Abstract

This article assesses the constitutional foundation by which Parliament lends its lawmaking
powers to the executive. One of the advances in the realm of administrative process made during
these days is that apart from pure administrative function, the executive performs legislative
function as well. This is due to the number of reasons responsible for the growth of
administrative legislation.

The power conferred to administrative bodies to enact rules, regulations etc is given through
delegated legislation. The article talks about the development of delegated legislation in the
specified three countries namely, India, United Kingdom and United States Of America.

The article also states how the delegated legislation is been used in these countries, their
historical development and their relevance with certain doctrines and how the time changed their
importance. The article also draws a comparison related to the applicability of delegated
legislation in these three countries and the differences and similarity between them.
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.
Statement of Problem

1. To understand the delegated legislation and its development over the period of time.
2. To ascertain the differences and similarities in the delegated legislation in India, UK and
USA.

1. Legislative Function of Administrative bodies in UK

The Doctrine of Parliamentary Sovereignty is the heart of UK Constitution. The Parliament in

UK is sovereign and there is no restriction on the Parliament. In UK, Parliament also has road
powers to delegate its legislative powers to the Executive or other subordinate bodies. This is
evident from the ruling made in the case of R v. Halliday1 where in it was observed that “The
British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the
king, an absolute power untrammeled by any instrument obedience to which may be compelled
by some judicial body.”

But the UK Constitution also 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.

There are certain situations wherein an administrative authority has exercised a legislative power
which were not justified like in case of R (McCarthy and Stone Ltd) v. Richmond Council 2 the
House of Lords held that Richmond Council had no statutory power to charge residents a £25 fee
to consult its planning officers, because deciding planning permission was a statutory duty, and
no charges can be levied by an administrative body without clear statutory authority and hence
the decision made by Richmond Council was held invalid.

Similarly, in Padfield v. Minister of Agriculture3 the milk producers argued that the Minister of
Agriculture had wrongly exercised power in the Agricultural Marketing Act 1958 Section 19 by
not raising subsidies for milk when transport costs was changed. The country then was divided
into 11 milk regions, with different milk prices based on estimates of how much it costed to
1
1917 AC 260
2
[1991] 3 WLR 941
3
[1968] UKHL 1
transport milk. The House of Lords held that the Minister was wrong to refuse an investigation
into milk price disparities because this frustrated a central policy of the Act and to ensure fair
milk subsidies were paid, taking into account costs of production.

However there are certain laws, rules, regulations etc that are enacted by the way of delegated
legislation. For instance, National Insurance Act, 1911, Public Health Act 1875, Open Spaces
Act 1906 and many more. These are enacted by local administrative bodies.

2. Legislative Function of Administrative Bodies in USA

In American Constitution, the administrative authorities law making power is somewhat different
compared to the UK’s. This is because of the presence of two doctrines:

 The Doctrine of Separation of Powers

The US Constitution primarily gives more focus on this doctrine this evident from the
Article of 1 of their constitution. By Article 1 the legislative power is conferred upon the
Congress and the courts have power to interpret the Constitution and even declare any
statute unconstitutional if it does not adhere to the Constitution.
 Delegatus non potest delegare
As this has already been explained this means ‘A delegated power cannot be further
delegated’. This is the fundamental principle related delegation however, delegation can
be made if it is permitted by law.

In theory, it was not possible for the Congress to delegate its legislative power to the executive.
However, this was not practical, it was impossible for the Congress to enact all the statutes with
all particular information. To avoid pressure on the executive there are several cases wherein
executive took on legislative function and its validity was checked like in the case of Schechter
Poultry Corporation v United States 4 in this case Supreme Court of USA checked the
constitutional validity of the Sec 3 of National Industry Recovery Act, 1933 in which the
President was authorized under it to approve ‘Codes of Fair Competition’ for particular trades
and industries and its violation was made punishable. The Sec 3 was held unconstitutional as it
gave wide range of powers and no standards to limit the legislative function.

4
(1935) 2985 US 495
But in the case of National Broadcasting Co. v. US5 Federal Communication Committee was
given a wide range of powers to license broadcasting station in accordance with
Communications Act, 1934. The criteria given to the committee was ‘public interest,
convenience or necessity’. Although it was vague and ambiguous but there was a standard due to
which Supreme Court held it to be valid.

There are certain laws that confer administrative authorities the law making power and even
provide certain limits on it Administrative Procedure Act, Housekeeping Act, Independent
Offices Appropriations Act of 1952 and many more.

