SAFEGUARDS AND CONTROLS ON DELEGATED

LEGISLATION

SUBMITTED TO

UNDER THE GUIDANCE OF

PROF. ADV. AAFREEN SHAIKH

SUBMITTED BY
ABDUL RAHIM SHAHID UKAYE

S.Y.LLB ‘A’
ROLL NO.
59

NOVEMBER, 2023
 LIST OF ABBREVIATION

AIR All India Reporter

V Verses
M.P Madhya Pradesh
U.P Utter Pradesh
DTC Delhi Transport Corporation
Ltd Limited
i.e That is
S.C Supreme Court
H.C High Court
DL Delegated Legislation
PSJS Punjab Superior Judicial Service
USA United State of America
UK United Kingdom
GCA General Clauses Act
 LIST OF CASES REFFERED

 Chintaman Rao v. State of M.P

 Sarbananda Sonowal v. Union of India
 Mohd. Yasin v. Town Area Committee
 Municipal Corporation of Greater Bombay v. Nagpal Printing Mills
 Tahir Hussain v. District Board, Muzaffarnagar
 Major Radha Krishan v. Union of India
 Chester v. Bateson
 Hindustan Times v. State of U.P
 Dwarka Prasad Laxmi Narain v. State of U.P
 Air India v. Nergesh Meerza
 DTC v. Mazdoor Congress
 Khoday Distilleries Ltd. v. State of Karnataka
 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India
 Shivdev Singh v. State of Punjab
 K. Nagaraj v. State of A.P
 Capt. B.D. Gupta v. State of U.P
 Morgan v. United States
 State of M.P. v. Tikamdas
 State of Kerala vs. P.J. Joseph
 Narendra Kumar vs. Union of India
 Govindlal vs. The Agricultural Product Market Committee
 INDEX

CHAPTER PAGE
PARTICULARS
NO. NO.
1. INTRODUCTION

1.1 Meaning of Delegated Legislation 1

1.2 Need For Control of Delegated Legislation 2

1.3 Control Mechanism of Delegated Legislation 3

2. JUDICIAL CONTROL OVER DELEGATED 4-5
LEGISLATION
2.1. 5-15
Substantive Ultra Vires

2.2 Procedural Ultra Vires 15-17

3. LEGISLATIVE CONTROL ON 18-19

DELEGATED LEGISLATION
3.1 19
Memorandum on Delegation
3.2 19-22
Laying Procedure

3.3 Scrutiny Committee 23-28

4. PROCEDURAL CONTROL OVER 28-30

DELEGATED LEGISLATION
4.1 30-31
Consultation

4.2 Publication 31-35

5. CONCLUSION AND SUGGESTION 36
REFERENCE 37
 CHAPTER I

INTRODUCTION

1.1. MEANING OF DELEGATED LEGISLATION

“Delegation” has been defined by Black’s Law Dictionary as an act of entrusting a

person with the power or empowering him to act on behalf of that person who has
given him that power or to act as his agent or representative. “Delegated
legislation” means exercising of legislative power by an agent who is lower in rank
to the Legislature, or who is subordinate to the Legislature. Delegated legislation,
additionally alluded to as an auxiliary legislation, is an enactment made by an
individual or body other than Parliament. Parliament, through an Act of
Parliament, can allow someone else or somebody to make enactment. An Act of
Parliament makes the system of a specific or particular law and tends to contain an
outline of the purpose for the Act. By delegating the legislation by Parliament to
the Executive or any subordinate, it empowers different people or bodies to
integrate more details to an Act of Parliament. Parliament along these lines,
through essential enactment (for example an Act of Parliament), licenses others to
make laws and guidelines through delegated legislation. The enactment made by
authorize person must be made as per the reason set down in the Act of
Parliament. 1

According to Sir John Salmond, “Subordinate legislation is that which proceeds

from any authority other than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was an
expression which covered a multitude of confusion. He viewed it as an excuse for
the Legislature, a shield for Executors and a provocation to the Constitutional
Jurist. According to M.P Jain, this term can be used in two senses: Exercise by
subordinate agency or agency that is lower in rank to legislature delegated to it by
the Legislature. The Subsidiary rules made by the Subordinate Authority in the
execution of the power bestowed on it by the Legislature.

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

legislation, and Quasi-Legislation.2

1
www.ipleader.com
2
www.ipleader.com

Page 1 of 37
1.2. NEED FOR CONTROL OF DELEGATED LEGISLATION

 The object of the delegated legislation is to provide the speedy, convenient,

technicality, etc., to the general public and lessen the work-load of the
Parliament.
 If the delegated legislative power is unfettered, the executive may turn to be
a tyrant.
 According to Lord Heward, there is the danger of the executive usurping the
legislative power under the cover of delegated legislation.
 If the delegated legislation is not properly controlled, it may result in the
development of "new despotism".
 The delegated legislation is inevitable and at the same time it may be misused.
 Excessive delegation is a danger to individual liberty.
 Uncontrolled and unregulated delegation may result in the abandonment of
the essential legislative function by the legislative and development of the
arbitrary executive power.
 Thus, there is a great need for the control of the exercise of the delegated
legislative power.3

1.3. CONTROL MECHANISM OF DELEGATED LEGISLATION

There are many reasons for introducing a control mechanism of delegated

legislation, such as:

1. It guarantees transparency and accountability in the legislative process.

Delegated legislation gives executive or subordinate agencies considerable
authority to implement laws without the involvement of the legislature.
Without adequate checks and balances, these authorities can misuse the
power delegated to them.

2. A check on these powers is made possible by the implementation of control

mechanisms, such as parliamentary control or judicial review, which
guarantees that the delegated law stays within the limits of its authority and
serves the public good.

