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Summary
 9
Control Mechanism of Delegated Legislation

ADMINISTRATIVE LAW

LAW-314

“CONTROL MECHANISM

OF

DELEGATED LEGISLATION”

Submitted by Shivansh Sood

Section L 1902
Roll no. A08
Registration 11917221
no.
Course BBA.LLB (Hons.)

15
1|Page
 Control Mechanism of Delegated Legislation

TABLE OF CONTENT

S.No. Particulars Page. No Teacher

Remarks
1. DECLARATION 3

2. ACKNOWLEDGEMENT 4

3. TITLE 5

4. INTRODUCTION 6-7

5. CONSTITUTIONALITY 8-9

6. CONTROL MECHANISM 10-14

7. CONCLUSION 15-16

2|Page
 Control Mechanism of Delegated Legislation

STUDENT DECLARATION

I hereby announce that the BBA.LLB (Hons.) project entitled "Control Mechanism of
2
Delegated Legislation" has been carried out by me as a Bachelor of Law. The interpretations
put forward are based on my reading and understanding of the original texts and are not
published anywhere in the form of books or articles. The other books, articles, and websites
that I have used are recognized at the respective place in the text.
For the present project, which we are presenting to the School of Law, Lovely Professional
University, Phagwara, no degree has been submitted elsewhere.

PHAGWARA SHIVANSH SOOD

Date: …. /…./…..

3|Page
 Control Mechanism of Delegated Legislation

ACKNOWLEDGEMENT

In the planning of our project, I had to take the support and guidance
of some trusted people who deserve my deepest gratitude. I would also
like to extend my gratitude to all those who have directly and indirectly
guided me in writing on this assignment.

Many people, particularly my friends and seniors, have made helpful

comments, suggestions on our paper that have encouraged us to improve
the quality of the assignment.

The main motive behind preparing this project is not only marks but also
for gaining knowledge...

4|Page
 9
Control Mechanism of Delegated Legislation

CONTROL MECHANISM
OF
DELEGATED LEGISLATION

5|Page
 Control Mechanism of Delegated Legislation

Abstract
17
Governmental action now permeates practically every area of
human endeavour in the modern Welfare State, necessitating the
passage of laws to control this ever-expanding activity.
Delegated legislation is necessary because the Legislature lacks
17
the time to consider, debate, and adopt all the regulatory
procedures needed to implement a law. This study attempted to
1
analyse all forms of control mechanisms over delegated
legislation as well as the judicial response to it.

Keywords: Delegated Legislation, Constitution, Legislature, Executive, Judiciary,

Control Mechanism.

CHAPTER-1

1. INTRODUCTION

The Indian Constitution authorizes the legislature to establish laws for the country. One of the
most important legislative duties is to formulate a legislative policy and define it as a code of
behaviour. Obviously, such authority cannot be delegated to other entities. However, given the
1
many activities of a welfare state, it is impossible for the legislature to execute all functions. In
such cases, delegated legislation enters the picture. One of the key parts of administration is
1
delegated legislature, in which the executive must execute some legislative tasks. So, delegated
legislation is a procedure in which the executive authority is given powers by primary
legislation to establish laws to implement and manage the primary legislation's requirements.

Salmond defines delegated legislation as "that which emanates from any authority other than
the sovereign power and is thus dependent on some higher or supreme authority for its
continuous existence and legitimacy."1

1
Salmond, Jurisprudence, 12th Edn., p. 116

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 Control Mechanism of Delegated Legislation

As Lord Coleridge, C.J. stated in 25 QBD 304, the term delegation means that powers are
1
transferred to another person or body, which are always susceptible to resumption by the power
delegating2. The term "delegate" refers to nothing more than an agent. An agent has no
1
independent authority, just the power of his principle.3 In general, a delegating body will retain
not only the capacity to withdraw the grant, but also the power to act simultaneously on matters
within the scope of delegated authority, except if constrained by an act of its delegate. It is
known by many other titles, including rules, regulations, byelaws, orders, schemes, and so on.
12
Rules, Regulations, Schemes, Byelaws, and Orders established under Statutory authorities are
12
all included in delegated legislation, as pointed out by Ray, C.J. in Sukhdev Singh v. Bhagat
ram.4

19
In Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax, the
Supreme Court remarked that "most current socio-economic legislations issued by the
Legislature put forth the guiding principles and legislative philosophy." Because of the
constraints imposed by the time factor, legislatures rarely delve into depth. Delegated
legislation is therefore provided for in order to provide flexibility, elasticity, expedition, and
11
the chance for experimentation. The practice of authorizing the executive to enact subordinate
10
laws within a defined realm arose from the practical requirement and pragmatic demands of
the modern welfare state.5

