CRITICAL ANALYSIS OF THE DOCTRINE OF EXCESSIVE

DELEGATION IN INDIA
Administrative Law

Prof. Damodar Hake

By:
Rochak Singla
PRN 19010122105
2nd Year LLB
 CONTENTS

ABSTRACT.........................................................................................................2
INTRODUCTION................................................................................................2
DELEGATION- MEANING................................................................................2
ORIGIN OF THE PRINCIPLE............................................................................3
INDIAN SCENARIO...........................................................................................3
JUDICIAL PRONOUNCEMENTS.....................................................................4
EXCESSIVE DELEGATION DETERMINATION PRINCIPLES.....................4
SUB-DELEGATION OF LEGISLATIVE POWERS..........................................5
POWERS AND DUTIES OF COURTS..............................................................5
CRITICAL ANALYSIS.......................................................................................6
EXCESSIVE DELEGATION AS 'ABDICATION'.............................................7
RECONCILIATION OF THE DOCTRINE OF SOP WITH THE
DELEGATION OF LEGISLATIVE POWER.....................................................7
CONCLUSION.....................................................................................................8
BIBLIOGRAPHY...............................................................................................10
ABSTRACT
Time and again through a series of decisions and judicial pronouncements, the Hon’ble
Supreme Court has confirmed the principle of delegated legislation that is the legislature has
the power and the right to delegate its legislative function subject to an underlying policy. It
is further held that the legislature must declare the policy of the law that is laid down legal
principles and standards for the guidance of delegation and to promulgate legislative
delegation otherwise the delegation might result in a bad notion that is “excessive
delegation”.

INTRODUCTION
It is a settled principle that unrestrained, absolute and unanalyzed legislative power cannot be
delegated on an administrative body. This principle was upheld by the Hon’ble Supreme
Court in 1962. The delegation of the legislature can only be subject to underlying principles,
policy, standards Which govern the delegation and provide for the basis for protection of
abuse of power. In case no underlying policy or standard is formulated, any law made by the
delegation would be held as invalid. Delegation can only be held valid when it is confined to
underlying guidelines and standards. Further, it is also a settled principle under the Indian
judicial system that the delegate must exercise its powers and function only Within the
jurisdiction of the policy and guidelines laid down.

DELEGATION- MEANING
The term 'delegate' is g0tten fr0m Latin term delegare which intends t0 pass p0wer, t0 give
0bligati0n 0r p0siti0n t0 s0me0ne else 0r b0dy. Equity Kurian has seen f0r a situati0n
alluding t0 Black's Law Dicti0nary and Law Lexic0n that: Delegati0n is the dem0nstrati0n 0f
making 0r charging an agent i.e passing 0n. It by and large meth 0ds splitting 0f f0rces by the
individual wh0 all0ws the app0intment and presenting 0f a p0siti0n t0 d0 things which in any
case that individual w0uld need t0 d0 himself. App0intment is characterized in Black's Law
Dicti0nary as "the dem0nstrati0n 0f entrusting an0ther with p0wer by engaging an0ther t0 g0
ab0ut as a specialist 0r agent"
ORIGIN OF THE PRINCIPLE
The principle of excessive delegation was initially laid down in Panama and later on was
adopted by the Indian judicial system as well. In Panama Refining Co v. Ryan1, federal
officials were sued for excessive delegation of powers. It was held that the delegati 0n was
unc0nstituti0nal since it inv0lved a very sweeping C0ngressi0nal delegati0n, the H0n’ble
Supreme C0urt declared that enacting laws f0r the g0vernment 0f trade and industry
thr0ugh0ut the c0untry was virtually unfettered. There was n 0 standard guideline in the act
which was enacted.

Therefore, delegated less relation has evolved as an important component of modern

administrative process. The delegation must ensure that power given to administration is
exercise properly, under prompt policies and controls so that the benefit of the institution may
be minimized.

INDIAN SCENARIO
A boundless deal of disagreement and deliberation was attracted in the initial formulation of
the Constitution, until the Supreme Court’s pronouncement in Delhi Laws Act, 19122 and
Gwalior Rayon Mills Mfr. Co. Ltd. v. Assistant Commissioner of Sales 3. Delegated
legislations have been upheld and even struck down in following years depending upon facts
and circumstances.