3
Dr. S. R. Myneni, Administrative Law, Asia Law House

Page 2 of 37
 3. Control mechanisms serve as safeguards to make sure that the delegated law
does not violate the rights and freedoms of any individual or go beyond the
limits of its original purpose. This mechanism helps in preserving the rule of
law.4

THERE ARE THREE FORMS OF CONTROL OVER DELEGATED

LEGISLATION:

1. Judicial Control
2. Legislative Control
3. Procedural Control

Control Over Delegated Legislation

Judicial Control Procedural

Legislative Control
Control

SubstantiveProcedural MemorandenLaying on Scrutiny

Ultra ViresUltrs Vires DelegatiomProcedure ConsultationPublication
Committee

4
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Page 3 of 37
 CHAPTER II

JUDICIAL CONTROL OVER DELEGATED LEGISLATION

The delegated legislation can be challenged in India in the courts of law as being
unconstitutional, excessive and arbitrary. It can be controlled by the Judiciary on
two grounds i.e., firstly, it should be on the ground of substantial ultra vires and
secondly, it should be on the ground of procedural ultra vires. The criteria on
which the law made by the executive can be considered as void and null by the
court is that it should not be considered inconsistent by the constitution or ultra
vires the parent act from which it has got the power of making law. The power of
examining the delegated legislation in India has been given to the Supreme Court
and the High Court and they play an active role in controlling the delegated
legislation.5

Judicial Control Over

Delegated Legislation

Substantive Ultra Vires Procedural Ultrs Vires

2.1. JUDICIAL CONTROL

Delegated legislation does not fall beyond the scope of judicial review and in
almost all democratic countries, it is accepted that courts can decide the validity of
delegated legislation mainly applying two tests:

1. Substantive ultra vires

2. Procedural ultra vires

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"Ultra vires" means beyond power or authority or lack of power. An act may be
said to be "ultra vires" when it has been done by a person or a body of persons
which is beyond his, it’s or their power, authority or jurisdiction.

"Ultra vires" relates to capacity, authority or power of a person to do an act. It is

not necessary that an act to be ultra vires must be illegal. The act may or may not
be illegal. The essence of the doctrine of ultra vires is that an act has been done in
excess of power possessed by a person.6

2.2. SUBSTANTIVE ULTRA VIRES

When an Act of legislature enacts in excess of power conferred on the legislature

by the Constitution, the legislation is said to be ultra vires the Constitution. On the
same principle, when a subordinate legislation goes beyond what the delegate is
authorised to enact (and exceeds power conferred on it by the legislature), it acts
ultra vires. This is known as substantive ultra vires.

Power delegated by statute is limited by its terms and subordinate to its objects.
The delegate must act in good faith, reasonably, intra vires the power granted and
on relevant considerations. All decisions of the dele- gate, whether characterised as
legislative, administrative or quasi-judicial,

must be in harmony with the Constitution, parent Act and other laws of the land.
They must be reasonably related to the purposes of the enabling legislation. If they
are manifestly unjust or oppressive or outrageous or directed to an unauthorised
end or do not tend in some degree to the accomplishment of the objects of
delegation, court might well say, "Parliament never intended to give authority to
make such rules; they are unreasonable and ultra vires."7

CIRCUMSTANCES:

Delegated legislation may be held invalid on the ground of substantive ultra vires
in the following circumstances:

1. Where parent Act is unconstitutional.

6
Lecture on Administrative Law by C. K. Takwani
7
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Page 5 of 37
2. Where delegated legislation is inconsistent with parent Act.
3. Where delegated legislation is inconsistent with general law.
4. Where delegated legislation is unconstitutional.
5. Where delegated legislation is arbitrary.
6. Where delegated legislation is unreasonable.
7. Where delegated legislation is mala fide.
8. Where delegate further delegates (sub-delegation).
9. Where delegated legislation excludes judicial review.
10. Where delegated legislation operates retrospectively.8

1. Where Parent Act Is Unconstitutional

For delegation to be valid, the first requirement is that the parent Act or enabling
statute by which legislative power is conferred on the executive authority must be
valid and constitutional. If the delegating statute itself is ultra vires the
Constitution and is bad, delegated legislation is necessarily bad.

In Chintaman Rao v. State of M.P 1951 AIR 118, the parent Act authorised the
Dy. Commissioner to prohibit manufacturing of bidis in some areas during certain
periods. The order passed by the Dy. Commissioner under the Act was held ultra
vires in as much as the Act under which it was made violated the fundamental
right to carry on any occupation, trade or business, guaranteed by Article 19(1)(g)
of the Constitution.

In Sarbananda Sonowal v. Union of India (Sarbananda Sonowal) (2007) 1

SCC 174, it was held by the Supreme Court that if Parliament makes a law
exclusively for one State (Assam in this case), such law has to satisfy and pass the
test of Article 14 of the Constitution. Mere geographical classification is not
enough. It must have nexus with the object or purpose sought to be achieved by the
Act. In absence thereof the Act as also DL under the Act must be held ultra vires.

However, when the parent Act is challenged on the ground that it is

unconstitutional or ultra vires the powers of the legislature which enacted it, the
true nature and character of the statute should be ascertained. To do that one must
have regard to the enactment as a whole, to its Preamble, object scope and effect of
its provisions. If on such examination it is found that the legislation is in
substance on a matter
8
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Page 6 of 37
assigned to the legislature, then it must be held to be valid in its entirety, even
though it might incidentally trench upon matters which are beyond its competence.
For that purpose, courts have evolved the doctrine of "pith and substance" or "true
nature and character" of the statute.9

2. Where Delegated Legislation Is Inconsistent with Parent Act

The validity of delegated legislation can be challenged on the ground that it is ultra
vires the parent Act or enabling statute. It is an accepted principle that delegated
authority must be exercised strictly within the authority of law. Delegated
legislation can be held valid only if it conforms exactly to the power granted.

The parent Act provided for admitting duty-free animals especially imported for
breeding purposes. The regulation made under the Act required the animals to be
of a "superior stock" if they were to be admitted duty-free. The court held the
regulation ultra vires as the parent Act included all animals while the regulation
confined its operation to animals of a particular stock alone.

In Mohd. Yasin v. Town Area Committee 1952 AIR 115 10, under the parent Act,
the municipality was empowered to charge fee only for the use and occupation of
some property of the committee, but the Town Area Committee framed bye-laws
and imposed levy on wholesalers irrespective of any use or occupation of property
by them. The Supreme Court held that the bye-laws were beyond the powers
conferred on the committee and were ultra vires.

In Municipal Corporation of Greater Bombay v. Nagpal Printing Mills 1988

AIR 1009,11 the parent Act empowered the corporation to levy charge only in
respect of water supplied to and consumed by the consumer. The rule, however,
authorised levy of charges on the basis of minimum quantity irrespective of
consumption. The Supreme Court held the rule ultra vires and inconsistent with the
parent Act.

9
Lecture on Administrative Law by C. K. Takwani
10 Mohd. Yasin v. Town Area Committee 1952 AIR 115
11 Municipal Corporation of Greater Bombay v. Nagpal Printing Mills 1988 AIR 1009,

Page 7 of 37
In Tahir Hussain v. District Board, Muzaffarnagar AIR 1954 SC 630, the
parent statute enabled the District Board to make bye-laws for maintaining health,
safety and convenience of the inhabitants of rural area. In exercise of the said
power, the Board framed a bye-law prohibiting holding of cattle market. It was
held to be inconsistent with the provisions of the parent Act as also violative of
fundamental right under Article 19(1)(g) of the Constitution.

