A

PROJECT
ON
Delegated Legislation In India

(Jurisprudence)

Submitted as a partial fulfilment of the requirements

for
B.A. LL.B (HONS) 5 Year Integrated Course

Session: 2021-2022

Submitted On: Wednesday, 23 February 2022

Submitted By: Submitted to:

Dr. AKHIL KUMAR
AVANI LEKHARA
Roll no-17
Semester -5 Section -A

University five year law college

University of Rajasthan, Jaipur
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 Declaration

I, Avani Lekhara, hereby declare that this project titled “ Delegated

Legislation In India” is based on the original research work carried out by me under
the guidance and supervision of Dr. Akhil Kumar .

The interpretations put forth are based on my reading and understanding of the
original texts. The books, articles and websites etc. which have been relied upon by
me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or

diploma has been conferred on me before, either in this or in any other university.

Date: Wednesday, 23 February 2022 (Avani Lekhara)

Roll No.17
Semester 5A

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 Certificate

Dr. Akhil Kumar Date: Wednesday, 23 February 2022

Assistant Professor
University five year law college,
University of Rajasthan, Jaipur

This is to certify that Avani Lekhara student of semester 5 Section A of

University Five Year Law College, University of Rajasthan has carried out project
tittle " Delegated Legislation In India ” my supervision. It is an investigation of a
minor research project. The student has completed research work in stipulated time
and according to norms prescribed for the purpose.

Supervisor

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 Acknowledgment

I have written this project titled, “Delegated Legislation In India ” under the
supervision of Dr. Anju Gehlot Faculty, University Five Year Law College,
University of Rajasthan, Jaipur. His valuable suggestions herein have not only helped
me immensely in making this work but also in developing an analytical approach this
work.

I found no words to express my sense of gratitude for Director Dr. Aruna

Choudhary for constant encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the
support and cooperation extended by them from time to time.

Avani Lekhara

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 Table of content

• Declaration

• Certificate

• Acknowledgment

• Introduction

• Delegated legislation

• History of Delegated legislation in India

• Growth of Delegation of Power and its Reasons

• Delegated Legislation: Position under Constitution of India

• Criticisms of Delegated legislation

• Classification of Delegated Legislation

• Conclusion

• Bibliography

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 Introduction
The issue of delegated legislation has been one of the most debated issues in the domain of legal
theory because of its various implications. Scholars have consistently presented differing and even
contradicting views about delegation of power to legislate and have thus taken different stands on
the issue. While Delegated Legislation has been a widespread practice in modern times and is
almost an accepted norm, there have been contrary views. For instance Cooley has expressed a
staunchly critical view of the power to delegate. He has stated that "One of the settled maxims in
constitutional law is that the power conferred upon the legislature to make laws cannot be delegated
by that department to any other body or authority. Where the sovereign power of the State has
located the authority, there it must remain; and by the constitutional agency alone the laws must be
made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism
this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other
agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to confide this
sovereign trust."1 Further has also observed that "No legislative body can delegate to another
department of the government, or to any other authority, the power, either generally or specially, to
enact laws. The reason is found in the very existence of its own powers. This high prerogative has
been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and
it will act ultra vires if it undertakes to delegate the trust, instead of executing it."2 While such
positions do raise the questions about the propriety of delegating the power to legislate by higher
legislative bodies to the lower ones, the fact remains that this has been a general practice followed
in all modern democratic countries. Hence it is important to understand what is firstly meant by
delegated legislation and then analyse its various aspects.

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

2 Cooley Constitutional Law 4th Edition, page 138.

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 Definition
Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or
empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.
‘Subordinate Legislation’ has been defined as:
“Legislation that derives from any authority other than the Sovereign Power in a state and that
depends for its continued existence and validity on some superior or supreme authority.”

Salmond defines – “Subordinate legislation is that which proceeds from any authority other than the
sovereign power, and is therefore dependent for its continued existence and validity on some
superior or supreme authority.”3

Delegated legislation is, at times, referred to as “Ancillary”, “Subordinate”, Administrative

Legislation or as Quasi-Legislation”. Delegated legislation is a technique to relieve pressure on
legislature’s time so that it can concentrate on principles and formulation of policies.

Essential characteristics of Delegated Legislation:

1. The rules should contain short titles, explanatory notes, reference to earlier amendments, etc. for
clear understanding.

2. No extra-ordinary delay shall occur in making the subordinate legislation.

3. The administrative authority should not travel beyond the powers given in Parent Act. 4.
Essential legislative functions cannot be delegated.

