is generally used when a body like the municipal corporation is
authorized to deal with specified matters. For instance, building bye-laws. A bye-law is an
ordinance affecting the whole public or a subset of the general public It invariably entails a
restriction of the freedom of action of those who are subjected to it as to acts. In which but for
the bye-law they would be free to do. Further, if validly made, it has the force of law within
the sphere of its legitimate operation.22

4. ORDER
While a rule is general in character and indiscriminate an order is, in general, particular in its
application and may be limited in its applicability. On the other hand, it's fairly rare to come
across orders that have a broad scope and function similarly to enactments. Orders made under
the Defence of India Act, 1971, the Essential Commodities Act, 1965, the Adaptation Orders
under the Indian Independence Act, 1947, and the Constitution are examples of these.
While courts may recognise an order with legal power, unless the order establishes a rule of
conduct that all members of the community must follow, there can be no doubt about its
enforceability by a court of law or other authority.Quite often, use of the capital is resorted to
by the draftsman to draw a distinction between orders enforceable by courts and orders of the
strictly limited variety, but such a device has no legal significance.23

5. NOTIFICATION
"Notify means make known and, in the case of public matters, it generally means that some
persons whose duty it is to notify something, gives it in the manner prescribed and to persons
entitled to receive it. Quite often, the relevant statutes may define "notification" to mean
notification in the Official Gazette. The Burma General Clauses Act contains such a
definition.There are two types of notifications the majority of government directives are

22
Parvet Qadir V. Union of India, AIR 1975 SC 446 at 451.
23
A bye-law can be challenged if it is unreasonable; while a rule cannot be so challenged. Mulchand
Gulabchandv. Mukumd S hivram, AIR 1952 Born. 296. The early history of the expression "bye-law" is that
when the Danes acquired possession of a shire in England, the township was often called a "by" and as they
enacted laws of their own, they were called "by-laws" "town-laws" (Iyer's Law Lexicon; see also the definition
in Stroud and Wharton). Also see Kruse v. Johnson, (1898) 2 QB 91at 96.

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published so that the public is aware of them. They don't all have legal standing. Only
notifications that are a type of subordinate legislation passed by a body with the jurisdiction to
promulgate them and that lay down some standards of conduct for members of the community
to follow have the force of law. Appointments, postings, and transfers of officers, which are
frequently announced in the Gazette, clearly do not have legal effect.

6. SCHEME
There are two types of "schemes." It may comprise subordinate legislation including a body of
rules binding on those who are subject to the rules, which, if passed by an authority with the
required authority, will be enforceable in courts of law or by other authorities and will have the
force of law. The other kind of scheme may be purely executive in character and does not
contain any rules of conduct for any body to follow.24
7. PROCLAMATION
A "proclamation" is a statement or notification issued by public outcry, such as criers, or a
public notice provided in writing by a State or departmental official of some act done by the
government or to be done by the people. The term is used in the above sense in section 26 of
the Police Act of 1861, which authorises the police to dispose of unclaimed property after
issuing a proclamation.

CHAPTER - 4
CONDITIONAL LEGISLATION

Conditional legislation is defined as "a statute that establishes restrictions but states that they
will only take effect if a particular administrative authority discovers the existence of
conditions set forth in the act." 25
The law is full and complete when conditional legislation is passed by the legislature. The
executive branch is not given any legislative powers. However, such an Act does not come into
effect. The executive is in charge of bringing the Act into effect if certain criteria are met,
which is why it is known as "conditional legislation."
Cooley “It is not always essential that a legislative Act should be a completed statute which
must in any event take effect as law at the time it leaves the hands of legislative department. A
statute may be conditional, and its taking effect may be made to depend upon some subsequent
event.”

24
Ibid.
25
Hart, an Introduction to Administrative Law with selected cases, p. 310

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The question of permissible limits of delegation of law-making power as conditional legislation
can be considered in three different periods for the sake of better comprehension.

(I) Privy Council and conditional legislation

The Privy Council established the doctrine of conditional legislation in Queen v. Burah 26In
this instance, the Privy Council held that if plenary legislative powers exist on certain subjects,
whether in an Imperial or Provincial Legislature, they can be exercised either unconditionally
or conditionally. Legislation committed by the Legislature to those in whom it places trust and
conditional on the use of certain powers or the exercise of a limited discretion is not unusual,
and it can be quite useful in many situations.
In a number of occasions, the doctrine of conditional legislation has been used. In Emperor v.
Banwari Lal, an ordinance promulgated by the Governor General provided for setting of
Special Courts. But the operation of the ordinance was left to the Provincial Government on
being satisfied that emergency had come into existence. The validity of the ordinance was
upheld. According to the Privy Council it was a piece of conditional legislation as the
legislation was complete and what had been delegated was the power to apply the ordinance
on fulfilment of certain conditions.
These cases show that the delegation of legislative power was upheld by the Privy Council
under the rubric of “conditional legislation.”

(II)Federal Court and Conditional Legislation

In Jatindra Nath Gupta v. Province of Bihar27, The Federal Court ruled that India's
legislative power could only be delegated through "conditional legislation." The concept of
conditional legislation was viewed as restrictive by the Court.
III.Supreme Court And Conditional Legislation
The Federal Court took a conservative stance on the concept of conditional legislation, whilst
the Supreme Court took a liberal stance.
-In Inder Singh v. State of Rajasthan28, An ordinance was passed for a period of two
years, however the Governor was given the authority to prolong the term of the law by issuing
a notification. The Governor twice prolonged the ordinance's life, the first by two years and the
second by two years. The power to extend the life of an ordinance is legal as conditional
legislation, according to the Supreme Court. This is a clause comparable to the one that was
decided in Jatindra, where it was decided that the ability to extend the operation of an Act was
delegated legislation rather than conditional legislation, and hence bad and void. The Supreme
Court has enlarged the concept of conditional legislation in this way.
In Basant Kumar v. Eagle Rolling Mills, the Supreme Court took a broad approach to
interpreting the idea of conditional legislation in the instances before it. "The Act shall come

26
5 I.A. 178 (18T8), for text, See supra
27
AIR 1949 F.C. 175; for text, see supra.
AIR 1964 SC 1260.

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into force on such date or dates as the Central Government may by notification in the official
Gazette, appoint, and separate dates may be appointed for different provisions of this Act, for
various States and for various sections thereof," according to Section 1 (3) of the Employees'
State Insurance Act, 1948, passed by Parliament. The provision was upheld by the Supreme
Court as conditional law.
In A. K. Royv. Union of India29 the Court upheld the validity of a provision in a constitutional
amendment giving unfetterred discretion to the executive to bring the amendment into force.

IV.Liberalisation of the concept of conditional legislation.

The Supreme Court has liberalised the concept of conditional legislation. In Kerala State
Electricity Board v. Indian Aluminium30, a Kerala Act was passed to regulate production,
supply and distribution of ‘essential articles’. But the statute provided no list of articles; it left
it to the government to notify an article as an “essential article” and bring it within the the Act's
purview The delegation of power was upheld by the Supreme Court as conditional legislation.
A special reference may be made to Tulsipur Sugar Co. Ltd. v. Notified Area Committee31.
In this case, a notification was issued under section 3 of the Uttar Pradesh Town Areas Act,
1914, expanding the boundaries of Tulsipur Town to the village of Shitalpur, where the
plaintiff's sugar mill was located. The notification was challenged on the grounds that the Act's
procedure had not been followed, and so the subordinate law was invalid. The Supreme Court
dismissed the claim, ruling that it was a matter of conditional legislation rather than subordinate
law. According to the Supreme Court, the effect of making the Act applicable to geographical
areas is in the nature of conditional legislation, and that the effect of making the Act applicable
to geographical areas is in the form of conditional legislation. “it cannot be characterised as a
piece of subordinate legislation.”

V.American Supreme Court and Contingent Legislation.