In Major Radha Krishan v. Union of India 1996 SCC (3) 507, the parent Act
(Army Act, 1950) prescribed period of limitation for taking disciplinary action
against army personnel. Delegated legislation (Army Rules, 1954), how-ever,
attempted to get over the bar of limitation. It was held that the rule was
inconsistent and ultra vires the parent Act.12

3. Where delegated legislation is inconsistent with general law

A subordinate legislation, apart from being intra vires the Constitution and
consistent with the parent Act, must also be in consonance with general law, i.e.
any other law enacted by the legislature. This is based on the principle that a
subordinate or delegated legislation made by the executive cannot be contrary to
the law of the land.

Thus, in Chester v. Bateson (1920), a regulation framed under the parent Act
prohibited the landlord from having access to a court of law to recover possession
of a dwelling, occupied by a war-worker, except with the con- sent of a Minister
and also imposed penalty for taking such proceeding. The regulation was held
illegal and inoperative as it deprived the king's subjects of their right to approach a
court of justice and rendered them liable to punishment in case, they had the
temerity to seek justice from any of the King's Courts.
The above principle has been accepted in India also.

In Hindustan Times v. State of U.P, Parliament, by an Act provided pension to

working journalists. The State Government, by executive instructions-imposed
levy on government advertisements on newspapers and deducted such levy from
pension fund of working journalists. The directive of the State Government was
held beyond legislative competence and ultra vires the Constitution.

12
Lecture on Administrative Law by C. K. Takwani

Page 8 of 37
A rule debarring promotion to a Civil Judge as Asst. Judge crossing the age of 45
years was held illegal. On the same reasoning, a rule framed by the Bar Council
prohibiting a person from getting enrolment as an advocate if he has completed 45
years of age was held illegal and unlawful.13

4. Where delegated legislation is unconstitutional

Sometimes a parent Act or delegating statute may be constitutional and valid and
delegated legislation may be consistent with the parent Act, yet the delegated
legislation may be held invalid on the ground that it contravenes the provisions of
the Constitution. It may seem paradoxical that a delegated legislation can be struck
down on this ground because if the parent Act is constitutional and delegated
legislation is consistent with the parent Act, how can the delegated legislation be
ultra vires the Constitution? It was precisely this argument which the Supreme
Court was called upon to consider in Narendra Kumar v. Union of India"
(Narendra Kumar).

In Dwarka Prasad Laxmi Narain v. State of U.P 1954 AIR 224, the U.P. Coal
Control Order, 1953 was issued under the Essential Supplies (Temporary Powers)
Act, 1946. Even though the parent Act was constitutional, clause 3(2)(b) of the
Order was held ultra vires by the Supreme Court being violative of Article 19(1)
(g) of the Constitution. Similarly, Rule 10 of the Punjab Superior Judicial Service
Rules, 1963 conferring power on the Governor to confirm District Judges was held
ultra vires the provisions of Articles 233 and 235 of the Constitution. 52 Likewise,
a PSJS rule restricting voting rights for the management of Jain temples to persons
who had attained the age of 21 years, who had donated not less than 500 to the
temple and who were residing within the State for the last to years was held
discriminatory and, therefore, ultra vires. In D.S. Nakara v. Union of India, the
Supreme Court held that pension scheme providing higher pension to a
government servant retiring before a particular date and lower pension to others
retiring after such cut-off date was arbitrary, discriminatory and ultra vires. The
classification does not stand the test of Article 14.

In Air India v. Nergesh Meerza 1981 AIR 1829, a regulation framed by Air India
providing that services of an Air Hostess could be terminated if she became
pregnant was held arbitrary, unreasonable and violative of Articles 14 and 15 of
the
13
Lecture on Administrative Law by C. K. Takwani

Page 9 of 37
Constitution. On the same analogy, a provision in service rules enjoining a female
employee to obtain permission of the government before solemnising marriage and
denying right to get appointment on the ground that she was married was held bad.

In DTC v. Mazdoor Congress 1991 AIR 101, a regulation conferring power on

the authority to terminate services of a permanent employee by giving him three
months’ notice was held to be arbitrary and ultra vires Article 14 of the
Constitution.

A rule allowing an employee to retire on completion of 30 years of service

reaching the age of 58 years, whichever is earlier, is valid. But if a rule empowers
the government to retire a government servant who vice or on had completed 30
years of government service without any guidelines or norms in exercise of
executive power, it must be declared arbitrary and ultra vires Articles 14 and 16 of
the Constitution.14

5. Where delegated legislation is arbitrary

A subordinate or delegated legislation should not be arbitrary.

In India, arbitrariness is not a separate ground for declaring a subordinate

legislation ultra vires or invalid. It comes within the embargo of Article 14 of the
Constitution. Any enquiry into the vires of delegated legislation must be confined
to the grounds on which plenary legislation may be questioned, i.e., whether the
delegated legislation is offending Article 14 of the Constitution.

In Nergesh Meerza, a regulation providing termination of services of an Air

Hostess if she became pregnant was held to be extremely arbitrary. Similarly, a
rule framed by the Bar Council debarring a person from enrolment as an Advocate
if he had crossed 45 years of age was declared arbitrary.

But in order to strike down a delegated legislation as arbitrary, it has to be

established that it is unreasonable as also manifestly arbitrary. The tests of
arbitrariness applicable to executive action do not necessarily apply to delegated
legislation.

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Page 10 of 37
In Khoday Distilleries Ltd. v. State of Karnataka 1995 SCC (1) 574, it was
contended that the Liquor Rules framed by the States were arbitrary and ultra
vires. The Supreme Court dealing with the argument observed that every delegated
legislation must, undoubtedly, satisfy the test of Article 14 of the Constitution.
One must, however, bear in mind the distinction between an executive action and a
delegated legislation.

The tests of arbitrary action which apply to executive actions do not necessarily
apply to delegated legislation. In order that delegated legislation can be struck
down, such legislation must be manifestly arbitrary; a law which could not be
reasonably expected to emanate from an authority delegated with the law-making
power.15

6. Where delegated legislation is unreasonable

(i) England

In England, it is well-settled that the bye-laws made by corporations, boroughs and

other local bodies may be declared ultra vires on the ground of unreasonableness.
This rule is based on a presumed intention of the legislature that common law
allows them to make only reasonable bye-laws. This is an implied limitation on the
exercise of powers by such authorities, and, therefore, if the power is not
reasonably exercised, the action is bad in law.

A bye-law made by a corporation required the landowner of a lodging house to

cause the premises to be cleansed once a year, and penalty was imposed for breach
of the said bye-law. The court held the bye-law ultra vires and unreasonable, as the
premises might have been leased by the landlord and he might be unable to carry
out the work without commit- ting trespass. 16

(ii) India

The above principles have been accepted in India.

