PROJECT ON

“Delegated Legislation”

Submitted to -

Prof. Navjot Kaur

SUBMITTED BY – Kaushalya Patil

ID NO. – 60

[LLB Second Year (Sem III)– 2022-2023]

KLE COLLEGE OF LAW,

NAVI MUMBAI
Abstract:

Administrative law is a branch of legislation that has evolved rules that aim to ensure that
public authorities behave in a way that is legal, reasonable, and fair (also referred to as "public
law"). It offers a means of objecting to poor management, as well as the abuse of authority by
public institutions.

Delegated legislation is one of the most contentious topics in the field of legal theory because
of its numerous ramifications. The legislative, the executive branch, the judiciary, and the free
press are believed to be India's four pillars of democracy.

The constitution gives these pillars the authority to refrain from meddling in other people's
affairs. According to the Constitution, the Executive and Legislative have the authority to enact
laws and carry them out. The judiciary has the authority to settle disputes and administer
justice. But we must keep in mind that the legislative in welfare states must carry out a variety
of duties, and it is not simple for the legislature to handle every issue.

Keyword – Administrative, Delegation, Legislation, Judicial, Power

Introduction:

Delegated legislation is the procedure through which the executive authority is granted
authority by primary legislation to establish laws in order to implement and administer the
provisions of that main legislation (also known as secondary legislation, subordinate
legislation, or subsidiary legislation). Such laws are those passed by a body or individual other
than the legislature but within its jurisdiction.

Delegated legislation refers to legislation enacted by any statutory authority, local or other
entity other than the Legislature but under the jurisdiction of the relevant legislature. It is law
enacted by someone or something other than Parliament. Through primary legislation,
Parliament permits others to enact law and rules through a process of delegated legislation.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and

Quasi-Legislation. Delegated legislation refers to all law-making that takes place outside the
legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes,
directions or notifications, etc.

In other words, when an instrument of a legislative nature is made by an authority in the

exercise of the power delegated or conferred by the legislature is called subordinate legislation
or delegated legislation.

Definition of Delegated Legislation

Sir John Salmond defines Delegated Legislation, as "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.
Reasons for Growth of Delegated Legislation

 Pressure upon parliamentary time

The horizons of state activities are expanding. The bulk of legislation is so great. It is
not possible for the legislature to devote sufficient time to discuss all the matters in
detail. Therefore, legislature formulates the general policy – the skeleton and empowers
the executive to fill in the details – thus giving flesh and blood to the skeleton so that it
may live- by issuing necessary rules, regulation, bye-laws etc.

 Technicality
The legislators are often ignorant of legal and technical points and leave the law-making
power to the administrative agencies.

 Flexibility
Parliament cannot foresee all the contingencies while passing on enactment. To satisfy
these demands of unforeseen situation some provisions are required to be made. A
legislative amendment is a slow and cumbersome process. But by the device of
delegated legislation the executive can meet the situation expeditiously.

 Experiment
The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience.

 Emergency
A modern society is many times faced with occasions when there is a sudden need for
legislative action. The legislature can't meet at short notice, thus executive needs to
have standby power.

 Complexity of modern administration

The complexity of modern administration and the expansion of the functions of the
state to the economic and social sphere have rendered it is necessary to resort to new
forms of legislation and to give wide powers to various authorities on suitable
occasions.

Types of Delegated Legislation

Administrative rule-making or delegated legislation in India is commonly expressed by the

term 'statutory rules and orders. Parliament follows no particular policy in choosing the forms
of delegated legislation, and there is a wide range of varieties and nomenclature. The

Delegated legislation can be classified under various classes depending on the purpose to be
achieved:

 Title-based classification: An Act may empower an authority to make regulations,

rules, or bye-laws, to make orders, or to give directions. There is scarcely a limit to the
varieties of legislative provisions which may exist under different names.

 Discretion-based classification (Conditional Legislation): Another classification of

administrative rule-making may be based on discretion vested in rule-making authority.
 On the basis of 'discretion' administrative rule-making may be classified into
subordinate and contingent or conditional legislation.

 Purpose-based classification: Another classification of administrative rule-making

would involve the consideration of delegated legislation in accordance with the
different purposes which it is made to serve. On this basis, the classification may be an
Enabling Act, Alteration Act, Taxing Act, Supplementary Act, Classifying and Fixing
Standard Act, Penalty For Violation Act, etc.

 Authority-based classification (Sub-Delegation): Another classification of

administrative rule-making is based on the position of the authority making the rules.
Sometimes the rule-making authority delegates to itself or to some other subordinate
authority a further power to issue rules; such exercise of rule-making power is known
as sub-delegated legislation. Rule-making authority cannot delegate its power unless
the power of delegation is contained in the enabling Act.

 Nature-based classification (Exceptional Delegation): Classification of

administrative rule-making may also be based on the nature and extent of delegation.
The committee on Ministers Powers distinguished two types of parliamentary
delegation:

 Normal Delegation
Positive: Where the limits of the delegation are clearly defined in the
enabling Act.
Negative: Where the power delegated does not include the power to do
certain things.