The doctrine of Contingent legislation has been recognised and applied by the American
Supreme Court in the leading case of Field v. Clark.32
In this case, the President was given the authority to halt the operation of an Act allowing the
unrestricted entry of specific products into the United States if he determined that the duties
placed on those products were reciprocally unfair and unjustified. The Supreme Court upheld
the Act, reasoning that it was comprehensive and that the President was merely an agent of
Congress charged with determining and declaring the situation under which Congress' intent
was to take effect. The following classic passage from a Pennsylvania case was quoted by the
Court with approbation.
“The legislature cannot delegate its powers to make a law; but it can make a law to delegate a
power to determine some fact or state of things upon which the law intends to make its own

29
AIR 1964 SC 1260.
30
AIR 1976 SC 1031
31
AIR 1980 SC 882
32
143 US 649 (1892)

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action depend. To deny this would be to stop the wheels of Government. There are many things
on which wise and useful legislation must depend which cannot be known to the law-making
power, and must, therefore, be the subject of inquiry and determination outside the hall of the
Legislature.”33

VI.Conditional Legislation and Delegated Legislation : Distinction

On the basis of discretion, a distinction is made between conditional legislation and delegated
legislation. In conditional legislation, it is the executive's responsibility to apply the law after
fact-finding, such as determining whether the facts requiring the Act's operation exist; however,
in delegated legislation, it is up to the government to decide whether or not to exercise the
discretion delegated to it. When it comes to Hamdard Dawakhana v. Union of India34, the
Supreme Court distinguished the two in the following words :
“The distinction between conditional legislation and delegated legislation is that in the former
the delegate’s power is that of determining when a legislative rule of conductshall become
effective and the latter involves delegation of rule-making powerwhich constitutionally
may be exercised by the administrative agent.”
It is argued that the distinction between conditional and delegated legislation creates artificial
discretion. The question is : Can it be said that there is total absence of discretion in conditional
legislation. In fact, whether emergency exists or not, or whether tariff rates are low or high or
whether the application of law is reasonable or unreasonable is a matter of discretion and cannot
be decided on mere facts.
Moreover, in view of the rapid growth of administrative law and acceptance of the doctrine of
delegated legistation, it is not necessary to stick to artificial distinction between ‘delegated
legislation’ and ‘conditional legislation’. What is to be noted is that when the Courts were not
readily approving or accepting the doctrine of delegated legislation, in the guise of conditional
legislation, they were seeking to uphold legislative measures. It must not be forgotten that
contingency formula is nothing but a fiction employed by the Supreme Court of United States
to get away from the ‘doctrine of separation of powers’35. Similarly Privy Council did not like
to commit itself to the position that ‘subordinate legislature’ could delegate legislative powers
and therefore evolved the doctrine of conditional legislation to indicate that what was being
delegated was some minor legislative power. Now that the theory of delegated legislation has
been accepted in India, it is not necessary to adhere to the so-called artificial distinction
between the two. As a matter of fact, delegated legislation is the wider term which would
include the narrower term conditional legislation, inasmuch as, conditional legislation is a form
of ‘delegation’ and a ‘very common instance of delegated legislation’.

VII.Subordinate Legislation :

33
Quoted in Delhi Laws Act case, AIR 1951 SC 332
34
AIR 1960 SC 534.
35
Lachmi Narain v. Union of India, AIR 1976 SC 714

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A provision in the statute for "such inquiry as it may consider necessary" by a. subordinate
authority is generally an enabling provision to facilitate the subordinate authority to obtain
relevant information from any source and it is not intended to vest any right in any body. While
exercising legislative function, unless unreasonableness or arbitrariness is pointed out, the
Court cannot interfere.

CHAPTER - 5
RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER

Restraints on delegation are set forth in the Delhi Laws Act case, which state that the legislature
should not delegate its essential legislative function of laying policy and enacting it into a
binding rule of conduct. This implies that the legislature should establish standards or policies
in this area.The delegating Act and the delegate may be left free to execute the policy. Thus, in
Delhi Laws Act case, the doctrine of excessive delegation was propounded.
I.Excessive Delegation : Permissible Limits
In India, the Courts follow the doctrine of excessive delegation. This doctrine, borrowed from
U.S.A., 36means that an Indian legislature cannot give an administrative authority unrestricted
legislative power. The doctrine's benefit is that it allows courts to declare overly broad
delegations of legislative power to be excessive and thus invalid.
The majority judgement in the case has now effectively settled the issue. In Re Delhi Laws
Act, 1912 37 that there is a limit beyond which delegation may not go. As regards the
determination of the limit of delegation, there are two views :
(1)Legislature can delegate legislative power if it does not imply a dereliction of essential
legislative functions; and
(2)Legislature can delegate legislative power if it establishes policy. These principles have been
used by courts to determine the legality of legislative delegations. The first principle has only
been applied in a few cases by the courts. The validity of the delegation of legislative power
has been examined in the majority of cases on the basis of legislative policy.

(a)Legislative policy to be found in Essential Legislative Function

The Supreme Court has ruled in a number of cases that the legislature cannot delegate its
essential legislative function of formulating policy and enacting it as a binding rule of conduct.
It means that the legislature must declare the law's policy, establish legal principles, and set
standards for the delegate's guidance in enacting delegated legislation; otherwise, the law will
be bad due to "excessive delegation."

36
Schwartz, Administrative Law, 34-50 (1976) ; Also, Schwartz, American Administrative Law—A Synoptic
Survey, 14 Israel L.R. 413-415
37
AIR 1951 SC 332, 345, 387, 401.

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●In Raj Narain Singhv. Patna Administration Committee The impugned Act's section 3(1)
(f) empowered the Patna Local Government to apply any provision of the Bihar and Orissa
Municipal Act, 1922 to Patna, with such modifications as it saw fit. The government took one
section, changed it slightly, and applied it to Patna. The delegation was declared
unconstitutional by the Supreme Court, who reasoned that the power to select a section for
application to another area amounted to delegating the power to change the Act's policy, which
is an essential legislative power that cannot be delegated.

●In Harishankar Baglav. State ofM.P.,38 The Central Government was authorised to issue
an order for the regulation of the production, distribution, and other aspects of essential
commodities under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and
section 6 provided that “an order made under Section 3 shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than the Act. Both the
provisions were challenged on the ground of excessive delegation of legislative power. The
Supreme Court held section 6 valid on the ground that it was not a delegation of power to repeal
or abrogate any existing law but to bypass the same where the provisions thereof were
inconsistent with the Essential Supplies (Temporary Powers) Act. The court further said that
the legislative policy was laid down in the Act and therefore, there was no question of excessive
delegation. It sought to bypass difficulty. In this way very broad delegation was given judicial
sanction.
●In Edward Mills,v. State of Ajmer39 the Schedule to the Minimum Wages Act, 1948,
contained a list of industries to which the Act was made applicable by Parliament.
However, appropriate Government was empowered to add any other industry in the said
schedule. The question of application of the provisions of the Act to any industry was left open
to the opinion of the government. Though no norms were laid down for the exercise of such
discretion, Supreme Court held the Act valid. According to the Court, the legislative policy
was enunciated in the Act, namely, to fix minimum wages to avoid the chance of exploitation
of the labour. But, 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.40
●In Hamdard Dawakhana v. Union India41, facts were that Parliament passed the Drugs and
Magic Remedies (Objectionable Advertisement) Act, 1954 to control the advertisement of
certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited
and authorised the Central Government to include in other diseases in the list. The court held
section 3 bad as nowhere had the legislature laid down any policy for guidance of the
Government in the matter of selection of diseases for being included in the list. After the Delhi