5. Sub-delegation (Delegatus non potest delegare) is not encouraged.

6. General rules should not be framed with retrospective operation, unless and until the parent Act
instructs to do so.

7. Discriminatory and arbitrary rules should not be framed. 8. Wide and sufficient publicity shall be
given so that general public can know it.

9. In appropriate cases, consultation also shall be made for more effectiveness and efficiency.

3 Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur.
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10. The Sub-ordinate authorities should not use rigid, crux and technical language while preparing
the rules, which may cause difficulty to understand by general public.

11. The final authority of interpretation of the subordinate rules is vested to Parliament and Courts.
But the administrative authorities are not empowered and authorised to interpret the statutes.

12. A tax or financial levy should not be imposed by rules.

13. Wherever it is necessary, the explanatory notes shall be given.

History of Delegated legislation in India 4

a. Pre – constitutional Position:

The history of delegation of powers can be traced from the charter stage of 1833 when the East
India Company was regaining political influence in India. The of 1833 vested the legislative powers
exclusively in Governor – General – in council, which was an executive body. He was empowered
to make laws and regulations for repealing, amending or altering any laws or regulations, which
were in force for all persons irrespective of their nationality. In 1935 the Government of India Ac,
1935 was passed which contained an intensive scheme of delegation. The report of the committee
on ministers’ powers was submitted and approved which fully established the case for delegation of
powers and delegation of legislation was regarded as inevitable in India.

b. Present Position:
Though, our constitution was based on the principal of separation of powers, a complete separation
of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The
Indian Constitution does not prohibit the delegation of powers. On the other hand there are several
provisions where the executive has been granted the legislative powers. For example the legislative
powers of the president under the Indian Constitution are conspicuous. Under Article 123 the
president has the power to promulgate the ordinances and unrestricted power to frame regulations
for peace progress and good government of the union territory under Article 240. The Supreme
Court of India has also upheld the delegation of legislative powers by the legislative to the
legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration
Committee.5

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

5 AIR 1954 SC 569

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 Growth of Delegation of Power and its Reasons:

Many factors are responsible for the rapid growth of delegated legislation in every modern
democratic state. The traditional theory of ‘laissez faire’ has been given up by every state and the
old ‘police state’ has now become a ‘welfare state’. Because of this radical change in the philosophy
as to role to be played by the state, their functions have increase. Consequently, delegated
legislation has become essential and inevitable.

Some of the reasons of the growth of the Delegation of Powers are as follows:

1. Pressure upon Parliamentary Time:

As a result of the expanding horizons of the state activity, the bulk of legislation is so great that it is
not possible for the legislation to devote sufficient time to discuss all the matters in detail. Hence
there is need for a delegation of power.
2. Technicality:
Sometimes, the subject – matter on which legislation is required is so technical in nature that the
legislator, being himself a common man, cannot be expected to appreciate and legislate on the
same, and the assistance of experts may be required. Hence, this lead to the growth of delegation of
power.
3. Flexibility:
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies,
and some provision is required to be made for these unforeseen situations demanding exigent
action. Hence there is a need for flexibility which leads to the growth of delegation of power.6
4. Experiment:
The practice of delegated legislation enables the executive to experiment. The method permits rapid
utilisation of experience and implementation of necessary changes.
5. Emergency:
In the time of emergency, quick action is required to be taken. The legislative process is not
equipped to provide for urgent solution to meet the situation. Hence there is need for delegation of
power.

6 www.lawyersclubindia.com/articles Delegated Legislation in India

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Delegated Legislation: Position under Constitution of India

The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out
the law made by it. In D. S. Gerewal v. The State of Punjab 7, K.N. Wanchoo, the then justice of the
Hon'ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of
Indian Constitution. He observed: "There is nothing in the words of Article 312 which takes away
the usual power of delegation, which ordinarily resides in the legislature. The words "Parliament
may by law provide" in Article 312 should not be read to mean that there is no scope for delegation
in law made under Article312…." In the England, the parliament being supreme can delegated any
amount of powers because there is no restriction. On the other hand in America, like India, the
Congress does not possess uncontrolled and unlimited powers of delegation. In Panama Refining
Co. v. Rayans 8, the supreme court of the United States had held that the Congress can delegate
legislative powers to the Executive subject to the condition that it lays down the policies and
establishes standards while leaving to the administrative authorities the making of subordinate rules
within the prescribed limits. 4 Art. 13 (3) Defines law and it Includes ordinance, order, byelaw, rule,
regulation & notification having the force of law. In Sikkim v. Surendra Sharma9 - it is held that ‘All
Laws in force’ in sub clause (k) of Art. 371 F includes subordinate legislation. Salmond defines law
as that which proceeds from any authority other than the Sovereign power & is therefore, dependent
for its continued existence & validity on some superior or supreme authority.