This delegation authority is a component of legislative power as a whole. So long as the

Legislature indicates the policy and purpose of the enactment in the operative provisions of the
statute, the mere fact that the legislation is skeletal or that a discretion is left to those entrusted
16
with administering the law is not a basis for a claim of excessive delegation of legislative power
if the power or discretion is conferred in a legal and constitutional manner.6

2
As cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334, 338 (para 8): AIR 2005 SC 773
3
Ibid
4
AIR 1975 SC 1331, 1337: (1975) 1 SCC 421
5
A.I.R. 1974 S.C. 1660 (1667).
61
Jyoti Parshad v. Union Territory of Delhi, A.I.R. 1961 S.C. 1602

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 Control Mechanism of Delegated Legislation

CHAPTER-2

2. CONSTITUTIONALITY OF DELEGATED LEGISLATION

In India, legislatures have been held to have broad delegation powers in accordance with their
sovereign nature. This power, however, is not without constraints. The Legislature cannot
8
transfer fundamental legislative duties such as determining or selecting legislative policy and
formalizing that policy into an enforceable rule of behaviour. The Legislature is not permitted
1
to delegate "unanalysed and unregulated power." The delegation is legal only if the legislative
policy and the parameters for implementing it are sufficiently written out, and the delegate is
only authorized to carry out the policy within the guidelines established by the Legislature.

1
The question of whether any specific law suffers from excessive delegation must be evaluated
1
in light of the subject matter, the scheme, the provisions of the statute, including its preamble,
1
and the events and conditions against which the statute is enacted.

1
It was decided in Pandit Banarasi Das Bhanot v State of Madhya Pradesh7 that the authority to
tax is a well-recognized legislative power, and that the Legislature has considerable leeway to
1
delegate the power to figure out specifics of a tax policy. In upholding a power delegated to
the State Government for amending the Schedule relating to exemptions in a Sales Tax
legislation, Justice Venkatarama Aiyer observed that it is not unconstitutional for the
Legislature to delegate to the executive the determination of details relating to the operation of
taxation laws, such as the selection of persons on whom the tax is to be paid, the rates at which
it is to be charged in respect of different classes of persons, and the rates at which it is to be
charged in.

12 4
The Supreme Court held in Harishankar Bagla v State of MP8 that, while upholding the legality
of Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which gave the Central
Government broad powers to make orders regulating or prohibiting the production, supply, and
distribution of essential commodities, it was satisfied that it had laid a clear principle and
provided sufficient guidance. It was decided that the power granted by the provision should be

722
1958 AIR 909, 1959 SCR 427
8
1954 AIR 465, 1955 SCR 313

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 9
Control Mechanism of Delegated Legislation

12
used to preserve or increase supply of any vital product, or to ensure their equal distribution
and availability at reasonable prices.

20
There can be no doubt that the court will not invalidate legislation on the basis of delegation of
4
essential legislative functions or conferring unguided, uncontrolled, and vague powers on the
delegate without taking into account the preamble of the Act as well as other provisions of the
statute if they provide a good means of determining the meaning of the offending statute.

1
The Supreme Court held in Delhi Race Club Limited v. Union of India that there are two broad
principles in delegation of legislative functions:

 that delegation of non-essential legislative functions such as impost rate determination is

1
required to satisfy the diverse needs of a welfare state, but that before delegating such a
1
duty, a clear legislative policy must be established; and

 While delegating the ability to establish tax rates, there must be some direction, control,
protections, and checks provided by the Act in question.

1
It is obvious that the application of the second principle will not be raised unless the impost is
1
a tax. As a result, such delegation of a non-essential job is permitted as long as the legislative
policy is established in plain words and gives advice to the delegate.

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 Control Mechanism of Delegated Legislation

CHAPTER-3

1
3. CONTROL MECHANISM OVER DELEGATED LEGISLATION

Whatever prejudices there may have been against delegated legislation in the past, it is now
seen as unavoidable. Instead of arguing against it, it is more vital to consider the rules and
1
protections under which delegated law should operate in the country. There is no question that
the practice of delegated legislation implies the legislature's abdication of its legislative
responsibility to some extent. Administrative legislation is frequently used to address concerns
8
of principle. The system of delegated legislation significantly expands the executive's
1
capabilities while weakening the legislature's standing. It goes without saying that the power
of delegated legislation is a huge power in the hands of the executive: it is hardly less powerful
1
than legislative power in the hands of the legislature in terms of affecting private rights and
interests.9

It is undemocratic in the sense that, while legislation by the legislature is subject to the usual
democratic safeguards of publicity and debate within and outside the legislature, legislation by
the administration is not subject to these safeguards, and thus loses "that safeguard of liberty
which depends on the law-making power being exercised by the elected representatives of the
people who will be affected by the laws that are made."
1
When the representatives of the people do not properly regulate the development of the laws
1
that the people must obey, self-government is jeopardized."10 Delegated legislation is mostly
bureaucratic in nature. The issue of controls over delegated legislation becomes critical if the
executive is not to be able to act arbitrarily.