38
AIR 1954 SC 465
39
AIR 1955 SC 25
40
M.P. Jain, Indian Constitutional Law, 1987
41
AIR 1960 SC 554

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Laws Act Case, this is the first case in which a Central Act was held ultra vireson the ground
of excessive"delegation.
It is submitted that the view taken in this case is not in line with the approach of the Court
because the legislative policy had been laid down in the preamble and title of the Act moreover,
the clear mention of certain diseases in the list could have furnished the standard and criteria
for the selection of other diseases. Such a provision is held void in a ' number of cases. Recently
the Supreme Court has observed in a case that it is not necessary that the legislature should
“dot all i's and cross all the t's of its policy.”42
However, in Gwalior Rayon Silk Mfg. Co.v. Asstt. Commissioner43, the minority judgment
differred with the “policy and guidelines” theory. According to Justice K.K. Mathew, this effort
on the part of Supreme Court to somehow find the legislative policy from somewhere was
undignified for any judicial process. He said that “the hunt by Court for legislative policy or
guidance in the crevices of a statute or nook and cranny of its preamble is not an edifying
spectacle”.
In his concurring judgment Mathew, J. (for himself and Ray C.J.) propounded a new test to
determine the validity of delegated legislation. In his opinion,As long as a legislature can repeal
the enabling Act delegating law-making authority, it is not abdicating its legislative function,
and the delegation must be regarded as valid, no matter how broad or general it is. the
delegation may be. Relying upon the decisions in Queen v. Burah and Cobbv. Kropp
Mathew, J. observed that if the legislature could repeal the legislation and withdraw the
authority it had vested in the delegate at any time, it could not be said to have abdicated its
legislative function.

(b) Justification of Legislative policy

In the face of Gwalior Rayon 44(5 Judges Bench decision), the authority of Papiah ruling (3
Judges Bench decision) remains doubtful. It is submitted that the majority opinion given by
Khanna, J. in Gwalior Rayon establishes correct law on the subject. “We are also unable to
subscribe to the view that if the Legislature can repeal an enactment, as it normally can, it
retains sufficient control over the authority making subordinate legislation and, as a result, it is
not necessary for the legislature to lay down legislative policy, standard, or guidelines in the
statute,” His Lordship continued.
It is interesting to find that once again in Kerala State Electricity Board v. Indian Aluminum
Company the Constitution Bench again approved and confirmed the view taken by the
majority in Gwalior Rayon, however, without referring to Papiah. The relevant point is that
Goswami; J. was one of the Judges in Papiah as well as in Kerala State Electricity Board. In
these circumstances it can be said that in view of Kerala State Electricity Board, Papiah is
impliedly overruled or no longer servives.

42
Per Ranganathan, J. in Ramesh Birch v. Union of India, AIR 1990 SC 560.
43
AIR 1974 SC 1660
44
AIR 1974 SC 1660

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 CHAPTER 6
COMPARATIVE ANALYSIS OF DELEGATIVE LEGISLATION
AMONG ENGLAND, USA AND INDIA

I.ENGLAND
Parliament is the supreme authority in England. In theory, only Parliament has the power to
pass legislation. “Nothing is more striking in the legal and social history of the nineteenth
century in England than the development of subordinate legislation,” writes C.K. Allen. 45.”
Maitland says : Year after year, the subordinate government of England grows in importance.
The new movement began with the Reform Bill of 1832, and it has come a long way already,
and it will undoubtedly go even further. We are becoming a highly governed nation, with a
variety of councils, boards, and officers, both central and local, high and low, exercising the
powers delegated to them by modern statutes.
The same factors that drove the growth of delegated legislation in other countries drove the
development of delegated legislation in England. Parliament didn't have time to go over various
issues in depth. Parliament was forced to delegate its "legislative office" to the government due
to complexity, technicality, emergency, and expediency.
-Historically, administrative law was regarded as a bad thing, but it has gradually come to be
seen as justifiable in principle.It became clear that legislation and administration were not
fundamentally dissimilar forms of power. Tests designed to distinguish between legislative and
administrative functions were found to be insufficient and ineffective.
But at the same time, administrative law had not been accepted as a developed and recognised
branch of law. Taylor, therefore, observed:
Until August 1914, a law-abiding Englishman could go about his daily business oblivious to
the existence of the state, save for the post office and the policeman.
There was a massive increase in delegated legislation between World Wars I and II. Massive
inroads were made into citizens' comparatively personal matters, such as housing, education,
employment, pensions, health, planning, production, preservation, and distribution of essential
goods and services.

-It observed by Allen -We doubt that Parliament is fully aware of how widespread delegated
legislation has become, the extent to which it has relinquished its own functions in the process,
or how easily the practise could be abused. 46

45
Law in the Making (1993) 531
46
Report of Committee on Ministers’ Powers (1932) 62

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-The Committee rightly stated47: For certain purposes, within certain limits, and under certain
safeguards, the system of delegated legislation is both legitimate and constitutionally desirable.

(i)Absolute Delegation
In the United Kingdom, the principle of Parliamentary sovereignty reigns supreme. This
doctrine implies that Parliament is supreme and has unrestricted authority to enact any law it
sees fit. Parliamentary law is untouchable by the courts on any ground. In R. v. Hallidaj48 , it
has been rightly observed, “The British Constitution has entrusted to the two Houses of
Parliament, subject to the assent of the king, an absolute power untrammelled by any
instrument obedience to which may be compelled by some judicial body.” As a result,
Parliament may delegate any or all of its legislative powers to an outside authority. If there are
to be any limits to delegated legislation in the British Constitution, they will be a matter of
policy rather than a justiciable issue to be decided by the courts of law. In the United Kingdom,
the doctrine of excessive delegation does not apply.
II. U.S.A.
- Delegation in Theory
The doctrine of separation of powers underpins the American rule against non-delegability of
legislative power. The ideas of Montesquieu and Locke influenced the framers of the United
States Constitution, who believed that concentration of powers—legislative, executive, and
judicial—in the hands of a single organ of government spelled tyranny49. The U.S. does not
expressly provide for a separation of powers, but it is implied from the division of powers into
three categories, the legislative, executive and judicial50. "It is considered to be an essential
principle underlying the Constitution" observed the Supreme Court in Field v. Clarke, "that
powers entrusted to one department should be exercised exclusively by that department without
encroaching upon the powers of another." And it was pointed out in that case: "The principle
that Congress cannot delegate legislative power to the President is universally recognised as
essential to the integrity and maintenance of the constitutional system of government."
A different principle is at work in the American Constitution. The situation is unique in that
delegated legislation is not recognised in theory under the United States Constitution because
of two doctrines:

(a) The doctrine of separation of powers

The separation of powers doctrine is the foundation of the United States Constitution. Article
1 expressly vests legislative power in Congress, while Article II states that the executive power

47
Ibid, 51.
48
1917 AC 260
49
Willis, Constitutional Law (1938), 135. Washington thought that consolidation of go-vernmental powers in
one body created a 'real despotism' : Washington's Farewell Ad-dress. John Adams said that tyranny could be
checked only by "balancing one of the powers against the other two " : Works, (vol. I, p. 186).
50
Springer v. Philiphine Islands, 277 U.S. 189, 201; Youngs Town Sheet and Tube Co. v: Sawyer, 343 U.S. 579,
589

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shall be vested in a President, and Article III states that the judiciary has the power to interpret
the Constitution and declare any statute unconstitutional if it does not comply with its
provisions. In the leading case of Field v. Clark the American Supreme Court observed:
- “The Congress cannot delegate legislative power to the President is a principle
universally recognised and vital to the integrity and maintenance of the system of government
ordained by the Constitution.”
(b) Delegatus non potest delegare : A delegate cannot further delegate
In addition to the doctrine of separation of powers, the Supreme Court of the United States has
used the doctrine of delegatus non potest delegare to prevent Congress from delegating
authority. The doctrine states that a delegate's powers cannot be delegated further. The
Congress, as a delegate of the people, cannot delegate its legislative power to the executive or
any other agency because it receives power from the people. This is how legislators relate to
the people they represent. As a result, one of the most fundamental principles of representative
government is that the legislature cannot delegate the power to make laws to any other body or
authority51.
“To uphold the delegation, there is a need to discover in terms of the Act a reasonably clear
standard by which the discretion must be governed,” writes Justice Cardozo. If there is no
standard to limit delegation of power in the statute, it amounts to a blank check to make law in
the delegated area of authority, and the agency, rather than Congress, becomes the primary
legislator. A few examples are used to demonstrate how this rule works.
- In Panama Refining Co. v. Ryan52, In the so-called "Hot Oil" case, Congress gave the
President the authority to prohibit oil from being traded between states if it was produced in
excess of quotas set by each state. The Act's policy was to "encourage national industrial
recovery" and "promote fair competition." “The Congress has declared no policy, established
no standard, and laid down no rule,” the majority of the court said. As a result, the delegation
in the President's favour was illegal, and the Act was unconstitutional .