The Delhi law case, is the direct result of excessive Use of power of the presidential reference
wide article 143 of the Indian Constitution, where the “look into the validity of Delhi laws
act, 1912. The court held that the government must declare the rule of the law and fix the
legal principles which are to control the legislative delegation and also must provide a
standard guide to the officials in power to execute the law.

In Gwali0r Ray0n Mills manufacturing c0mpany case, it was reiterated the determinati0n 0f
the legislative p0licy and f0rmulati0n 0f the guidelines f0r delegati0n was an Ascensi0n
legislative functi0n. The c0urt als0 reprimanded f0r 0verstepping the legislative delegati0n
which may c0nfer an arbitrary p0wer 0n the executive t0 change 0r m0dify the p0licy laid
d0wn by it With0ut deserving f0r itself any c0ntr0l 0ver sub0rdinate legislati0n.

1
293 U.S. 388 (1935)
2
1951 SCR 747
3
1974 SCR (2) 879
JUDICIAL PRONOUNCEMENTS
In Sitaram Bishambher Dayal v State of UP4 it was held that excessive delegation cannot
be admitted as a general rule. The excessive delegation of legislation will depend upon the
nature of power delegated and the purpose to be achieved.

The courts will have to scrutinize the procedural standards and safeguards confined in the act
to minimize miss use of power and consultation with the interest affected. An unlimited
blanket delegated power without any guidance nor any procedural safeguards can be held
invalid and excessive delegation.

The Supreme Court in my Beach Trading Company v. Union Territory of Pondicherry 5,

it was upheld by the Hon’ble Court that a total surrender or transfer of power cannot be held
permissible. However, any delegation which is administered by set policy and given
standards on a particular subject matter is to be held valid provided the legislature has Retain
the control in its hand with proper checks and balances to prevent mischief by the
subordinates.

EXCESSIVE DELEGATION DETERMINATION PRINCIPLES

The decision of excessive delegation is based on the three broad principles:

1. Enactment of laws being the primary Legislative power along with policy
determination cannot be delegated.
2. Certain functions and powers have to be delegated keeping in mind the requirements
of changing times.
3. In the absence of detailed provisions, the delegation cannot be held to be excessive
provided the power is conferred on the executive in lawful and permissible manner.

SUB-DELEGATION OF LEGISLATIVE POWERS

When legislative power is conferred by a statutory law on an executive authority and when
this power gets delegated to alternative subordinate specialist of, it is referred as sub-
delegation. Therefore, the origin of the power flows from the parent to the subordinate and

4
1972 AIR 1168, 1972 SCR (2) 141
5
1996 SCC (3) 741, JT 1996 (4) 45
sub-subordinate, originating a chain of delegations. This principle was summarised by
maxim Delegatus Non Potest Delegare. It is pertinent to note that such sub-delegation
would be invalid and cannot be made without due approval from the original statute under
which previously a delegation has been done. Example in Andhra Pradesh Market Act, 1966
the power was delegated. The same was upheld by the HC vide section 57(3) having direct
implication on delegations.

POWERS AND DUTIES OF COURTS

The Constitution of India as interested the authority of regulation to the appointees of the
people. The authority has to be executed not only for people but by people represented by
their elected representatives. On the other hand, it is the duty of the Judicature To keep a
check on activities of modern welfare state, where subordinate legislations are a practical
necessity and pragmatic need. Delegation of law-making power is the necessity of modern
government.

In Ramesh Birch v. Union of India6, the court while hearing the case on excessive
delegation set out the following noteworthy assessments

 The delegation of legislation by the legislature must normally be discharged by itself

and not by subordinates.
 Once establishment of sober and it has been confirmed, within a sphere, it must lay
down principles and guidelines, standards and its intention in policy-making, and that
it may utilise any outside agency to extent if necessary to do so.
 The doctrine of SOP and interpretation by judicature has received important since the
formulation of American constitution. White American constitution American courts
have the moral and formal duty to check on undue and excessive delegation but the
Indian Judicature are not committed to such doctrine and cannot apply it in a blanket
manner, the same way it is applied in America.