7 (1970) 72 PLR 657.

8 293 U.S. 388 (1935).

9 (1994) 5 SCC282.
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 Criticisms of Delegated legislation

Delegated legislation is criticized for its various main defects which are as follows:-

• It has been suggested that by allowing delegated legislation it has allowed to make and amend
laws.

• It lacks democracy as too much delegated legislation is made by unelected people.

• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament
therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws.
Delegated legislation therefore has the potential to be used in ways which Parliament had not
anticipated when it conferred the power through the Act of Parliament. • Delegated legislation is the
lack of publicity surrounding it. When law is made by statutory instrument the public are not
normally notified of it whereas with Acts of Parliament, on the other hand, they are widely
publicized. One reason for the lack of publicity surrounding delegated legislation is because of the
volume of delegated legislation made and this result in the public not being informed of the changes
to law. There has also been concern expressed that too much law is made through delegated
legislation.

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 Classification of Delegated Legislation

Delegated legislation can be classified on the basis of the nature of the power conferred on
administrative authorities.

▪ Appointment Day Clause: Empowers executive authority to determine the day for the
commencement of the Act

▪ Skeleton Legislation: Legislature enacts the skeleton and administration has to provide the flesh
through subordinate legislation

▪ Power of inclusion and exclusion: Application of the Act can be expanded or restricted by
making additions or deletions in the schedule through delegated legislation

▪ Power of extension and application of existing laws: Some statute confers powers on the
Government to adopt and apply laws existing in other states with incidental changes to a new
State.

▪ Power of suspension: Power delegated to the Government to suspend or to make exemption

from all or any of the provisions of the Act

▪ Power of modification: Power on the executive to modify the statute itself.

▪ Delhi Laws Act case: Power of modification should not be used in such a manner so as to
change the essential policy of the Act in question

▪ Power to remove difficulties: Nicknamed "Henry VIII Clause", power to modify a statute may
be conferred on the Government by a removal of difficulties clause. The King is regarded
popularly as the impersonation of executive autocracy.

▪ Power to prescribe punishment: In US, the penalty for violation of rules can be fixed by the
legislature and not by the authority. However, in England, the power to impose penalty has been
delegated in some statute.

▪ Power to impose tax

▪ Conditional Legislation-The legislation makes the law but leaves it to the executive to bring the
act into operation when conditions demanding such operation are obtained. (a) To bring an act
into operation. (b) To extend the application of any act in force in one territory. (c) To extend or
to except from the operation of an Act certain categories of subjects or territories.

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 Conclusion
Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate its
power to other bodies or persons. The statute which delegates such power is known as Enabling
Act. By Enabling Act the legislature, lays down the broad guidelines and detailed rules are enacted
by the delegated authority. Delegated legislation is permitted by the Indian Constitution. It exists in
form of bye rules, regulations, orders, bye laws etc. There are many factors responsible for its
increase: Parliament and State Legislature are too busy to deal with the increasing mass of
legislations, which are necessary to regulate daily affairs. Modern legislation requires technicality
and expertise knowledge of problems of various fields, our legislators, who are politicians are not
expected to have such knowledge. Subordinate legislations are more flexible, quickly and easily
amendable and revocable than ordinary legislation, in case of failure or defect in its application.
When contingencies arise which were not forceable at the time of making it, subordinate legislation
can pass an act quickly to handle them. Quick, effective and confidential decisions are not possible
in body of legislatives. So, executives are delegated with power to make rules to deal with such
situations. These are the main factors, besides many others, for the fast increase in delegated
legislation today. Justice P B Mukerjee has stated

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 Bibliography
Books/Articles
• Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa
Nagpur.
• I.P.Massey, Administrative Law, (7th ed.2008).

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

Internet /Web Resources

• www.legalservicesindia.com/article Doctrine Of Permissible Limits under Delegated
Legislation under the Indian Constitution: of India
• books.google.co.in/books/about/Delegated_legislation Delegated Legislation in India, US
and England

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