The legislature delegated legislative power to the Environmental Protection Agency (EPA) to
promulgate "air quality criteria" In Whiteman v. American Trucking Assn the relevant Act
also empowered the Environmental Protection Agency (EPA) to review the standard and make
"such revisions as may be appropriate." The provision was challenged because it gave the EPA
too much legislative power without providing a "intelligible principle." The claim was upheld
by the Court of Appeal..
The Supreme Court, however, held the delegation valid observing that a certain degree of
discretion to the Agency could be allowed. Referring to Mistretta, the court stated that to
require the EPA “to set quality standards at the level that is ‘requisite’,—that is not lower or
higher than is necessary—to protect the public health with an adequate margin of safety, fits
comfortably within the scope of discretion permitted by our precedent.”

51
Locke's Appeal, (1873) p. 491 (497) cited by Schwartz : Administrative Law, 1984, pp. 35-36
52
Ibid

29 | P a g e
Scalia J. rightly commented that wholesale delegations thus became the rule rather than, as
they once were, the exception.
Conclusion - There are not many cases of the United States Supreme Court declaring
congressional legislation unconstitutional because of excessive delegation. The exigencies of
modern government have persuaded the courts to take liberal view of delegation. In a large
number of cases, very broad delegations have been upheld and very vague phrases have been
held as laying down standards. The position is so much so that one commentator has remarked.

“Judicial language about standards is artificial.” 53 But the basic premise still remains that
Congress cannot delegate legislative power without prescribing standards: It should be
determined by the Courts. Legislative prescription of standards is not final. The courts do
reserve to themselves the power to declare delegation of legislative power unconstitutional if
they feel that in a given case the delegation is too broad and indefinite. Even though in practice
the Supreme Court of U.S.A. has upheld broad delegations under the impact of exigencies of
government in modern times, the court always reiterates the doctrine of excessive delegation.
Due to the continuance of the doctrine of excessive delegation, the Congress does seek to lay
down some standards in the Legislation delegating legislative power.
- However, American decisions show that there has been progressive breakdown of the
non-delegation theory that legislative power cannot be delegated.Cushman’s Syllogism :
“Major Premiss: Legislative power cannot be constitutionally delegated by Congress. Minor
Premiss: It is essential that certain powers be delegated to administrative officers and regulatory
commissions. Therefore, the powers thus delegated are not legislative powers.”54

III. INDIA
(i) Pre-Constitution Period.
That before the Constitution of India came Into force in 1950, Indian Legislatures were the
creatures of law passed by the British Parliament and thus they were characterised as non-
sovereign law-making bodies.2 The question of the validity of delegation of legislative power
by an Indian Legislature was raised for the first time in the Burah case decided in 1878.
The administration then sought assistance from the Privy Council. The Act's legitimacy was
upheld by the Privy Council. The Indian Legislature was recognised to be neither an agency
nor a delegate of Imperial Parliament, and it shared Imperial Parliament's plenary legislative
powers. It was recognised that the Governor-General in Council could not create new
legislative powers in India by passing legislation that was not formed or authorised by the
Imperial Parliament Act of the Council. This, however, was not the case. The Governor could
only extend the provisions of an Act already enacted by the competent legislature provided
specific circumstances were met, hence it was only conditional legislation.

53
Davis, Administrative Law, 54 (1951).
54
Schwartz, American Administrative Law, 1984 p. 47

30 | P a g e
Privy Council55 There are two possible interpretations. One interpretation is that because the
Indian legislature is not a delegate of the British Parliament, the delegation of legislative power
is unrestricted. However, since the Privy Council has only approved conditional legislation,
the other interpretation is that delegation of legislative power is not permitted.

In the Banwarilal's case 56, was included an Ordinance gave by the Governor-General
accommodating the setting up of exceptional criminal courts for preliminary of specific
offenses. The Ordinance contained arrangements in regards to the locale and system, and so on
of such courts. It didn't itself set up any of these courts, however given that it will come into
power in any area just if the Provincial Government being fulfilled of the presence of a crisis..
. . pronounces it to be in power in the territory." The legitimacy of the Ordinance was tested on
the ground that it added up to "appointed enactment" to the extent that the Governor General
tried to pass the choice in regards to the presence of a crisis to the commonplace government
as opposed to choosing it for himself. The Privy Council held that the Ordinance was not
designated enactment. The Governor-General had not appointed his administrative powers by
any means. The Ordinance was simply :an illustration of the, normal authoritative game plan
by which the nearby utilization of the arrangement of a Statute is dictated by the judgment of
a neighborhood managerial body concerning its need.

- The question of sacred legitimacy of appointment of forces came for thought under the
steady gaze of the Federal Court in Jatindra Nath Gupta v. Area of Bihar 57. For this situation
the legitimacy of segment 1(3) of Bihar Maintenance of Public Order Act, 1948 was tested on
the ground that it engaged the Provincial Government to broaden the existence of the Act for
one year with so much adjustment as it might consider fit. The Federal Court held that the force
of expansion with alteration is certainly not a legitimate designation of authoritative force since
it is a fundamental administrative capacity which can't be assigned. In this manner interestingly
it was decided that in India Legislative forces can't be appointed.

(ii)Post-Constitution Period
(a) Delegated Legislation's Constitutionality As a result of the decision in Jatindra Nath's
case, the issue of permissible constraints on the designation of administrative force has become
more important. In this vein, the President of India sought the Supreme Court's opinion under
Article 143 of the Constitution to clarify the legal situation. The Supreme Court was alluded to
a topic of law that was of enormous constitutional significance and was the first of its kind.
Three Acts are arranged in this way:
(i)Section 7 of the Delhi Laws Act, 1912;

55
AIR 1949 FC 175
56
1949 F.I.R 225 ,AIR 1949 P.C 115
57
AIR 1949 FC 175

31 | P a g e
The Provincial Government may, by warning, in the authority Gazette, reach out with such
limitations and changes as it might suspect fit to the Province of Delhi or any part thereof, any
institution which is in power in any piece of British India at the date of such notice.

(ii)Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 194758; and

The Central Government may, by warning in the authority Gazette, reach out to the Province
of Ajmer-Merwara with such limitations and changes as it might suspect fit any institution
which is in power in some other territory at the date of such notice.

(iii)Section 2 of the Part C States (Laws) Act, 1950, were in issue in Delhi Laws Act Case
, Re.
The Central Government may, by notice in the Official Gazette, reach out to any Part C State
(other than Coorg and the Andaman and Nicobar. Islands) or to any piece of such State, with
such limitations and alterations as it might suspect fit, any order which is in power in a Part A
State at the date of the notffication : And 'arrangement might be made in any authorization so
stretched out for the annulment or change of any comparing law (other than a focal Act) which
is for the time being material to that Part C State.

- There were a couple of Part C States. Delhi was one of them. Part C States were under
the immediate organization of the Central Government as they had no council of their own.
Parliament needed to enact for these States. It was, in this manner, that Parliament passed a
law, the Part C States (Laws) Act, 1950.