In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India 1986 AIR
515, the Supreme Court ruled that subordinate legislation does not enjoy the same

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Administrative Law by Dr. J. J. R. Upadhyaya
16
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Page 11 of 37
degree of immunity as substantive legislation enjoys. "Unreasonableness" is one of
the grounds of judicial review available to test validity of delegated legislation. If a
delegate intends to impose a condition, which is unreasonable, it cannot be held
legal or valid.

Thus, in Nergesh Meerza, a regulation framed by Air India providing termination

of services of an Air Hostess on her first pregnancy was held to be extremely
arbitrary, unreasonable, abhorrent to the notions of a civilised society and
interfering with the ordinary course of human n It is "not a disability but one of the
natural consequences of marriage and nature is an immutable characteristic of
married life.17

7. Where delegated legislation is mala fide

Indian administrative law is based on the principle that power must be exercised in
good faith. Power to make delegated legislation cannot claim immunity from
judicial review if the power has been excised by the rule-making authority mala
fide or with dishonest intention.
It may, however, be stated that the decisions of the Supreme Court are not
consistent on the point and there is cleavage of opinion.

In Shivdev Singh v. State of Punjab 1963 AIR 365, under the Pepsu Tenancy
and Agricultural Lands Act, 1955, rules were framed by the State Government It
was contended that the standards of yields prescribed in Schedule C under Rule 31
were arbitrary, unreasonable, unrealistic, unattainable and the same was in mala
fide exercise of power by the statutory authority.

In K. Nagaraj v. State of A.P 1985 AIR 551, on the other hand, an Ordinance
issued by the Andhra Pradesh Government reducing the age of government
employees from 58 years to 55 was challenged, inter alia, on the ground of mala
fide exercise of power. The Supreme Court rejected the contention observing that
this kind of "transferred malice" is unknown in the field of legislation.

Again, in Captain B.D. Gupta v. State of U.P AIR 1991 SC 526, the court stated,
"It is well-settled that no legislation can be challenged on the ground of mala
fides".

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Lecture on Administrative Law by C. K. Takwani
Page 12 of 37
It is submitted that the above observations are very wide and do not lay down
correct law. When a statute is enacted by a competent legislature.18

8. Where delegate further delegates (sub-delegation)

This topic can be studied under three sub-heads:

1. Sub-delegation of legislative power.

2. Sub-delegation of judicial power.
3. Sub-delegation of administrative power.

1. Sub-delegation of legislative power:

As discussed above, the maxim "DELEGATUS NON POTEST DELEGARE" (a

delegate cannot further delegate) applies to delegated legislation also and it is not
possible for the delegate to sub-delegate the power conferred on him unless the
parent Act authorises him to do so either expressly or by necessary implication.
Assuming that the sub-delegation is permissible under the parent Act, what are the
limitations and safeguards in this regard? The following propositions may be laid
down:

a) If the parent Act permits sub-delegation to officers or authorities not below

a particular rank, then the power can be delegated only to those officers or
authorities.
b) Sub-delegate cannot act beyond the power conferred on him by the delegate.
c) If some conditions are imposed by the delegate which must be com plied
with by the sub-delegate before the exercise of power, those conditions must
be fulfilled, otherwise exercise of power will be ultra vires.

2. Sub-delegation of judicial power:

In England and in America, it is well-established that a judicial or quasi-judicial

power conferred on a particular authority by a statute must be exercised by that
authority and cannot be delegated to anyone unless such delegation is authorised
by the statute either expressly or by necessary implication.

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Page 13 of 37
In Morgan v. United States, the Supreme Court of America held that the duty to
decide cannot be performed by one who has not considered evidence or argument.
It is not an impersonal obligation. It is akin to that of a judge. The one who decides
must hear.

3. Sub-delegation of administrative power:

In certain circumstances and on certain conditions, administrative power can be

sub- delegated.19

9. Where delegated legislation excludes judicial review

The rule of law has always recognised power of judiciary to review legislative and
quasi-legislative acts. The validity of a delegated legislation can be challenged in a
court of law. As early as 1877 in Empress v. Burah, the High Court of Calcutta had
declared Section 9 of Act XXII of 1869 ultra vires. Though the decision of the
Calcutta High Court was reversed by the Privy Council", neither before the High
Court nor before the Privy Council it was even contended that the court had no
power of judicial review and, therefore, cannot decide the validity of the
legislation.

Sometimes, however, attempts are made by the legislature to limit or exclude

judicial review of delegated legislation by providing different modes and methods.
Thus, in an Act a provision may be made that rules, regulations, bye-laws, etc.
made under it "shall have effect as if enacted in the Act", "shall be final", "shall be
conclusive", "shall not be called in question in any court", "shall not be challenged
in any legal proceedings whatsoever" and the like.20

The question is whether in view of these provisions judicial review of delegated

legislation is ousted?

Sometimes, provisions are made in a statute by which the orders passed by

administrative tribunals or other authorities are made "final". This is known as
"statutory finality". Such clauses are of two types:

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Page 14 of 37
1. Sometimes no provision is made for filing any appeal, revision or reference to
any higher authority against an order passed by the administrative tribunal or
authority.
2. Sometimes an order passed by the administrative authority or tribunal is made
final and jurisdiction of civil court is expressly ousted.

10. Where delegated legislation operates retrospectively

It is well-settled that delegated legislation cannot have any retrospective effect

unless such a power is conferred on the rule-making authority by the parent Act.
The legislature can always legislate prospectively as well as retrospectively subject
to the provisions of the Constitution. But the said rule will not apply to
administrative authorities exercising delegated legislative power.

In State of M.P. v. Tikamdas AIR 1975 SC 1429, the Supreme Court observed:
There is no doubt that unlike legislation made by a sovereign legislature, sub-
ordinate legislation made by a delegate cannot have retrospective effect unless the
rule-making power in the concerned statute expressly or by necessary implication
confers powers in this behalf.21

2.3. PROCEDURAL ULTRA VIRES

When a subordinate legislation fails to comply with procedural requirements

prescribed by the parent Act or by a general law, it is known as procedural ultra
vires.
While framing rules, bye-laws, regulations, etc., the parent Act or enabling statute
may require the delegate to observe a prescribed procedure, such as holding of
consultations with particular bodies or interests, publication of draft rules or bye-
laws, laying them before Parliament, etc. It is incumbent on the delegate to comply
with these procedural requirements and to exercise the power in the manner
indicated by the legislature. Failure to comply with the requirement may invalidate
the rules so framed.

