School of Legal Studies

Internal Assignment 2

Administrative Law

Submitted by: -
Name: Shashank S Katagar
Srn: R20BL031
Class: BBA LLB 4thSem
Topic: Legislative Function of Administrative Bodies in India, UK and USA

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Table of Content
Introduction……………………………………………………………………3
Research Question 1 …………………………………………………………..4
Research Question 2 …………………………………………………………..7
Conclusion ……………………………………………………………………..9
Bibliography …………………………………………………………………...9

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Introduction
Administrative law is the by-product of expanding socio-economic functions of the State and
increased powers of the government. It has become immensely important in developed societies
since the relationship of individuals with the authorities has also become complex. It is that
branch of public law that dictates how administrative authorities have to work both at central and
state level. It is mostly judge made law that provides the guidelines for public administration and
ensuring public welfare. It includes the rule-making power of administrative bodies wherein
higher legislative offices delegate their powers to ensure better administration and
implementation of rules and regulations, quasi-judicial function of administrative agencies, legal
liabilities of public authorities and ensures that the executive wing of the democracy treats the
public fairly.

The Administrative Law is basically categorized into three main functions:

1.Legislative Function

Legislature means the law-making authority and this law-making authority is vested upon the
administrative authority through delegated legislation. Delegated legislation means the laws
made by an executive authority by using the power vested upon them by the superior legislative
authority. This is legislative function.

2.Quasi-Judicial Function

This function includes the action taken and discretion exercised by an administrative authority in
the course of the investigation of a certain case to ascertain facts and draw conclusions or to
adjudicate the cases came before the administrative body.

3.Administrative Function

The administrative function is neither legislative nor judicial. It can be considered as the
remainder action which is neither legislative nor judicial in nature. This basically includes all the
function related to the governing and administering the people.

However, in this article we are going to be focusing on the legislative function of administrative
authority and comparing this function between the Administrative Law of India, USA & UK.

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Research Questions

1.Whether the introduction of limit or standards on the delegated legislation is effective or

not?

As we know delegated legislation means the laws made by an executive authority by using the
power vested upon them by the superior legislative authority. As the power being vested on that
body is by a superior body then it is the duty of that superior body to keep a check on whether
the delegated power is being abused or not.

To prevent the abuse of powers which will lead to arbitrariness the superior authority has also
laid certain limitations that has to be followed while exercising the power delegated to them.

These limitations can be inferred as “Permissible Limits” and the authority can make laws
according to these limits. These limits are:

 Commencement:

“Appointed day” clause, which empowers the government to appoint a day for the Act to come
into force. In such cases, the operation of the act depends on the decision of the government.

Example: The Legal Services Authorities Act, 1987 was brought into force only in 1995.

 Supplying Details:

The Legislature gives the outline or the framework within which the administrative authorities
are given power to add certain details.

 Inclusion & Exclusion

Legislature passes an Act and makes it applicable- at first instance- to some areas or some
persons or commodities and later if the situation calls for further inclusion and the parent act
allows it then authorities can make certain inclusions or exclusions. Example- Essential
Commodities Act, 1955- central government to declare any commodity as essential commodity
and make the Act applicable to such commodity.

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  Modifications

As the purpose of delegated legislation is to make laws efficiently and quickly the authority to
make modifications has also been vested upon authorities only if the parent act permits such
modifications.

 Prescribing punishments

It is not objectionable for executive to prescribe for punishments, if two safeguards are adopted:

1. Legislature decides the maximum limit of punishments.

2. Such power is delegated to any authority other than state or central government- subject to
previous sanctions or approval of state or central government. Ex- Section 37 of the Electricity
Act- Electricity Board is empowered to prescribe punishments for breach of the provisions of the
Act subject to the maximum punishments laid down in the Act.

 Henry VIII Clause (Removal of Difficulties)

The authority is conferred on the government to modify the provisions of the existing statues for
the purpose of removing difficulties. Legislature cannot foresee all the difficulties which may
arise in its implementation. The executive is, therefore empowered to make necessary changes to
remove such difficulties.

Therefore, if the authority which has been vested with the law-making power has followed all the
guidelines and is within the prescribed limits then such delegated power is valid.

But there are situations where there is an ambiguity while exercising this power and during such
cases the court decides whether it is valid or not.

In the case of Hamdard Dawakhana v UOI1, the statute Drugs & Magic Remedies
(Objectionable Advertisement) Act, 1954 was enacted to control ads on some drugs. The power
was given to Central Govt to include any diseases within the list given in the statute. This
delegation of power was challenged and the court also held that the provisions given in the
statute was invalid as it was unguided and uncontrolled which would lead to abuse of delegated
power.