- The Central Government was approved by area 2 of the Part C States (Laws) Act, 1950
to reach out to any Part C State with such adjustments and limitation as it might suspect fit, any
order in power in a Part A State, and keeping in mind that doing as such, it could cancel or
revise any comparing law (other than a focal law) which may be in power in the Part C States.
Truly, it was a broad sort of appointment.

- The Supreme Court 59was called upon to decide the legality of this arrangement. Every
one of the seven appointed authorities who took an interest in the reference gave seven separate
decisions "showing a cleavage of legal sentiments on the subject of cutoff points to which the
council in India ought to be allowed to designate administrative force ". By a larger part, the
particular arrangement being referred to was held substantial dependent upon two constraints:

58
AIR 1951 SC 332
59
M.P JAIN ,Principles of Administration Law 1986,p.38

32 | P a g e
(1) The leader can't be approved to cancel a law in power and consequently, the
arrangement which approved the Central Government to nullify a law effectively in power in
the Part C States was awful; and

(2) By practicing the force of alteration, the authoritative arrangement ought not be
changed, and along these lines, under the steady gaze of applying any law to the Part C State
the Central Government can't change the administrative strategy.

(b) Principles set down in the Reference Case.

In Re Delhi Laws Act might be supposed to be "Siddhanatawali" as respects defendability of
appointed enactment. The significance of the case can't be under-assessed because from one
perspective, it allowed designation of administrative force by the governing body to the leader,
while then again, it differentiated the degree of such admissible assignment of force by the
assembly. For this it was propounded :

(a) Parliament can't resign or destroy itself by making an equal authoritative body.
(b) Power of appointment is auxiliary to the force of enactment.
(c) The endless supply of administrative force is that the lawmaking body can't leave
behind its fundamental authoritative force that has been explicitly vested in it by the
Constitution. Fundamental authoritative force implies setting down strategy of law and
ordering that arrangement into a limiting guideline of lead60.
(d) Power to revoke is authoritative and it can't be appointed.
The subject of Re Delhi Laws Act case is that fundamental authoritative capacity can't be
appointed while insignificant can be designated.

Subsequent Decisions Clarifying the Delhi Laws Act Case

In Hari Shankar Bagla V. M. P61. Express the Supreme court unani-mously derived a limiting
principle from its prior choice in the Delhi Laws Act case such that fundamental forces of
enactment couldn't be dele-gated. As such, the council couldn't designate its capacity of setting
down authoritative approach in regard of any action and its plan when in doubt of lead. The
council should pronounce the arrangement of the law and the legitimate standards which were
to control any given cases and should give a norm to manage the authorities or the body in
ability to execute law. The fundamental authoritative capacity comprised in the assurance or

60
Indian Law Institute ,Cases and Materials on Adminstration Law in India ,1986, p 220.
61
AIR 1954S.C .569

33 | P a g e
decision of the administrative strategy and of officially sanctioning that approach into a limiting
guideline of lead.

In Rajnarain Singh v. Executive,Administration Committee 62 broke down exhaustively the

Delhi Laws Act case concerning explicit forces appointed in that. The court all things
considered had the accompanying issues'.

For each, situation, the Central Legislature had engaged a leader authority under its
administrative control to apply, at its tact, laws to a space which was additionally under the
authoritative influence of the Center. The varieties happen in the sort of laws which the leader
authority was approved to choose and in the changes which it was engaged to make in them.

CHAPTER - 7
Judicial Control over Delegated Legislation
Because of the complexities and demands of the intense form of government, delegated
legislation is here to stay. The practise of delegated legislation is widely utilised in practically
all countries, and the legislature assigned some legislative powers to the executive. Delegation
of legislative powers to the executive must be done within the bounds of what is acceptable.
However, there is always the risk of executive authorities abusing legislative power.While a
result, there is a need to keep tabs on the delegate as he exercises his legislative authority. The
Ministerial Committee Powers has rightly observed that though the practice of delegated
legislation is not bad, “risks of abuse are incidental to it” and therefore safeguards are
necessary, “if the country is to continue the advantages of the practice without suffering from
its inherent dangers63.” Therefore, “today the question is not whether delegated legislation is
desirable or not, but it is what controls and safeguards can be introduced so that the power
conferred is not misused or misapplied.”
-The Committee on Ministers' Powers called attention to the abuse of delegated legislation,
saying, "We question, however, whether Parliament itself has completely appreciated how
widespread the practise of delegation has grown, the extent to which it has ceded its own
functions in the process, or how readily the practise might be abused64."
There must be a balance between two opposing principles: one that allows for broad delegation
of authority for practical reasons, and the other that no new legislative bodies should be
established by shifting key legislative functions to administrative agencies.

62
(1878) 3 AC 889.
63
Committee on Subordinate Legislation (First Lok Sabha), 1954 (3rd Report) p. 16; See also Jain,
M.P.,Principles of Administrative Law, 1986, p. 60; Wheare, K.C., Controlling Delegated Legislation; A
BritishExperiment, (1949) 11 Jour. Pol. 748.
64
Vasanthlal Maganbhai v State of Bombay AIR 1961

34 | P a g e
I.According to Krishna Iyer, J., “The system of law-making and performance auditing needs
careful, yet radical restructuring, if participative, pluralist Government by the people is not to
be jettisoned”.
II.Subba Rao, J.,65 as he then was has rightly observed : “There is danger inherent in such a
process of delegation. An overburdened legislature or one controlled by the powerful executive
may unduly overstep the limits of delegation. It may not lay down policy at all, it may declare
its policy in vague and general terms; it may not lay down any standard for the guidance of the
executive, it may confer an arbitrary power on the executive to change or modify the policy
laid down by it without reserving for itself any control over subordinate legislation. This self
effacement of legislative power in favour of another agency either in whole or in part is beyond
the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal
construction of an impugned statute whether the legislature exceeded such limits.”

●JUDICIAL CONTROL : DOCTRINE OF ULTRA VIRES

In the control-mechanism, judicial control has emerged as the most outstanding controlling
measure. Judicial control over delegated legislation is exercised by applying two tests :
1. Substantive ultra vires; and
●Procedural ultra vires.
When a subordinate legislation goes beyond the limit of authority placed on the delegate to
enact, it is referred to as substantive ultra vires. It is a fundamental legal principle that a public
authority cannot act beyond of its powers, and that if it does, the act becomes ultra vires and
hence void. It has appropriately been referred to as "the essential principle" and "the
cornerstone of a substantial part of administrative law." Ultra vires is a legal term that refers to
an act that is carried out in excess of one's authority.

I. Procedural ultra vires occurs when a subordinate law is adopted without adhering to the
procedural standards imposed by the Parent Act or the general law. The Courts may or may not
nullify delegated law in cases of procedural ultra vires, depending on the circumstances and
whether the procedure is deemed necessary or directory.

II. The doctrine of ultra vires is used by judges to exercise judicial control over delegated
legislation in a variety of situations66. The following are some of them:-

I.Legislation delegated that is in conflict with the Parent Act

II.Delegated Legislation that goes beyond the Parent Act's authority

65
Devi Das v. State of Punjab, AIR 1967 SC 1895.
66
As per Venkataramiah J , in Indian Newspapers vs Union of India AIR 11985 SSC 515.

35 | P a g e
III.Instances where delegated legislation is in violation of the Parent Act
IV.Where the Constitution's delegated legislation is ultra vires
V.Instances in which the Parent Act is unconstitutional
VI.Delegated legislation in conflict with the Parent Act's prescribed procedure
VII.Malafide : Bad Faith
VIII.Unreasonableness
IX.Pragmatism
X.Oppressiveness

I.Where Parent Act ultra vires the Constitution-

The Constitution establishes the limits on what the legislature can do. If the Parent Act or
Enabling Act is unconstitutional, the rules and regulations enacted under it are also
unconstitutional. If the Parent Act breaches the Constitution, it is ruled ultra vires.
(i) Express Constitutional Limits;
(ii) Implied Constitutional Limits; and
(iii) Constitutional Rights.