It is binding on the delegated legislation to comply with these procedural

requirements, and if such procedural requirements are not followed, then the rule so

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formed will be invalidated. But these procedural requirements are not always
mandatory.

At the same time, however, it is also to be noted that failure to observe the
procedural requirements does not necessarily and always invalidate the rules. This
is because there is a distinction between mandatory requirements and directory
requirements. In this work, though we are not concerned with the distinction
between the two, we may say that generally, non-compliance with a directory
provision does not invalidate subordinate legislation, but failure to observe a
mandatory and imperative requirement does. "It is a well-settled rule that an
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a
directory enactment be obeyed or fulfilled substantially.22

The following two procedural requirements may now be discussed:

1. Publication:
It is a fundamental principle of law that "ignorance of law is no excuse"
(IGNORANTIA JURIS NON EXCUSAT). But there is also another equally
established principle of law that the public must have access to the law and they
should be given an opportunity to know the law. The very justification for that
basic maxim is that the whole of our law, written or unwritten, is accessible to the
public- in the sense, of course, at any rate, its legal advisers have access to it, at
any moment, as of right.184 As observed by Domatis, "all laws ought either to be
known or at least laid open to the knowledge of all the world in such a manner,
that no one may with impunity offend against them, under pretence of ignorance".
Lord Attain rightly stated, "[T]he fact is that there is not and never has been a
presumption that everyone knows the law. There is the rule that ignorance of law
is no excuse, a maxim of very different scope and application.

In case of an Act made by Parliament this poses little difficulty as it references to a

Select Committee and its report thereon, reading before receives sufficient
publicity during the introduction of a Bill, printing, the House or Houses,
discussion, voting, final approval of the Bill, radio and newspaper reports thereon,
etc. But this is not true in the case of delegated legislation. 23

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2. Consultation:
One of the techniques adopted by courts to control exercise of power by executive
against abuse of power is the process of consultation with affected interests before
delegated legislation or statutory instrument is prepared. It is indeed a visible
safeguard against possible misuse of power by the rule-making authority.

The term "consult" implies a conference of two or more persons or an impact of

two or more minds in respect of a topic in order to enable them to evolve a correct
or, at least satisfactory solution of a problem. It is a process which requires
meeting of minds between the parties to consultation, on material facts, to come to
a right conclusion.
An important measure to check and control the exercise of legislative power by the
executive is the technique of consultation through which affected interests may
participate in the rule-making process. This modus operandi is regarded as a
valuable safeguard against misuse of legislative power by the executive
authorities. As Wade and Philips remark:
One way of avoiding a clash between department exercising legislative powers and
the interest most likely to be affected is to provide for some form of consultation.
This process of exchange of ideas is beneficial to both: to the affected interests
itself insofar as they have an opportunity to impress on the authority their point of
view; and to the rule-making authority insofar as it can gather necessary
information regarding the issues involved and thus be in a better position to
appreciate a particular situation. The administration is not always the repository of
ultimate wisdom; it learns from the suggestions made by outsiders and often
benefits from that advice. A consultative technique is useful in balancing
individual interests and administrative exigencies. The purpose is to allow
interested parties to make useful comment and not to allow them to assert their
right to insist that the rule to take a particular form. It acts as an important brake on
administrative absolutism.24

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 CHAPTER III

LEGISLATIVE CONTROL ON DELEGATED LEGISLATION

One of the most significant developments of the present century is the growth in
the legislative powers of the executive. The development of the legislative powers
of the administrative authorities in the form of the delegated legislation occupies
very important place in the study of the administrative law. We know that there is
no such general power granted to the executive to make law; it only supplements
the law under the authority of legislature. Such type of power is known as
delegated legislation.
Since legislation is the function of the Legislature, it is not only its right rather a
duty of the Legislature to see as to how its delegate carries out the function
entrusted to it. It is said to be for the Legislature primarily, to supervise and control
the exercise of the delegated power by its delegate and to ensure against the danger
of its objectionable, abusive and unwarranted use by the Administration. This
function is commonly known as "Legislative control of Delegated Legislation."25

Legislative Control On Delegated Legislation

Scrutiny Committee
Memoranden on Delegatiom Laying Procedure

In India, the Parliamentary control of delegated legislation follows the same

pattern as in England. The direct modes of general control over delegated
legislation by the Parliament are-

i) through debates on the Acts which contain delegation;

ii) through questions and notices;
iii) through moving resolutions and notices in the Houses;

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iv) through vote on grant.

Parliament also has direct special control over the delegated legislation as a
safeguard against the self-effacement. A three-pronged control is exercised by the
legislature over delegated legislation as under.

i) proposal for delegating power,

ii) requirement of laying; and
iii) committee on subordinate legislation.

3.1. Memorandum on Delegation (Proposal for delegating power through

Memorandum)
Rule 70 of the Rules of Procedure and Conduct of Business in Lok Sabha and Rule
58 of the Rules of Procedure and Conduct of Business in Rajya Sabha provides:
Memorandum regarding Delegated legislation:
A Bill involving proposal for the delegation of legislative power shall further be
accompanied by a memorandum explaining such proposals and drawing attention
to their scope and stating also whether they are of normal or exceptional
character.26 The purpose of the memorandum is to invite the attention of the
Members of Parliament to the provisions of delegation of legislative power. This
practice is in vogue Since 1954. This method of control has not been proved to be
of much effect. The memorandum usually does not provide sufficient information.
The Committee of Lok Sabha on Subordinate Committee has suggested that
the memorandum attached to the bill involving proposal for delegation should
state the effect of delegation, purpose of delegation, the authorities who are to
exercise the power so delegated, the manner in which the power is to be exercised
etc.

3.2. Laying Procedure (Requirement of 'Laying on the Table)

'Laying on the Table' means putting the subordinate legislation before the
Parliament. The executive is authorising to legislate by the supreme legislative
authority. The law made by the subordinate authority shall have to submit for the
verification of the Parliament. It is called 'Laying on the Table'. 'Laying on the
Table' is a check on the subordinate authorities. By it, the Sovereign could know
what the subordinate authorities did, how for it performed its duty, whether it
exceeded its

26
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limits, etc. If necessary, it makes debate and voting, k also question the
subordinate authority if the defects and excess are found in the legislation.

According to select Committee on Delegated Legislation, the following are

different kinds of 'laying on the Table'.27

1) Simple Laying (Informal Laying):

It is an informal manner. The delegated legislation is required by the Enabling or

Parent Act to be laid before Parliament and it becomes operative as soon as it is
laid before the House. Its object is to inform the members of the House about the
delegated legislation made by the administrative authorities. Here there is no
effective control at all simple laying is merely directory and non laying would not
make the order void.