1
Control over delegated legislation can be of several varieties, including judicial, legislative,
and other types; the latter may include participation of affected groups in the rule-making
process, publishing of the rule, and so on.

91
M.P. Jain, Indian Constitutional Law 129 (1962).
10
Wade and Phillips, Constitutional Law 26 (6th Edn 1960)

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 Control Mechanism of Delegated Legislation

CHAPTER-4

4. CONTROL MECHANISM

Whatever prejudices there may have been against delegated legislation in the past, it is now
seen as unavoidable. Instead of arguing against it, it is more vital to consider the rules and
1
protections under which delegated law should operate in the country. There is no question that
the practice of delegated legislation implies the legislature's abdication of its legislative
responsibility to some extent. Administrative legislation is frequently used to address concerns
8
of principle. The system of delegated legislation significantly expands the executive's
capabilities while weakening the legislature's standing.

1
It is undemocratic in the sense that, while legislation by the legislature is subject to the usual
democratic safeguards of publicity and debate within and outside the legislature, legislation by
the administration is not subject to these safeguards, and thus loses "that safeguard of liberty
which depends on the law-making power being exercised by the elected representatives of the
1
people who will be affected by the laws that are made." When the representatives of the people
do not properly regulate the development of the laws that the people must obey, self-
11
government is jeopardized." Delegated legislation is mostly bureaucratic in nature. The issue
of controls over delegated legislation becomes critical if the executive is not to be able to act
arbitrarily.

18
a) Parliamentary Control: - Every delegate is subject to the authority and control of
the principle, and the principal can always direct, rectify, or cancel the exercise of delegated
power. As a result, parliament's control over delegated legislation should be preserved as a
fundamental requirement. Because of the extensive delegation of legislative powers and
the comprehensive standard oversight, judicial control has reduced, emphasizing the need
and necessity of parliamentary control.
Because the executive is accountable to the parliament, parliamentary control of delegated
legislation is implied as a basic constitutional role in India.

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 Control Mechanism of Delegated Legislation

Legislation is an inherent and inalienable right of Parliament, and it must be ensured that
this authority is not hijacked or violated by what is known as subordinate legislation. It has
the ability to control the following:

Normal Delegation: -
13
 Positive: - when the limitations of delegation are clearly established in the enabling Act
 Negative: - does not contain the authority to conduct certain things (these not allowed).

Exceptional Delegation: -
 The authority to legislate on questions of principle (policy)
 The authority to alter Acts of Parliament (In re Delhi laws Acts)

23 3
In W.B. State Electricity Board v. Desh Bandhu Gosh11, the court ruled that Regulation 34 of
the West Bengal State Electricity Regulation, which allowed the Board to terminate the service
of any permanent employer with three months' notice or compensation in lieu of notice, was
unconstitutional. Regulation 34's hire, and dismissal provisions are like Henry VIII's clause.

3
In the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly12,
wherein Rule 9 of the CIWTC's service rules conferred power to terminate on similar lines as
in the case of Desh Bandhu Ghosh, the court went on to say that no description of Rule 9(i) can
be given other than "the Henry VIII clause," It gives the Corporation full and arbitrary authority
and is thus unconstitutional.

18
b) Procedural Control: - Parliamentary authority over administrative rule is admittedly
weak since lawmakers are not often legal experts. As a result, there is a continuing quest
for an alternative mechanism that, in addition to giving effective surveillance over
administrative rule formulation, can ensure effective people engagement for netter social
communication, acceptability, and effectiveness of the regulations.

Procedural control mechanisms have the capacity to satisfy the above-mentioned

conditions for permitting particular audit of rules by people who would use them.

11
(1958) 3 SCC 116.
12
AIR1986SC1571.

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 9
Control Mechanism of Delegated Legislation

The procedural control mechanism consists of three parts:

 Drafting
24
 Antenatal publicity
 Consultation
 Postnatal publicity

21
c) Judicial Control: - Judicial Oversight of Delegated Legislation Judicial oversight over
delegated legislative is exercised at two levels:

(1) the delegation may be contested as unlawful; and

(2) the Statutory power may be applied illegally.