 Exceptional Delegation: Instances of exceptional delegation may be:

Power to legislate on matters of principle.
Power to amend Acts of Parliament.
Power conferring such a wide discretion that it is almost impossible to know
the limits.
Power to make rules without being challenged in a court of law.

Such exceptional delegation is also known as the Henry VIII clause to

indicate executive autocracy.

Excessive Delegation of legislative power is unconstitutional

St. John's Teacher Training School v. National Council for Teachers Education

The question whether any particular legislation is suffers from excessive delegation has to be
decided having regard to the subject matter, the scheme, the provisions of the statutes including
its preamble and the facts and circumstances in the background of which the statute is enacted.

Rules cannot be made to supplant the provisions of the enabling act but to supplement it.

What is permitted is the ancillary or subordinate legislative functions.

Delegatus non potest delegare:

A delegate cannot further delegate. Suppose, A has made power of attorney in favour of B in
which he has delegated sale deed agreement execution powers in favour of B. B cannot further
delegate or create another power of attorney to C.

Note: If a non-delegable function is delegated, that legislation is bad and ultra-vires of the
Constitution.

Advantages of Delegated Legislation

 Saves cost and time when dealing with emergencies.

 More flexible as compared to non-delegated legislation.
 Helps in finding the bottlenecks.
 Sets up a new base for amendment of statutes which is the demand of time.
 Helps in relieving the burden on Parliament.
 Affected person’s interest is maintained.

Criticism of Delegated Legislation

Delegated legislation apart from having many advantages is criticized on many grounds-
 More claims for review of legislation.
 Influence of superior courts may cause interference.
 Authorities may follow the dictatorial principle.
 Increase in corruption and misuse of powers.
 Lack of legal knowledge among common people may trigger unavoidable situations.
 Slowly, the executive will start encroaching upon the legislature if delegation is
obscure.
 It is against the doctrine of separation of powers.
 Executive becomes more powerful.

Judicial and Legislative Control

Judicial control over the delegated power is implemented by two methods – Substantive Ultra-
Vires and Procedural Ultra-Vires. Ultra-vires means beyond the powers.

It is a general rule of law that any public servant cannot act beyond its powers, and if he does
so, it is accordingly ultra-vires or void. In legislative control, Parliament is the main authority
to delegate the powers through statutes.

Legislative Control

 Parliament has the power to control sub-ordinate law-making agency.

 It must be laid before Parliament for the prescribed period of time.
 Scrutinizing committee must approve and report to the Parliament.
 Affected groups must be consulted.
 Publication of rules in the official gazette is a must.
Judicial Control

Doctrine of Ultra Vires

If sub-ordinate authority goes beyond the powers conferred by enabling act, such exercise of
power is void. Dicey expounded this doctrine.

Procedural Ultra Vires

 Publication is essential and mandatory.

 Applies to particular procedure.
 Power vested in one authority by parent act.
 Consulting opinion and suggestion is followed mandatorily.

Substantive Ultra Vires

 Sub-ordinate authority should not go beyond policy/principles/purposes in the parent

act and the Constitution.
 Parent Act should be Constitutional
 Sub-Ordinate Legislation should not be the ultra vires of the Constitution (Narendra
Kumar vs Union, 1960).

Chintaman Rao v. State of M.P1 the C.P. Regulation ofManufacturer of Biris Act, 1948,
in order to ensure adequate agricultural labour in biri-making areas empowered a Deputy
Commissioner to fix the apicultural seasons and to prohibit manufacture of biri in the
notified villages during the season. By a notification, the Deputy Commissioner forbade
all persons from manufacturing the biri. The Supreme Court held that the Act in permitting the
imposition of a total prohibition upon those carrying on business of manufacture of biris during
the agricultural seasons interfered with private business and violated Article 19(l)(g) of
the Constitution, hence the notification under the Act was void

Hamdard Dawakhana v. Union of India2

Section 3 – Drugs and Magic Remedies (objectionable Advertisement) Act, 1954. The court
held that section 3(d) is ultra vires the Constitution. The whole Act was not struck down,
because the other provisions were found to be good law. The Court held that the words used in
Section 3(d) do not lay down any certain criteria or proper standard and surrender unguided
and uncanalised power to the Executive. There must be definite boundaries within which the
powers of administrative authority are exercisable. Delegation should not be so indefinite as to
amount to any abdication of the legislative function.

Air India v. Nargesh Meerza3

The regulation provided for the termination of services of an air-hostess if she dairies within
first four years of her service or on the first pregnancy. The Court found the first condition all
right, i.e., no marriage within first four years of her service but so far the second condition of

1
AIR 1951 SC 118.
2
AIR 1960 SC 554.
3
AIR 1981 SC 1829.
pregnancy is concerned, it was held to be "most unreasonable and arbitrary provisions of
service regulation made by Air India which has shaken the conscience of the court."

The regulation was thus held to be not only "manifestly unreasonable and arbitrary" but
also that it "contains the quality of unfairness and exhibits naked despotism" and thus,
held to be violative of Article 14 of the Constitution

Narendra Kumar v. Union of India4

The Supreme Court of India declared that every Act which confers power to make
subordinate law does so with an implied condition that such legislation shall be in
accordance with the provisions of the Constitution.