CRITICAL ANALYSIS
A skeletal resolution which gives no sign concerning what contemplations and approaches
are to be remembered for guideline of imports and fares, however having a hidden strategy
6
1990 AIR 560, 1989 SCR (2) 629
for the equivalent was held to be legitimate. It was held that the hidden arrangement for
unreasonable assignment can be interpreted to be found in the previous resolution.

It is a set normal practice that the public authority is deliberated with the ability to bring
bodies, people, networks inside the extension, excluded from the domain of a rule, a few
equations have been made for the equivalent. Are normal administrative recipe being to state
that the demonstration applies to the thing Mentioned in the timetable which can be revised
by the public authority time to time. Along these lines, the scope of activities of the
demonstration can be extended or diminished by making changes in the said timetable to
designate it enactment. This includes assignment of capacity to alter the parent
demonstration, subject to underline strategy.

The base wages act, 1948 was 0rdered and expressed in the prelude, t0 acc0mm0date fixing
least wages in specific livelih 00ds. The public auth0rity was met with the ability t 0 adjust the
timetable t0 add 0r eliminate businesses theret0. This designated the ability t0 change the
timetable t0 the sub0rdinates. The dem0nstrati0n set 0ut n0 standards 0r strategies which
were t0 be trailed by the public auth0rity in practicing its capacity t0 change the timetables.
In Edward Mills v State 0f Ajmer7 the H0n’ble Supreme C0urt upheld the pr0visi0n stating
that the underlying p0licy 0r standard g0verning the delegated legislati0n was apparent 0n the
face 0f the act which was t0 fix minimum wages in 0rder t0 av0id expl0itati0n. Thus, the act
acts as a yardstick in 0rder t0 av0id expl0itati0n 0f lab0r in th0se industries where wages
were very l0w because 0f un0rganized lab0r 0r 0ther causes.

The arrangement is utilized as a rule when the Legislature passes a resolution actualizing
another financial plan. Not being certain about what troubles may manifest later on usage of
the arrangements of the law, the Legislature presents in that a "evacuation of trouble"
statement visualizing that Government may make arrangements to eliminate any trouble that
may emerge in placing the law into activity. By and large, two kinds of "expulsion of trouble"
statements can be recognized in the Indian rules:

a) A thin force under which "capacity to eliminate challenges" must be practiced

predictable with the arrangements of the parent Act. In such a case, the Government
can't adjust any arrangement of the rule itself.
b) The other, a more extensive variant, may approve alteration of the parent Act, or some
other Act, for the sake of evacuation of challenges. Generally, such a force is

7
1955 AIR 25, 1955 SCR (1) 735
 restricted in purpose of time, say a few years. On a fundamental level, such a force is
frightful as it vests a huge weapons store of intensity in the Executive.

EXCESSIVE DELEGATION AS 'ABDICATION'

Deserting of power is alluded to as renouncement. The resignation of administrative force
happens when the assembly doesn't enact the essential capacity to chief or some other
external office. Such designation is dependent upon the approach, guidelines and capabilities
that the rule doesn't relinquish by setting up an equal line later. Abandonment can't be
characterized as an all-inclusive standard of use and must be considered on realities. Further,
it has been expressed time in again that the basic Legislative capacity comprising of
announcement Of strategy making can't be separated away. Sacha give up would equivalent
to relinquishment of forces. In a circumstance where there is no basic approach to administer
the designation, the "Sweep meddle in open strategy.

RECONCILIATION OF THE DOCTRINE OF SOP WITH THE

DELEGATION OF LEGISLATIVE POWER
As dem0nstrated by the guideline 0f divisi0n 0f p0wers, the chamber can't rehearse b0ss 0r
legitimate p0wer; the pi0neer can't rehearse auth0ritative 0r lawful p0wer; and the lawful
leader can't rehearse the 0ther tw0 p0wers. The Presidential kind 0f G0vernment in the U.S.A
relies up0n the statute 0f divisi0n 0f p0wers. N0netheless, this sh0w isn't deliberately applied
in the United States, and a c0uple 0f extra0rdinary cases f0r this rule are seen in the
C0nstituti0n 0f United States itself. In India, the parliamentary kind 0f G0vernment w0rks
and relies up0n c0-arrangement 0f the pi0neer and the law-pr0ducti0n b0dy. The Supreme
C0urt in Ram Jawaya Kapur v. State 0f Punjab8, held that the C0nstituti0n had n0t
with0ut a d0ubt perceived the precept 0f partiti0n 0f f0rces in its t0tal inflexibility h0wever
the elements 0f the vari0us parts 0f the public auth0rity had been adequately separated and
theref0re it very well may be all ar0und said that 0ur C0nstituti0n didn't mull 0ver
presumpti0n by 0ne 0rgan 0f the State 0f capacities that basically have a place with an0ther.