2) Laying Subject to Annulment:

In laying subject to annulment, the delegated legislation comes into effect as soon
as it is laid on the table of the House but it shall cease to have effect in case it is
annulled by a resolution of the House. This type of laying is a check on the rule
making power of the executive.

3) Laying subject to affirmative resolution:

Sometimes the statute making delegation provides that the delegated legislation
made by the delegate shall come into effect only when it is approved by the House
through resolution. The delegation legislation cannot come into effect until a
resolution approving it is passed in the House. It provides more effective control
over delegated legislation.28

4) Laying subject to negative resolution:

If there is a provision for such laying in the Act making delegation, the draft rules
are required to be placed before the House and they shall come into force after 40
days from the date of laying, unless they are disapproved by the House before that

27
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period. This type of laying also provide Parliament opportunity to scrutinise the
delegated legislation and exercise its control over it.

5) Laying in draft, subject to an affirmative resolution:

In this kind of laying, draft rules are laid before Parliament and they come, into
effect only when a resolution approving them has been passed by each House of
Parliament. The draft rules shall not have any effect unless approved by the
Parliament.

6) Laying with immediate effect but requiring affirmative resolution as a condition

for continuance:

This form of laying is convenient where strict Parliamentary supersession as well

as prompt operation of delegated legislation are essential but keeps it alive which
would otherwise die without such conformation. It is often used in case of taxation
when prior notice to the subject might be prejudicial. Subordinate law made under
emergency powers are also generally subject to this provision.29

In India Laying on the Table has not been made compulsory and mandating.

However, the instance of these 'laying' provisions found in India. Immigration Act,
1932, Insurance Act, 1938, Agriculture Products Act, 1938, Motor Vehicles Act,
1939 Central Excise Act and Salt Act, 1944, Indian Air Craft Act, 1944 made
provisions that the rules framed thereunder must be laid on the table of the House.
Only in few Acts i.e., Insurance Act, 1938 and Aircraft Act, 1904, provision was
made for laying subject to a negative resolution. Three other Acts, namely,
Representation of the People Act, 1951 Indian Services Act, 1951, and Indian
Development and Regulation Act, 1951 contain only the right of modification of
the rule and not amendment. The Indian Tariff (Amendment) Act, 1950, provides
an illustration where the rules are made subject to laying with affirmative
resolution.30

In India, there is no general law requiring all the delegated legislation to be laid
before the legislature. Whether a rule or regulation is required to be laid before the
legislature or not depends on the wording of the Act making delegation. With the

29
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30
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object of bringing uniformity in the laying procedure, the Committee on
Subordinate Legislation suggested that every Act making delegation should lay
down that the rules etc., made thereunder by the delegate shall be laid before the
legislature as soon as possible. The Committee also suggested that the rules shall
be laid on the table of the House for a total period of 30 days before the date of
their publication. The Government did not accept this formula. However, after
discussion, the following formula has been evolved -All rules made under this Act
shall be laid, as soon as may be after it is made, before each House of Parliament,
for a total period of 30 days which may be comprised in one session or in two or
more successive sessions and shall be subject to such modification, as Parliament
may make or shall be subject to the annulment by Parliament, however, the
modification or annulment shall be without prejudice to the validity of anything
done previously under the rule.

The laying procedure enables the members of the House to scrutinise the
subordinate legislation and thereby to exercise control over it.

3.3. Scrutiny Committees

The need for Parliament any committee to control and check delegated legislation
has been felt because of the fact that though majority of the delegated legislation
are placed before the House, in practice all or most of it escape without much
scrutiny by the House. To make the Parliamentary control more effective in
England, the Committee on Minister's powers, recommended for a Select
Committee of the House for the purpose. In view of this recommendation the
Select Committee on Instruments was established in the House of Commons in
1944.

Dr. Ambedkar in 1950 suggested in the House that like Standing Committees in
House of Commons in Great Britain, in India too there should be a Committee in
Lok Sabha. He further suggested that such committee would examine delegated
legislation and would bring to the notice of Parliament whether delegated
legislation has exceeded the original intentions of Parliament or has departed from
it or has affected any fundamental principles. Accordingly, 2 committee was
formed on 1st December, 1953, known as committee on subordinate legislation of
the Lok Sabha.31

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Constitution of the Committee

Originally the Committee consisted of 10 members. The number has been

increased to 15. All members are nominated by the speaker for one year. A
Minister cannot be nominated to the Committee. If a member is appointed a
Minister, be ceases to be a member of the Committee from the date of such
appointment. The Chairman of the Committee is also nominated by the speaker
from among the members of the Committee. Before making nominations, as per
convention, the speaker consults different party leaders and groups in the House.
The quorum of the Committee is, as nearly as may be, one third of the total
membership. In the absence of the quorum no business can be transacted. The
Committee has the power to take evidence and summon the witnesses. It has the
power to send for persons, papers and records. Disobedience to the Committee
amounts to a breach of privilege of the House. The Government may, however,
decline to produce a document on the ground of public interest. The Committee
may also invite the opinion of the Attorney-General.32

On the pattern of this committee in the Lok Sabha, a committee on subordinate

Legislation has been formed in Rajya Sabha as well. The Committee of Rajya
Sabha was appointed in 1964. It also consists of 15 members who are nominated
by the Chairman of the Rajya Sabha. The Chairman of the Committee is also
appointed by the Chairman of the House. With the institution of Rajya Sabha
Committee Parliamentary Control of delegated Legislation in India has become
more effective, for, the two committees of both the Houses can scrutinise many
more rules per year than could have been done by one Committee. Each
Committee is to scrutinise orders before the House.

Main functions of the Committees

The Committees on Subordinate legislation are effective watchdogs of Parliament

on the exercise of delegated legislative power. The nature of the work of the
committees is of technical and specialised nature. The Committee reports to the
Houses and makes recommendations. The functions or duties of the committees as
given in Rule 320 of the Rules of Procedure and conduct of Business of Lok Sabha
are as under:

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1) Whether delegated legislation is in accordance with the general objects of the
constitution or the Act pursuant to which it is made;
2) Whether it contains matter which, in the opinion of the Committee, should more
properly be dealt with in an Act of Parliament;
3) Whether it contains imposition of any tax;
4) Whether it directly or indirectly bass the jurisdiction of the Courts;
5) Whether it gives retrospective effect to any of the provisions in respect of which
the constitution or the Act does not expressly give any such power,
6) Whether it involves expenditure from the consolidated fund of India or the
public revenues;
7) Whether it appears to make some unusual or unexpected use of the powers
conferred by the Constitution or the Act pursuant to which it is made
8) Whether there appears to have been unjustifiable in its publication or in laying it
before Parliament; and
9) Whether for any reason its form or purport calls for any elucidation.33

In this way the Committees on Subordinate Legislation in India performs useful

works by scrutinising the orders, rules, regulation etc., made by the Executive in
the capacity of delegated. Parliament in India exercises an effective control
through this Committee.34

The Committee place reports before the respective Houses. The Committee may
also bring to the notice of the House to which it belongs any other matter relating
to the rules which it thinks deserves the notice of the House. The Committee may
report, along with the grounds, its view that rules may be annulled wholly or in
part or amended in any respect.
The Committee, if it deems necessary, examine the representation of the concerned
ministry while considering the rules.
The reports of the Committee are not discussed in the House but the government
gives the weight to the views of the Committee and seeks to implement the
suggestions made therein.
The reports of the Committee are very instructive and informative as they throw a
flood of light on the way the institution of delegated legislation functions in India.