Dwarka Prasad Laxmi Narain v. State of U.P.5

Subordinate legislation being in conflict with Constitution and hence was ultra vires. In
this case clause 3(1) of U.P. Coal Control Order, 1953 was held ultra vires because it gave
unrestricted power to the State Controller to make exceptions and even if he acted arbitrarily
there was no check over him and no redress was available against it. The Court held that
it is violative of Article 19(1)(g) and could not be justified as a reasonable restriction under
clause (6) of thesame Article.

Lakshman v. State of M.P.6

The Supreme Court struck down a notification issued under the M.P. Grazing Rules made
under the Forest Act, 1927. The rules prescribed excessive and prohibitive rates of charges and
a very limited period for grazing of 'foreign cattle'. Foreign cattle meant cattle of persons not
resident of M.P. Normally such cattle pass through several States. The Notification was held
to be bad as being violative of Articles 14, 19(l)(e), 19(l)(g) and Article 301 of the Constitution.

Dwarkanath v. Municipal Corp.7

Section 23(1) of the Prevention of Food Adulteration Act, 1954, authorized the Central
Government to make rules for restricting the packing and labelling of any article of food, with
a view to preventing the public from being deceived or misled as to quantity or quality of the
article. Rule 32 framed there under by the Government provided that there would be
specified on every label name and business address of the manufacturer, as also batch number
or code number in Hindi or English. The appellant challenged Rule 32 as beyond the
power of the Government conferred under Section 23(1) of the Act, 1954. They contended
that the requirement of address under Rule 32 was in excess of the power conferred, which
was restricted to "quantity and quality" only. Accepting the contention of the appellants,
the Supreme Court held Rule 32 ultra vires the as it was beyond the power conferred on the
Government.

Radhakrishna v. State of M.P.8

The rules were directed to be made by the State Government with the occurrence of the
Central Government but the rules were made without such concurrence of the Central
Government. The rules were held to be invalid.

4
AIR 1960 SC 430.
5
AIR 1954 SC 224.
6
(1983) 3 SCC 275.
7
AIR 1971 SC 1844.
8
AIR 1952 Nag 467
Raja Buland Sugar Co. v. Rampur Municipality9
The appellant company owned two sugar factories and a number of buildings in respect of
which the respondent Municipal Board of Rampur levied a water tax. The company contended
that the levy was illegal as the Board had not framed the proposals and rules in
accordance with the mandatory procedural provisions laid down in U.P. Municipalities
Act, 1916. It was alleged that the proposal and the draft rules were not published in
the prescribed manner in a local Hindi paper as required statutorily and instead they were
published in a local Urdu daily. It was argued that the publication in local paper in Urdu was
not in accordance with the mandatory provision that publication 'shall be in a local paper
published in Hindi' and therefore the tax was not levied according to law, no matter other
conditions were complied with. The Court held that the appellant's arguments could not be
accepted and ruled that what was mandatory was publication of the rule, etc. The provision
that the publication would be in a paper published in Hindi was only directory.

Re Delhi Law Case10

In order to remove doubts regarding the validity of a number of laws which contained such
delegation, the president of India under article 143 of the Constitution asked the Court's opinion
on the three questions submitted for its consideration and report. Question was “Any of the
provisions thereof and in what particular or particulars or to what extent ultra vires the
Legislature which passed the said Act?”
1. Section 7 of the Delhi Laws Act, 1912
2. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947
3. Section 2 of the Part C States (Laws) Act, 1950

Seven judges presided over the case providing us with 7 different opinions. The importance
of the case cannot be under estimated in as much as, on one hand it permitted delegated
legislation while on the other it demarcated the extent of such permissible delegation of power.
The question was on the limits to which legislature in India can delegate its legislative power.

The Supreme Court took the following view

 Separation of power is not a part of Indian Constitution
 Indian parliament was never considered as an agent of anybody. Therefore doctrine of
delegates non potest delegare is not applicable
 Parliament completely cannot abdicate itself by creating a parallel authority
 Only ancillary functions can be delegated
 There is a limitation on delegation of power. Legislature cannot delegate its essential
functions. Essential function involving laying down the policy of the law and enacting
that policy into binding rule of conduct

Power to repeal a law is essentially a legislative power and hence, delegating that to the Govt.
is at once ultra vires the power to delegate.

Conclusion

Delegated or subordinate legislation refers to rules of law enacted under the authority of an Act
of Parliament. Even if the law making body has the power to enact laws, it can, through a
resolution, transfer that power to other organisations or people. The decision that granted such

9
AIR 1965 SC 895.
10
AIR 1951 SC 347.
jurisdiction was the Enabling Act. The Enabling Act, created by the council, defines general
regulations, while the delegated power creates specific guidelines.

On the whole, judicial review of delegated legislation is more of symbolic value rather than of
much practical value as a control mechanism over delegated legislation. To make judicial
control more efficacious it is necessary that delegating legislation does not confer power
in two broad and generalized languages. In such a case the Court may find extremely difficult
to hold a rule as falling outside the scope of power delegated. This is what is envisaged by the
doctrine of excessive delegation.