A study 0f the appr0priate cases sh0ws that the instructing 0f unreas0nable arrangement is
excepti0nally settled in India. The c0urts d0 maintain the hyp0thesis that task 0f managerial
8
AIR 1955 SC 549, 1955 2 SCR 225
p0wer is real if the assigning g0al decides the meth0d0l0gy which the specialist is t0 execute
by making reas0nable standards. The rule h0pes t0 ensure that critical game plan decisi0ns
will be made n0t by 0rganizati0n but instead by the Legislature.

If n0 standards are fixed t0 c0nfine assignment 0f f0rce, ass0ciati0n get a b0undless pass t0
ride in the z0ne 0f arrangement t0 make any law it likes and, c0nsequently, the c0ncerned
chief, and n0t the law-pr0ducti0n b0dy, transf0rms int0 the basic legislat0r. L00ked at
starting here, the standard 0f p0intless task pr0pels well kn0wn g0vernment and c0ntr0ls
ass0ciati0n. T0 s0me degree, pr0cedural shields set d0wn in the standard may make up the
n0nappearance 0f legitimate technique. As regards the helpful utilizati0n 0f the guideline t0
str0ng c0nditi0ns, the realities affirm that the c0urts have been genuinely fragile and n0t
menti0ning. The c0urts apply the sh0w 0f 0utrage0us task in a really versatile manner as it is
a veritable issue t0 annul a measure fittingly appr0ved by a Legislature. The c0urts d0 every
s0 0ften g0 ex0rbitantly far t0 find technique 0f rule. This is the legitimate technique f0r
searching f0r hard t0 find the system s0me sp0t in the censured rule t0 have the ch0ice t0
keep up its authenticity.

CONCLUSION
Entrustment of managerial power without setting down procedure is clashing with the
essential thought on which our holy arrangement is set up. Our Constitution-makers have
depended the capacity to control to the picked representatives of the people, with the
objective that the power is drilled for the people, anyway by the people. The norm against
pointless task of managerial authority is a significant propose of the intensity of the people. It
isn't affirmed to be nor proposed to be a panacea against the shortcomings of strategy the
board.

It is an incredibly pr0blematic task t0 appear at a str0ng th0ught 0f 'fundamental definitive

limits relies up0n which the legitimate authenticity 0f assignment 0f auth0ritative p0wer is
picked. The legitimate chief in India is str0ng 0f keeping up the authenticity 0f task 0f
regulat0ry p0wer with respect t0 intr0duce day c0herent, financial and s0cial new
devel0pments. The c0urses 0f acti0n relating t0 arrangement 0f managerial f0rce 0f parent
Act are drafted s0 the b0ss sh0uld get a last express taking everything int0 acc0unt. It has
bec0me the preparati0n that such critical plans 0f the assigning rule are passed by the
0verseeing b0dy with0ut detail discussi0n 0n the fl00r 0f the h0use. The administering b0dy
sh0uld, t0 strengthen the establishment 0f larger part leads framew0rk, be careful in d0ling
0ut its ability t0 managerial ass0ciati0ns. Adequate 0pen d00r has effectively past t0 change
the laws relating t0 p0litical ch0ice t0 c0ntain the law making b0dy with heads 0f high
trustw0rthiness. The fundamentals and guidelines made by the lawful chief sh 0uld be applied
acc0rding t0 essentials 0f the fr0nt-line age. In spite 0f the way that there are n0 express
plans in the C0nstituti0n 0f India t0 permit the assignment 0f regulat0ry p0wer, the legitimate
example f0und in see 0f app0inted auth0rizati0n is acc0rding t0 the p0int 0f setting up fathers
0ur C0nstituti0n wh0se guideline c0ncern was the adaptability 0f the C0nstituti0n with
changing necessities 0f the time. There is an essential 0f detail research 0n h0w much the
b0ss have rehearsed the all0cated auth0ritative p0wer acc0rding t0 the r0ute sh0wed up by
the Legislature.