(i)Express Constitutional Limits

Invalidity of the rules and regulations arises if the Parent Act is violative of express limits
prescribed by the Constitution. Article 246 of the Constitution divides the legislative powers
of the Union and the States. If either legislative encroaches into the exclusive realm of the
other, as defined by three lists: I the Union list; (ii) the State list; and (iii) the concurrent list,
its legislation will be considered supra vires. 67
(ii)Implied Constitutional Limits
Implied Constitutional limits are those which were enunciated in Delhi Laws case,68 viz.,
establishing policy and adopting it as a binding rule of behaviour The legislature cannot
outsource important legislative functions to other agencies, and if it does, the Parent Act will
be unconstitutional.
The Supreme Court ruled that the later part of clause 2 of the Delhi Laws Act was
unconstitutional because it gave the administrative agency the power to repeal a law, which the
Court deemed to be an essential legislative power.

67
AIR 1951 SC 332
68
AIR 1951 SC 332

36 | P a g e
III. Similarly, In Hamdrd Dawakhana v. Union of India69,The Supreme Court ruled that
Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act is
unconstitutional because the legislature did not provide appropriate rules for the exercise of
administrative authority in selecting diseases for inclusion in the list.
IV. In Regional Director, National Council for Teacher Edu v St. Johns Teachers Training
Institute Delegated legislation, according to the Supreme Court, is founded on the notion that
the legislature cannot possible anticipate every administrative difficulties that may occur during
the administration of a statute. Delegated legislation is intended to meet such needs and should
be used in conjunction with, rather than in instead of, the enabling statute.
(iii)Constitutional Rights
No legislature has the authority to enact legislation that violates the trade clause, the right to
property under Article 300-A, or the right to life and liberty under Article 21. Another argument
for challenging the legitimacy of the Parent Act is that it breaches the requirements of Part III
of the Constitution by putting an excessive restriction on the enjoyment of fundamental rights,
not withstanding the fact that the statute is well within legislative conformity70
V. In Chintaman Rao v. State of Madhya Pradesh The Deputy Commissioner was given
authority under the Parent Act to restrict the manufacture of bidis in designated areas during
the agricultural season that he determined. The Deputy Commissioner outlawed the production
of bidis entirely. The Deputy Commissioner's order was declared ultra vires because the Act
under which it was issued infringed on the basic freedom to engage in trade, business,
profession, or occupation provided under Article 19 (1) (g) of the Indian Constitution. The
injunction, according to the Court, placed an unjustified limit on the exercise of a fundamental
right.

II.Where delegated legislation is ultra viresthe Constitut

(i) Even if the Parent Act is not ultra vires the Constitution and delegated legislation is
consistent with it, the delegated legislation may be declared unconstitutional on the grounds
that it is ultra vires the Constitution. In Narendra Kumar v. Union of India, the Supreme Court
was asked to evaluate just this argument. The Supreme Court concluded in this case that, even
if the Parent Act is constitutional, delegated legislation's legitimacy can still be challenged on
the grounds that the law cannot be considered to authorise anything that is in violation of the
Constitution.
-In Dwarka Prasad v. State of Uttar Pradesh71,The Essential Supplies (Temporary Powers)
Act of 1946 was used to issue the Uttar Pradesh Control Order. Despite the fact that the Parent
Act was constitutional, the Supreme Court ruled that paragraph 3 (2) (b) of the Order was extra
vires because it violated Article 19 (1) (g) of the Indian Constitution by putting unjustified
restrictions on the right to trade and enterprise. No one can do business in Coal unless they
have a licence, according to Clause 3 (1) of the Order. Clause 3 (2) (b) also stated that the State

69
AIR 1960 SC 554
70
For detailed discussion, see Jai Jai Ram Upadhyaya, Sociological Theory of Reasonableness, (1968) II SC J 99;
Wharm, Alan, Judicial Control of Delegated Legislation: The Test of Reasonableness, 36 Mad L.R. 611 (1973).
71
1993 Supp 3 SCC 141

37 | P a g e
Coal Controller has the authority to exclude anyone from the licence requirement. Clause 3 (2)
(b) was found to be in violation of Articles 19 (1) (g) because it gives the executive arbitrary
powers in granting exemptions.
(ii) Arbitrary power is ultra vires the Constitution-
-In Himmat v. Commissioner of Police72,The Commissioner of Police was authorised under
Section 33 (1) of the Bombay Police Act, 1951, to adopt rules for the regulation of conduct and
behaviour of Assemblies and Processions on or along the streets. There was a provision in Rule
7 that no public meeting may be convened without the authorization of the Commissioner. The
rule was declared unconstitutional because it gave the Commissioner arbitrary powers in giving
or denying permission, and as a result, it imposed an unjustifiable limit on the enjoyment of
the right to freedom of speech and expression protected by Article 19 (1) (b) of the Constitution.
-In K. Pandurangav. State of Andhra Pradesh73, the Court quashed Andhra Pradesh
Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978 which
made it compulsory for hoteliers to sell all the seven eatable items mentioned in the schedule.
The Court ruled that any order compelling a person to carry on business against his will was
Article 19 (1) (g) of the Constitution is violated.
-In Labh Chandrav. State of Bihar74, the impugned rule had restricted the voting rights for
the management of Jain temples to persons who are of 21 years, who had donated not less than
Rs. 50Q/-to the temple and who were residing within the State for the last 1C years. According
to the Patna High Court, the rule is discriminatory and violates Article 14 of the Constitution.

Theory of Derivative Immunity

-The question is whether the delegated legislation made under the Parent Act can be contested
in court because it is protected' under Article 31-B of the Constitution due to its inclusion in
the Ninth Schedule. In Vasanlal Maganbhai v. State of Bombay and Latafat AH Khan v. State
of Uttar Pradesh, it was held that if the Parent Act is protected under Article 31-B and cannot
be challenged, the delegated legislation cannot be attacked on the basis of derivative protection.
-However, this theory of derivative immunity was not reiterated in Prag Ice and Oil Mills v.
Union of India75.The constitutionality of the Mustard Oil (Price Control) Order, 1977 was
questioned in this case. The Parent Act (Essential Commodities Act of 1955) was enshrined in
the Ninth Schedule and so protected under Article 31-B. The Supreme Court had to decide
whether orders and notifications (child legislation) issued under the Essential Commodities Act
of 1955 may still be challenged as being in violation of fundamental rights.

III When delegated legislation goes against the Parent Act, it is considered ultra vires.. -