3
The delegation may be challenged in court as unlawful, disproportionate, or arbitrary. The
permitted scope of delegation is fairly broad. Delegation is permitted within broad limitations
as long as it does not violate constitutional prohibitions. The constraints created by applying
3
the rule of ultra vires are extremely obvious. If the Act of the Legislature under which authority
is assigned is unconstitutional, the legislature's delegation power will never be valid. There can
3
be no delegated law that contradicts the requirements of the Fundamental Rights. If the Act
breaches any Fundamental Rights, the rules, regulations, and byelaws enacted as a result of it
7
cannot be improved. Even though the Act is excellent, the rules and regulations may violate
any Fundamental Right and must be overturned. Aside from the constitutional challenge, the
delegated legislation may be challenged as exceeding the authority of the administrative body
that framed the rules and regulations. The rules' legitimacy might be challenged at this stage in
two ways: I that they contradict the provisions of the Act; and (ii) that they were formed more
than the power assigned by the Legislature.13

14
Despite the presence of Parliamentary Control, judicial control of delegated legislation is seen
as a necessary sort of control mechanism. The underlying premise for judicial authority is based
on the Courts' constitutional commitment to protect the rule of law. In a constitutionally
governed state, the judiciary's primary responsibility is to guarantee that the laws passed by

13 7
www.legalservicesindia.com/article Doctrine of Permissible Limits under Delegated Legislation. ... under the
Indian Constitution: of India.

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 Control Mechanism of Delegated Legislation

1
Parliament do not violate the Constitution and that the delegated legislation enacted under the
1
statute is consistent with both the parent statute and the constitution.

Furthermore, Article 13(3)(a) of the Constitution defines the term law as order, rules, byelaw,
1
regulation, and notification, emphasizing that state authorities should not attempt to take away
1
or abridge the rights conferred by Part III of the Constitution through laws made by legislatures
but also through subordinate executive laws. The judicial type of control is thought to be more
1
successful since the courts have the authority to strike down a legislation if it is in violation of
the parent laws or the Constitution. The judiciary is also tasked with the execution of the
procedural form of control, which determines the validity of the subordinate legislation making
process through the norms.

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 Control Mechanism of Delegated Legislation

CHAPTER-5

6
5. CONCLUSION
1
The Indian Constitution allows for delegated legislation. It exists in the form of byelaws, bye-
rules, regulations, orders, and so on. Modern legislation necessitates technicality and
6
professional understanding of a wide range of problems; our lawmakers, who are politicians,
are not expected to possess such expertise. In the event of a failure or fault in its application,
subordinate legislation is more flexible, rapidly, and readily amendable, and reversible than
regular legislation.

Justice P.B. Mukherjee has stated:-

"The term "delegated legislation" encompasses a wide range of ambiguity. It serves as a
justification for lawmakers, a cover for administrators, and a challenge to constitutional jurists.
It is lauded as a need and perceived as unavoidable in our environment, where social, economic,
technical, psychological, and administrative speed outpaces the spacious and tranquil
conventional legislative ideals and processes. It is characterized as a legislative abandonment
of authority and an escape from the obligation put on them by democratic voters. In England,
the monarch lost legislative authority at Runnymede, and parliament lost legislative power in
the rush that followed, leaving administration and bureaucracy to conduct rule for the
kingdom."

6
Adopting effective means of control is required to guarantee that the authority of delegated
5
legislation is not misused in the hands of the executive. In India, judicial oversight of delegated
legislation is comprehensive. The judiciary's constitutional status is such that its right to
evaluate legislation, whether directly from Parliament or via subordinate bodies, cannot be
restricted. A statute attempting to put statutory finality on subordinate legislation would not
bind the court.

However, it is argued that judicial control, by definition, can only be of limited usefulness. The
court may intervene to prevent abuse of authority or its use for purposes other than those to
8
which it has been granted. Any further intrusion by the courts will jeopardize the potentials of
delegated legislation—a procedure of unquestionable need and undeniable use.

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 Control Mechanism of Delegated Legislation

Effective legislative control over the misuse of delegated legislative powers must originate
6
from the legislature itself, first at the moment of delegation and then in the oversight of how
they are applied. The importance of public participation in the rule-making process cannot be
overstated. In a democratic society, the administration must respond to the needs and opinions
16
of individuals whose lives its regulations will affect.

There is no better indicator of a policy's effectiveness than its ability to respond to the true
needs of the people, eliciting sympathy, goodwill, and satisfaction. Finally, we must find
5
techniques for making the fast-expanding subordinate laws clearly available and
understandable to those affected. All of this must be done in India in order to develop an
efficient system of delegated legislation.

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