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Recommendations of the Committee on Subordinate Legislation in Lok Sabha
regarding Parliamentary Control.35

Some of the recommendations of the Committee are:

1) Regarding tax and other financial levy, the Committee was of the view that it
should be imposed only through statutes and not through delegated legislation.

2) The Committee expressed its strong opinion that exclusion of jurisdiction

should never be done through delegated legislation and if it is imminently
necessary it should be done through the Parent Act.

3) The Committee has criticised some delegated legislation as it was made in

complicated language containing ambiguities, which make it difficult for the
general public to understand. It advised that the language of the delegated
legislation must always be simple.

4) The Committee was not in favour of giving retrospective operation to the

delegated legislation unless the power to do so has been expressly conferred by the
Parent Act.

5) When rule making power is conferred on the executive there should not be
inordinate delay in making the rules by the case in period for making the rules
administration and in no should exceed six months.

6) The Committee suggested to avoid sub-delegation in very wide language.

delegation. It strongly pleaded for some safeguards at every stage of sub-
delegation.

7) Sufficient publicity must be given to all kinds of delegated legislations.36

8) Rules should contain short titles, explanatory notes, references to earlier

amendments for ready references and proper understanding.

9) In many cases the committee has recommended that certain provisions made
through delegated legislation might have been incorporated in the Parent Act itself.

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10) The final power of interpretation of rules should not be vested in the rule-
making authority.

11) The principles of natural justice have to be observed where an individual is

adversely affected by administrative action under the rules.

12) Guide lines should be laid down for the exercise of discretion and that a
wide discretion should not be conferred on an officer.

13) The "Removal of Difficulties" clause in the rules, it should be avoided.

14) The rules be published in the Gazette of India with a view to make easy and
convenient to the people to locate then even when the Parent Act does not require
publication of rules.

15) The Committee has stated that where draft rules are published to invite
comments from the public sufficient time (at least 30 days) must be given to the
public for the purpose of understanding the rules.37

The Committee rendered valuable service by submitting suggestions of varied

nature as given above. Further it considered the question of bringing about
uniformity in the provisions of Act providing for the delegation of legislative
power. It made certain recommendations in the first report, which was modified to
a certain extent in third report in 1955. The recommendations for the uniformity in
the provisions of Act providing for the delegation of legislative power are:

(1) That in future the Acts containing provisions for making rules etc. shall lay
down that fresh rules shall be laid on the table as soon as possible;
(2) That all these rules shall be laid down on table for uniform and total period of
30 days before the date of their final publication.

Provided that where it is not deemed expedient to lay any rule on the Table before
the date of publication, such rule may be laid as soon as possible, after publication.
An explanatory note should however, accompany such rules at the time they are so
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laid explaining why it was not expedient to lay these rules on the table of the
House before they were published; and

(3) That in future the Acts authorising delegation of rulemaking power shall
contain express provisions that the rules made thereunder shall be subject to such
modification as the House may like to make.

In 1968, the Committee suggested that the rules must be placed before the Houses
as soon as possible. Any delay in laying rules before the Houses on account of
inadvertence on the part of minister should be avoided.38

In its 14th report in 1974, the Committee of Lok Sabha on subordinate legislation
made a strong recommendation requiring the Government to examine the Acts
which do not provide for the laying and to incorporate the same invariably. It also
recommended for the amendment for the General Clauses Act to provide for
laying of the rules before Parliament.

The role of the Committee is not only critical but also preventive. Though the
Committee scrutinise very small number of delegated legislations, the existence of
these Committees serves as a deterrent to the administrative agencies to frame
delegated legislation within its limits.39

38
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 CHAPTER IV

PROCEDURAL CONTROL OVER DELEGATED

LEGISLATION

Certain Procedural safeguards have been provided to control the power of

administrative authorities. Cecil Carr suggests the following points to keep
constant watch over the exercise of the power by the executive.

Procedural Control Over Delegated Legislation

Consultation Publication

i) the authority exercising delegated legislation should be identifiable and trust

worthy;
ii) the limits of delegated authority should be clearly defined,
iii) the interest likely to be affected should be consulted;
iv) the rules, etc., should receive enough publicity.
v) there should be a provision for revocation or amendment of the rules.40

Procedural Control can be exercised through the following methods:

i) Drafting by experts;
ii) Prior consultation of interests likely to be affected by proposed delegated
legislation;
ii) Prior publicity of proposed rules and regulation (Antenatal Publicity);
iv) Publication of delegated legislation (Postnatal Publicity).41

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1. Drafting by expert draftsman

The drafting of delegated legislation by an expert draftsman who is at the same

time, in a position to advise whether the proposed rules and regulations are intra
vires is obviously a valuable safeguard. It is no denying the fact that, in the
absence of this safeguard in India, poorly drafted rules in many situations, create
great hardship to the people.42

2. Prior Consultation with affected interests

In this USA, the Administrative Procedure Act, 1946 shakes it obligatory for every
federal administrative agency to afford interested persons "an opportunity to
participate in the law-making." This technique of consultation is called the
"democratization of the rule making process".

In the UK, consultation is not subject to statutory procedure, but it is an accepted

practice. According to Sir Cecil Carr. It is unthinkable that any important rules
would be made about solicitors in England without consulting the Law Society or
about doctors without consulting British Medical Association or about Local
Government without consulting the Country Councils Association and the
Associations of Municipal Corporation. The Minister of Health and Transport, the
Board of Trade, the Procurator-General and Treasury Solicitors, the First
Parliamentary Counsel and others, all gave evidence before the Donough more
Committee on Ministers, Powers that practice was wide spread, desirable and
inevitable. Many a time practice has been adopted that when proposed regulations
are to be adopted, all the concerned associations whose interests are to be affected
are informed about them and their representations are invited, objections heard and
if proper alterations are made"

In India, too, there is no general law requiring consultation with affected persons
while informal consultation is practised, certain statutes specifically provide for
consultation. The General Clauses Act, 1897 provides in Section 23 that where an
GCA requires previous publication of delegated legislation. any person affected by
the rules or bye-laws can make suggestions or file objections. Such suggestions or
objections will be considered by the authority making delegated legislation.