72
AIR 1973 SC 87.
73
A.I.R. 1975 Pat. 208
74
A.I.R. 1975 Pat. 206
75
AIR 1978 SC 1296

38 | P a g e
Delegated legislation can be overturned if it is found to be in violation of the Parent Act, an
enabling statute, or any other general law76.It is a well-accepted notion that delegated
legislation's authority must be exercised within the authority. A regulation that is not authorised
by the Parent Statute or the delegating statute cannot be made by the delegate. Only if delegated
legislation or subordinate legislation conforms completely to the power conferred can it be
pronounced legal. A rule can always be challenged on the grounds that it is unconstitutional.
The legitimacy of delegated legislation is a question of if vires, or whether the power has been
overreached or otherwise improperly exercised, or whether it is in conflict with the Parent
Act.77
-In Sri Pam v Aditional District Magistrate The Supreme Court ruled that an Act conferring
rule-making authority does not provide that authority the jurisdiction to make a rule that goes
beyond the scope of the enabling Act. In this case, neither the Delhi Land Revenue Act nor the
Delhi Reforms Act gave rule-making authority to classify land or omit any region from the
creation of a record of right or an annual register. The name of the tenure holder or sub-tenure
holder occupying land in the ‘extended abadi' and in the prescribed six types of land would not
be included in the record of right and annual register, according to rules set under the Act of
1962. The rules are supra vires, according to the court .
-In State of H.P v. Kunj Behari Butel. The Supreme Court ruled that an administrative entity
(in this case, the state) cannot introduce into the regulations what the Act expressly prohibits.
In this case, the State Government was given the ability to create rules in order to carry out the
purposes of the H.P. Ceiling on Land Holdings Act, 1972.” Section 5 of the Act exempted "The
Estates and Land Subservient Thereto" from the Act's application. The transfer of land
subordinate to estates, however, was prohibited by restrictions enacted by the state government.
As a result, the rules were found to be ultra vires the Parent Act, as they were contradictory
and repugnant to it .
IV.Delegated Legislation in excess of the power conferred by Parent Act.
The delegated legislation is upheld legal if the subordinate authority stays within the powers
assigned; nevertheless, if it does not, the Court will almost definitely quash it.
-In Dwarka Nath v. Municipal Corporation,78 Under section 23 (1) of the Prevention of Food
Adulteration Act of 1954, the Central Government was given the authority to enact rules
controlling the packing and labelling of any article of food with the goal of protecting the public
from being deceived or misled as to the quantity and quality of the article. The government
issued Rule 32, which stipulated that every label must have the manufacturer's name and
company address, as well as a batch number or code number in Hindi or English. Proceedings
started against Mohan Ghee Company for violation of Rule 32 as on Ghee tins only “Mohan
Ghee Laboratories, Delhi-5” was written. On behalf of Mohan Ghee Company, it was argued
that the requirement of an address under Rule 32 exceeds the power of the Parent Act, which

76
Wade, Administrative Law, 1988, p. 863; Halsbury’s Laws of England, 4th Edn. Vol. I, para 21; Garner,
Administrative Law, 1985, pp. 66-67
77
Asstt. Collector of Central Excise v. Ramakrishna, AIR 1989 SC 1829; District Collectoi Chittor v. Chittor
District Ground Nut Traders Association, AIR 1989 SC 689; Supreme Court Employees’ Welfare Association v.
Union of India, AIR 1990 SC 334.
78
(2000) 3 SCC 40.

39 | P a g e
is limited to "quantity and quality." Accepting the argument, the Supreme Court declared Rule
32 to be ultra vires of the Act because it exceeded the government's authority.
-In Chandra Baliv.R. Certain provisions of the Northern Indian Ferries Act have been
challenged. The Act allowed for the creation of rules in order to preserve order and ensure the
safety of passengers and property. The delegation, on the other hand, enacted rules prohibiting
the creation of private ferries within two miles of the boundary of another ferry. The court ruled
that the rules were ultra vires because they went beyond the extent of delegated authority.
In the same manner, in Mohd. Yasin v. Town Area Committee 79, the Parent Act had
authorised the municipality to charge fee only for the use and occupation of some property of
Committee, but the Town Area Committee made some bye-laws imposing levy on wholesellers
irrespective of any use or occupation of property by them. The SC said that bye-laws were
beyond the powers conferred on the Committee and were as such ultra vires. Similarly, in
Ibrahim v. Regional Transport Authority, under the Parent Act, the administrative authority
was empowered to frame rules for the control of transport vehicles. But the authority made
rules for fixing sites for the bus stand. The Court held the rules ultra vires being in excess of
delegating statute by the power conferred.
-Ajoy Kumar Banerjee v. Unionof India80 under section 16 (2) of the General Insurance
Business (Nationalisation) Act, 1972, the government was authorised to make rules for the
reorganization of the General insurance whereas the rules so framed provided to fix salary
patterns of employees. Declaring the rules ultra viresthe Parent Act, the Supreme Court held
them invalid.
Delegated legislation may be struck down if the Courts find the same to be against some
specific statutory provision or against the general tenor or underlying purpose of the delegating
statute. In Sales Tax Officer v. Abraham, The government was given rule-making power to
carry out the Act's objectives, and rules were issued dictating the last day for dealers to file
declaration forms in order to receive the advantage of concessionary rates on inter-State
transactions. The rules were quashed because the Act only authorised the creation of
regulations to specify what information should be included in the forms, not to set a deadline
for filing the forms. The rules were ruled ultra vires the law-making power and were overturned
by the Court.
-In General Officer Commanding-in-Chief v. Subhash Chandra Yadav 81, the Central
Government framed rules in the exercise of powers conferred on it under the Cantonment Act,
1924. Section 280 (2) (C) of the enabling Act enabled the central government to enact
regulations that “the tenure of office, salaries and allowances, provident funds, pensions,
gratuities, leave of absence and other conditions of service of the servants of Boards.” In
pursuance of the power, the Central Government Promulgated Cantonment Funds Servant
Rules, 1937. Rule 5-C was inserted in 1972 providing for transfer of servants from one
Cantonment Board to another Board. The The Supreme Court ruled that the rule was
unconstitutional since the Central Government did not have such authority under the Act.

79
AIR 1952 SC 115.
80
AIR 1984 SC 1130
81
AIR 1988 SC 876

40 | P a g e
-In Major Radha Krishan v. Union of India 82and others the Supreme Court has held that
an administrative action taken in exercise of powers under a rule cannot override the provisions
of a statute under which the rule was made. In this case an administrative action which was
barred under the provision of the statute was taken under a rule made thereunder getting over
the statutory provision. The action was declared null and void by the court.
-In a pace-setting judgment the Apex Court in V. Sundeerv. Bar Council of India held that the
Bar Council of India Training Rules, 1995 was ultra vires of the parent (enabling Act. Section
49 of the Advocates Act, 1961 as amended in 1973 provided that it shall have power to make
rules for discharging its functions under the Act. The rules framed for pre-enrolment training
and Bar Examination, in fact, did not relate to any of its functions as provided under the Act.
The Apex Court quashed the rules and held that rules framed under Section 49(1) of the Act
must have a statutory peg on which to hang them. There is no statutory peg and therefore the
rule will become stillborn. Therefore, unless the Parliament makes provision for pre-
envelopment training and examination, the Bar Council of India cannot do it by rule-making
power.

-In Mohini Jain v. State of Karnataka83 has held that rules framed by the Government under
the Educational Institutions (Prohibition of Capitation Fees) Act, 1984 are in violation of the
Act, hence, void. In this case the statute had prohibited capitation fees whereas the rules made
thereunder prescribed a fee which could be charged by private medical colleges and which was
not the tuition fee but capitation fee. The rules prescribed a fee of Rs. 2000 for merit students
and Rs. 25,000 and 60,000 for non-merit students for Karnataka and non-Karnataka students
respectively.

• Liberal attitude of the Court

However, liberal judicial attitude towards delegated legislation is typified by the Supreme
Court pronouncement in certain cases. In Tata Iron & Steel Co. v. Workmen Section s of the
Coal Mines Provident Fund and Bonus Scheme Act, 1948 authorised the Central Government
to frame Bonus Scheme for Employees. In exercise of the power, the Central Government
established a quasi-judicial tribunal to decide certain disputes. It was contended that such a
tribunal could only be created by the Legislature and not by an executive fiat. Rejecting the
contention, It was a matter of detail, according to the Supreme Court. “which is subsidiary or
ancillary to the main purpose of legislative measure for implementing the scheme”.
-Similarly, in State of T.N. v. Hind Stone 84,The Mines and Minerals (Regulation and
Development) Act of 1957 gave the State Government the authority to make rules governing
the granting of mining leases. The State Government passed Rule 8-C, which prohibited private
individuals from leasing black granite quarries. Thus, private activity in the quarrying of black
granite was outlawed by delegated legislationIt was argued that the rule was in violation of the
Parent Act and so invalid. “We have no doubt that the prohibition of leases in some situations