1
AIR 1960 SC 554

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Similarly, In Jalan Trading company v. Mill Majdur Sabha2

The SC was called upon to decide the legality of Section 37 (1) of the Payment of Bonus Act,
1965 which empowered the Central Govt to make such orders, not inconsistent with the purpose
of the act, is might be necessary or expedient for the removal of any doubts or difficulties.
Section 37 (2) made the order passed by the Central Govt under sub section (1) final. The court
by a majority of 3:2 held Sec 37 ultra vires on the ground of excessive delegation in as much as
the government was made the sole judge of whether any difficulty or doubt had arisen, whether it
was necessary to remove such doubt or difficulties and whether the order made was consistent
with the provisions of the act. Again, the order passed by the central government was 'final'.
Thus, in substance, legislative power was delegated to executive authority, which was not
permissible.

Therefore, certain limitations have to be imposed and the imposed limitation are effective
enough to prevent abuse of power but there is no law that is perfect and hence there are certain
cases where there will be abuse of power.

2. Which country has acquired the most benefit from the introduction of the delegated
legislation?

The answer to this question is that all the countries have been benefitted by the introduction of
the delegated legislations as the reasons for the growth of delegated legislation are:

 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.

  Technicality:

2
[1966] INSC 132

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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 led to the growth of
delegation of power.

  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 immediate
action to be taken.

 Experiment:

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

permits rapid utilization of experience and implementation of necessary changes.

 Complexity of modern administration

As the time passes emergence of new authorities like pollution control board, consumer forums
and many other authorities have come up and it will be difficult for only a single body to manage
them due to which delegated legislation is introduced for smooth governance.

As mentioned above the reasons for growth of delegated legislation, it was imperative that all the
countries were needed to adapt to those changes and had to introduce delegated legislation in
their respective countries. And there was also a shift of approach that respective countries took
because of change from Police state to welfare state. This also led to the emergence of more
complex socio-economic problem due which the legal systems of the countries had to evolve and
develop solutions for these problems. As a solution to this delegated legislation was introduced.

But these countries follow different principles like the UK Constitution follows the doctrine of
“Delegata potestas non potest delegari” which basically means that “no delegated powers can be
further delegated”. It is also known as “delegatus non potest delegare” which means “one to
whom power is delegated cannot himself further delegate that power. Therefore, the legislature
should execute its primary legislative duties by itself and should not delegate them to other
bodies.

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And US also follows the above doctrine and the ‘Doctrine of Separation of Powers’ which also
been followed in India but not in strict sense. Therefore, there are differences but similarities are
also there.

While making comparison in order to determine which country benefitted the most, we must
consider that, as India was a colony of the British empire there is a resemblance in the law
enacted by the both countries but there is on important difference in the legislative function of
the administrative authorities. This refers to the doctrine of ‘Delegatus non potest delegare’, in
UK this principle is followed strictly while delegating the legislative function to the executive
because of the supremacy of the parliament in the UK whereas in India even though the
parliament is supreme but this principle has not been applied in India because there are various
statutes that allow the legislature and the executive to sub-delegate their authority.

While comparing this with the US Constitution where the principle of ‘Separation of Powers’
and ‘Delegatus non potest delegare’ are important in matters concerning the delegated
legislation. While delegating in US the principle of separation of powers is of utmost importance
to them and they clearly demarcate a line or the limit of power that can be delegated. But in India
the principle of separation powers is followed in strict sense because there is an overlapping of
functions and the executive are also vested with legislative functions in various cases and as
explained above the principle of Delegatus non potest delegare is not applied in India.

Although there are differences between these three countries but there is a common ground as
well, that is the permissible limit which has to be adhered while delegating.

Conclusion

The idea behind vesting the legislative power on the executive is in good faith but there were
certain situations where this power was abused and had lead to decisions which were not
justified.

There were many confusions whether the delegated legislation was a good idea or not in the
countries like UK and USA but this was important because of the development of their countries
which made governing hard if they only rely upon one organ of government to make rules, law,
regulations etc and thus the delegated legislation received its importance.

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And even in India there was uncertainty whether the delegation of legislative function to public
bodies was a good idea or not but the changes in the surroundings lead them to believe that for
effective governance and to stop arbitrariness delegated legislation with certain limits is required.

Bibliography

Books Referred

 Dr. J. J. R. UPADHYAYA, ADMINISTRATIVE LAW (11th ed 2019)

Cases

 Hamdard Dawakhana v Union of India, AIR 1960 SC 554

 Jalan Trading company v. Mill Majdur Sabha, [1966] INSC 132

Statutes

 Drugs & Magic Remedies (Objectionable Advertisement) Act, 1954, Acts of Parliament,
1954 (India)
 Payment of Bonus Act, 1965, Acts of Parliament, 1965 (India)
 Constitution of India, 1950

Websites

MANUPATRA, https://www.manupatrafast.com (last visited Apr. 25, 2022)

INDIAN KANOON, https://indiankanoon.org (last visited Apr. 25, 2022)

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