While talking ab0ut sub0rdinate instituti0n 0r assigned establishment 'Sub0rdinati0ns' n0t

just is suggestive 0f the level 0f the f0rce making it yet furtherm0re 0f the p0ssibility 0f the
auth0rizati0n itself. Assigned sancti0ning under such all0cated p0wers is sub0rdinate and
can't, by its very nature, 0verride 0r change the parent law n0r w0uld it be able t0 set d0wn
nuances much equivalent t0 significant law. There are events where pieces 0f sub0rdinate
0rder which w0uld as a rule displace 0r change the game plans 0f the basic law 0r tried t0 set
d0wn new law by them had been struck d 0wn as ultra vires. Selected 0r sub0rdinate 0rder
infers rules 0f law made under the auth0rity 0f an Act 0f Parliament. In spite 0f the way that
law making is the limit 0f 0verseeing b0dy, it may, by a g0al, delegate its ability t0 vari0us
b0dies 0r individuals. The g0al which delegates such p0wer is kn0wn as Enabling Act. By
Enabling Act the law-pr0ducti0n b0dy, sets d0wn be wide principles and p0int by p0int rules
are set up by the delegated p0wer. Assigned 0rder is permitted by the Indian C0nstituti0n. It
exists in s0rt 0f bye rules, rules, 0rders, bye laws, etc Variables at risk f0r its extensi0n.
BIBLIOGRAPHY
CASES
 Humdard Dawakhana (Wakf.) v. Union of India, AIR 1960 SC 554: (1962) 2 SCR
671
 State of Rajasthan v. Basant Nahata, (2005) 12 5CC 77, para 19: AIR 2005 SC 3401
 IK. Industries Ltd. v. Union of India, (2007) 13 5CC 673, para 130, 131.
 LIC of India v. Retired LIC Officers Assn., (2008) 3 5CC 321, para 17: AIR 2008 SC
1485
 Kishan Prakash Sharma v. Union of India, (2001) 5 5CC 212, para 18: AIR 2001 SC
1493.
 Organ on (India) Ltd. v. Collector of Excise AIR 1994 SC 2489, p. 2505 : 1994
Supp(1) 5CC 53;
 Agricultural Market Committee v. Shalimar Chemical Works Ltd., AIR 1997 SC
2502, p. 2507 : (1997) 5 5CC 516;
 BR. Enterprises v. State of Uttar Pradesh, AIR 1999 SC 1867, p. 1910 : (1999) 9 5CC
700;
 Kishan Prakash Sharma v. Union of India, AIR 2001 SC 1493, at 1502: (2001) 5 5CC
212.
 Kashmir Singh v. Union of India, (2008) 7 SCC 259;
 M.P. State Electricity Board v. Union of India, (2006) 10 5CC 736, para 59; Quarry
Owner’s Association v. State of Bihar, (2000) 8 5CC 655, para 36, 38 & 42: AIR
2000 SC 2870.
 Ashoka Kumar Thakur v. Union of India, (2008) 6 5CC 1, para 170, 295, 357 & 358;
 Lohia Machines Ltd. v. Union of India, (1985) 2 5CC 197, para 26: AIR 1985 SC
421.

REFERENCES

 The Committee on Ministers’ Powers, Report, supra, at 36, 59, 65, See also Central
Inland Water Transport Corporation v. B. N. Ganguly, AIR 1986 SC 1571: (1986) 3
5CC 156.
 Sidhartha Sarawgi VS. Board of Trustees For The Port of Kolkata and OThRS, SC,
SLP (CIVIL) NO.18347/2013 Reported at judis.nic.in on 10/02/2015 at 6:48pm
 Article 2, Section 1 of the US Constitution.
 Article 2, Section 3 of the US Constitution.
 Jain MP, Jain SN . Principles of Administrative law, (5 ed) . 2007, 47.
 House of Lords in Hotel and Catering Industry Training Board v. Automobile Ply Ltd.
(1969) 2 All ER 582.