82
1965 SCR (1) 213
83
(1996) 3 SCC 507
84
AIR 1973 SC 1401

41 | P a g e
is an element of the regulation envisioned by section 15 of the Act,” the Supreme Court said,
rejecting the argument. As a result, the legislature and its delegates are the only ones with the
authority to decide what policy should be followed in connection to the Act's topics.
-The question of whether a particular piece of delegated legislation exceeds the power of
subordinate legislation delegated to the delegate must be determined in light of the specific
provisions contained in the relevant statute conferring the power to make the rule, regulation,
or other action, as well as the Act's object and purpose as can be gleaned from the various
provisions. It is not within the jurisdiction of the Court to evaluate whether a statute's goal can
be better served by adopting a policy other than that which has been laid down by the legislature
or its delegate as long as the regulations have a rational linkage with the statute's object and
purpose.85
V.Delegated legislation in conflict with the Parent Act-

Delegated legislation's legitimacy might be called into question if it conflicts with any
provision of the Parent Act. Thus, in D.T.U. v. Hajelay 86 under section 95 of the Delhi
Corporation Act, 1957, Any authority subordinate to the appointing authority, i.e. the General
Manager, is prohibited from dismissing an employee. By making a regulation, he transferred
that authority to the Assistant Manager. It was decided that such a rule was in violation of the
Parent Act and so invalid.
-Similarly in State of Karnataka v. Ganesh Kamathr , A person who takes a test in driving
a heavy motor vehicle is presumed to have passed the exam in driving any medium motor
vehicle as well, according to section 7 of the Motor Vehicles Act, 1939. According to Rule 5
(2) of the Act, even if a person passes the exam for driving a heavy motor vehicle, he cannot
receive a licence unless he has previously held a licence and has two years of experience driving
a medium motor vehicle. He will be unable to receive such a licence unless he has previously
completed the medium motor vehicle driving exam. The Parent Act's section 7 was deemed to
be in direct conflict with this provision. The Supreme Court ruled that the rule went beyond
the extent of statutory authority, making it incompatible with the enabling Act.
The question, however, is as to when a bye-law or any other delegated legislation can be said
to be inconsistent with or repugnant to the Parent Act or any general law and Therefore, bad.
In White v. Morley87, Channel, L.J. observed, “A bye-law. ... is not bad because it deals with
something that is not dealt with by the general law. But it must not alter the general law by
making that lawful which the general law makes unlawful; or that unlawful which the general
law makes lawful.”
Similarly, Krishna Iyer88, J. says, “a law has to be adjudged for its Constitutionality by the
generality of cases it covers, not by the frecks and exceptions, it martyrs.” “The legislature and
its delegate are the sole repositories of the power to decide what policyshould be pursued and
there is no scope for interference by the Court unless the particular provision impugned before

85
Maharashtra Board of S. H. S. E. v. Paritosh, AIR 1984 SC 1543.
86
AIR 1972 SC 2452
87
(1899) 1 Q.B34
88
Joshi v. Anant Mills, AIR 1977 SC 2279

42 | P a g e
it can be said to suffer from any legal infirmity, in the sense of being wholly beyond the scope
of regulation-making power or its being inconsistent with any of the provisions of the Parent
enactment or in violation of any of the limitations imposed by the Constitution."

CHAPTER – 8
CONCLUSION

Rules of legislation made under the authority of an Act of Parliament are referred to as assigned
or subordinate enactment. Despite the fact that council has the power to make laws, it can
transfer such power to other bodies or people through a resolution. The Enabling Act is the
resolution that delegated such authority. The council, under the Enabling Act, establishes the
broad regulations and nitty-gritty standards that are ordered by the appointed power. The Indian
Constitution permits designated enactment. It takes the form of bye regulations,
recommendations, orders, and bye laws, among other things.
There are numerous components answerable for its increment: Parliament and State Legislature
are too occupied to even consider managing the expanding mass of enactments, which are
important to direct every day issues. Present day enactment requires detail and ability
information on issues of different fields, our lawmakers, who are legislators are not expected
to have such information. Subordinate enactments are more adaptable, rapidly and effectively
amendable and revocable than normal enactment, if there should be an occurrence of
disappointment or imperfection in its application. At the point when possibilities emerge which
were not forseeable at the hour of making it, subordinate enactment can pass a demonstration
rapidly to deal with them. Fast, compelling and private choices are impractical in assemblage
of legislatives. In this way, leaders are appointed with ability to make rules to manage such
circumstances. These are the principle factors, other than numerous others, for the quick
expansion in assigned enactment today.

The enactment which is been finished by the state organs other than the lawmaking body is
called as appointed enactment, depended upon the council. At the end of the day designated
enactment implies the enactment made by the subordinate organization with the assistance of
authoritative force. The detachment of forces expresses that the administrative forces can be
practiced simply by the governing body in the state. Other than the assembly no other organ of
the public authority can handle or meddle the force of lawmaking bodies to make laws. The
libertyand opportunity of the people can't be secured in a free vote based system

1.Delegation of some piece of authoritative forces has be¬come a urgent need because of the
intricacies of present day enactment.

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2.Essential authoritative capacities can't be appointed by the council.

3.Essential authoritative capacities implies laying the arrangement of the Act and authorizing
that approach into a limiting guideline of direct. At the end of the day the assembly should set
down authoritative arrangement and reason adequate to give a rule to the regulatory standard
making.

4.After the assembly has practiced its fundamental legisla¬tive capacities, it can assign trivial
items, anyway various and huge they be.

5.In request to decide the defendability of the dele¬gation of administrative forces, each case
is chosen in its exceptional setting.

6.Courts have ventured out to the limit in holding extremely wide broad articulations as
adequate approach of the Act to decide the topic of lawfulness.

7.There are different types of regulatory standard making. Notwithstanding, the boundary for
deciding the topic of legality is something very similar, specifically, the governing body must
set out the approach of the Act.

Various general standards which rise up out of the different decisions identifying with
assignment of administrative force are as per the following :

(1)The Constitution gives law-production power on the Legislature and as such the said work
can't be assigned by the assembly to the Executive. The lawmaking body can neither make an
equal governing body nor annihilate its administrative force.

(2)Delegation of administrative force is allowable given this doesn't add up to surrender of

authoritative capacity and strategy is set somewhere near the lawmaking body.

(3)The assembly can't assign fundamental authoritative capacity. The fundamental

authoritative capacity comprises in the assurance of the administrative approach and making it
a limiting principle of lead.

(4)If the lawmaking body has played out its fundamental capacity of setting out the
arrangement of law, there is no protected bar against appointment of auxiliary or ancilliary

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controls for that benefit to the leader for making the enactment compelling, helpful and
complete.

(5)A rule designating law-production forces to the chief will be invalid in the event that it sets
out no standards and gives no guidelines to direction to the standard making body.

(6)The administrative approach can be formed as extensively and with as little or much detail
as the Legislature might suspect fit. It isn't required that the approach should be express, it very
well might be inferred also. It very well might be assembled from history, prelude, title, plan,
explanation or items and reasons. Direction might be discovered anyplace in the resolution.

(7)Power to rescind doesn't make appointment legitimate if else it is over the top, impermissible
or ridiculous.

(8)When a rule is tested on the ground of unnecessary designation, it should fulfill two tests :
(I) regardless of whether it delegates fundamental administrative capacity or force, and (ii)
whether the council has articulated its arrangement and rule for the direction of the
representative.

(9)Whether the assembly has played out the fundamental authoritative capacity and set out the
arrangement and the assignment is admissible or not relies on the conditions of the rule viable.

(10)Delegated enactment may take various structures. In any case, these standards apply to all
types of assignment viz., contingent enactment, subordinate enactment, strengthening
enactment, sub-appointment and so on

Assigned enactment in the changed financial appearance has become a constituent component
of authoritative force in general. Wide appointments of authoritative force are maintained
where they identify with tax assessment, financial enactment and chose bodies. The principle
of over the top appointment and authoritative strategy are wellbeing valve essential for working
of Democratic Government in agricultural nation.

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