3. Legislative Function of Administrative Bodies in India

In India, the principle regarding the administrative authorities law making power can be divided
into two period. They are

 Pre-Constitution Period
Here the situation wherein a public authority exercised the law making power was first
observed in the case of Queen v. Burah6 in this case a legislation which was passed by
the Indian legislature was in question because the Act purporting to remove the district
of Garo Hills from the jurisdiction of civil and criminal courts and law applied therein.
The Sec 9 of this said Act empowered the Lieutenant-Governor of Bengal from time to
time, by notification in the Calcutta Gazette, to extend, mutatis mutandis (making
necessary alterations while not affecting the main point at issue), all or any of the
provisions contained in the Act to the Jaintia, Naga and Khasia Hills. The High Court of
Calcutta by a majority upheld the contention of the appellant and held that Sec 9 of the
Act was ultra vires the powers of the Indian Legislature. This was appealed in the Privy
Council and the Act was held valid and stated that Indian Legislature was not an agency
of Imperial Parliament.
Therefore, from this we are able to understand that the Administrative bodies have been
exercising legislative powers before the commencement of constitution.
 Post-Constitution

5
(1943) 319 U.S. 190
6
(1878) 3 AC 889
 In the post constitution period the Indian government has seen a number of various
instances where the legislative power has bee vested upon the public authority by the
way of delegated legislation and its applicability and validity has always been a question
of matter in various cases like in the case of Kiran Guota v. State of UP7 in this case the
UP Secondary Education Services Commission and Selection Board Act 1982, the Sec 9
gave the commission the power to frame guidelines regarding the recruitment of
teachers. This was challenged as the framing of rules is considered to be the function of
legislature but the court held that it was not the essential function of the legislature and
the commission members are qualified enough to frame the guidelines and the Act was
held valid.

Therefore, there are many instances where the public authority are vested with law making
power by the legislature through delegated legislation. For example, Essential Commodities Act,
1955, Minimum Wages Act, 1948 and many more.

Comparison between India, UK and USA

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 to 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.

7
AIR 2000 SC 3299
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 and this has also been
explained with the help of cases.

Literature Review

As the theme of my research is ‘Legislative Function of Administrative Bodies in India, UK and

USA’ the literature that was referred and implemented in the research is from a book written by
Dr.J.J.R. Upadhyaya, title ‘Administrative Law’.

The book covers a wide range of area and my topic selected is on narrower side as compared to
the book. In the research paper the information provided is basically on the delegated legislation
which has also been explained in the book as well. The book provides a summary of the
information which was the theme of this research and has reflected in the paper by highlighting
the idea provided the provided in the book. The research also provides some extra information
which has not been given in the book.

The book states about delegated legislation in UK and USA which has reflected in the paper as
well and there are certain doctrines mentioned in the book which has also been reflected in
paper.

Objective

The reason or the objective behind this research are

 Is to ascertain the method in which the legislative function of administrative authorities

are carried out in India, UK and USA,
 To compare the delegated legislation between India, UK and USA, and
 To understand the common rationale between them.
Research Questions

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

not.?
2. Which country has acquired the most benefit from the introduction of the delegated
legislation?

Scope & Limitation

This research is basically focused on the legislative function of the administrative bodies which
is also known as delegated legislation due to which its scope is narrow. Although the scope is
narrow the research has a wide area because of the comparison done between three countries.

This also limits the range of study that can be done on it because the title of the research is
“Comparative analysis of administrative law’s legislative function of India, UK and USA” as it
streamlines the research and does not goes into other matters of Administrative Law like relating
to the judicial function of the public bodies.

Research Methodology

The research methodology adopted in this research is the ‘Doctrinal Research’. A doctrinal
research means a research that has been carried out on a legal proposition or propositions by way
of analyzing the existing statutory provisions and cases by applying the reasoning power.

Hypothesis

The conclusion that has been arrived through this research is that the said countries India, UK
and USA have different perspectives while administering their countries and also the principle
they follow but the result of their action has always been to ensure the better governance of their
respective countries. This is also evident from the way in which they delegate the function of
legislature even though they follow certain principles which forbid them to do so that is the
principle of Separation of Powers. This is done in order to make the governing process much
easier. This also supports the statement ‘Law is dynamic’ and the principles must be changed as
the time changes.

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.

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.