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37
The purpose of prior consultations of the affected interest is to know their view
points and to minimize the objections to administrative legislations. This technique
would also be useful in avoiding improper use of rule making power by the
executive. It also needs the rule-making authority to ensure that they are fully
apprised of all the problems which they are supposed to deal with by the rules. If
necessary, they would make necessary adjustments in the rules.

4.1. CONSULTATION

In India the provisions for prior consultation made in the enabling Act may be
granted into five possible headings.

i) Official Consultation with a named body

Certain statutes provide that delegated legislation may be affected after

consultation with certain specialised official bodies with a view to get help in rule-
making. The Banking Companies Act provides for prior consultation with the
Reserve Bank of India before making rule under the Act. Similarly, the
Representation of People Act, 1950 requires that the Central Government before
making rules shall consult the Election Commission of India.

ii) Consultation with Administrative Boards

The Mines Act, 1901 sets up Administrative Board to advise the government and
makes obligatory prior consultation with the Board before the Central Government
can make rules under this Act.

iii) Consultation with Statutory Board in charge of a particular subject Under the
Tea Board Act, the Tea Board has been constituted as a stationary body in charge
of the whole subject of the cultivation, development and marketing etc., The Act
makes it obligatory to consult this Board before the government can frame rules
under this Act.43
iv) Consultation with interested persons

Law authorised the municipalities to frame rules for the imposition of tax but made
it obligatory to publish draft rules in a Hindi daily and consult the inhabitants of
the
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area who are to be affected by such tax. Similarly, in Industrial Development and
Regulation Act, representations from industry and the public are invited.
Amendments to the Food Adulteration Rules and standards for food items and
similarly for drugs and cosmetics as well as rates of minimum wages call for
representations and suggestions from the general public by publishing the draft
rules in the official gazette. This growing awareness of the need to invite people's
participation is certainly a healthy development in administrative rule making in
India.

v) Preparation of rules by the affected interests

In order to guarantee complete efficacy and acceptability, Mines Act empowers the
owners of mines to draft rules themselves for the safety and prevention of
accidents in mines and submit the draft rules to the inspector of mines. Such rules
become operative on being approved by the government. In the same manner,
Forward Contracts (Regulation) Act, 1952 gave power to a recognized association
to make draft rules and submit them to the government. The rules become effective
on approval by the Central Government with such modification as it may deem
fit.44

4.2. PUBLICATION

1. Antenatal Publicity (Prior Publicity of Proposed Rules and Regulations)

Prior publication of proposed rules and regulations is a procedural safeguard

against delegated legislation to enable the affected persons to know it beforehand
and make representations if they are so aggrieved. In the UK, the "Rules
Publication Act, 1893 requires the publication of proposed rules at least 40 days
before they were made and requires the rule-making authority to consider any
representations presented by any public body. The Statutory Instruments Act,
1943, repealed this provision without providing for ante- natal publicity. The
reasons being the development of advisory bodies which fulfilled the purpose in
other ways. Although the Statutory Instruments Act, 1946, has omitted to
incorporate such provisions yet the Committee Minister's Powers. 1932
emphasized the advantages of prior publication of the regulation.

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In the US the antenatal publicity proved most beneficial in practice because those
subjected to administrative regulations tend to be members of trade or business
organisations which perform the routine task of scanning the Federal Register and
alert their members about the proposed rulemaking. Section 4 of the Federal
Administrative Procedure Act, 1946 provides for the publication of proposed rules
in the Federal Register. The agency concerned must then afford an opportunity to
the interested persons to participate in administrative rule making through
submission of written data, views of arguments, with or without opportunity of
being heard orally. The Act also provides an escape clause where this procedure
can be dispensed with in cases of its impracticability, or it being unnecessary or
contrary to public interest.

In India, there is no separate law governing the prior publication of proposed rules
and regulations. However, the practice of prior publication has been adopted
wherever prior consultation has been deemed necessary.

The procedure of antenatal publicity in India, required by the enabling Act attracts
the application of Section 23 of the General Clauses Act, 1897 which requires that:

i) the rules be published in draft form in the Gazette;

ii) the objections and suggestions be invited by a specific date, mentioned therein;

iii) those objections and suggestions be considered by the rule making authority.45

However, it is noted that the procedure prescribed in the General Clauses Act,
1897, applies only to rules, regulations and by laws and the administrative rule
making appearing under any other name is not governed by it.46

It is noteworthy that in India the number of Statutes in which the condition of prior
publication is provided is not many. It has been stated that "not more than sixty
Central Statutes existing until 1960 lay down the condition of giving antecedent
publicity to the rules made thereunder. For example, in Section 15 of Central Tea
Board Act, 1949, Section 3(3) of Chartered Accountants Act, 1949, and Section 43
of Co-operative Societies Act, 1912, it was provided that the rules must first be

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published in draft form to give an opportunity to the people to have their saying
the rule making.

2. Postnatal Publication (Publication of Delegated Legislation)

In Great Britain, all the statutory instruments are published by a stationary officer
after having laid before the Parliament. They contain the date on which they come
into force Section 2(1) of the Statutory Instruments Act, 1946, requires that
immediately after the making of any statutory instrument it shall be sent to Queen's
Printers and numbered and unless otherwise provided by subsequent Acts or by
regulation made under the Act of 1946, copies of the instrument shall as soon as
possible be printed and sold by the Queen's Printers. Her Majesty's Stationary
Officer is required to publish from time to time a "statutory instruments Issue List'
showing the number and name of each new instrument issued within the period
and the date of the issue. An annual edition of statutory instruments is published. It
contains all rules, regulations and orders and other instruments made by the
sovereign, a Minister and a Government department.47

Publication of any law, rule, regulation, is extremely necessary to ensure full

justice to the public laws should be ascertainable and clear to the persons who are
to be affected by it. They should be amply punished, so that it may not come to the
public as a surprise. If it is not known to persons, it would not be possible for them
to regulate their conduct accordingly. It is therefore necessary that rules and
regulations made by administrative agencies are published.

In India, there is no general statutory provisions requiring or regulating publication

of delegated legislation. But there is a general practice to publish them in the
Gazette of India Publication of the delegated legislation in the Gazette has several
advantages e.g., (i) it gives authority to the rules and settles the issue as to whether
they have been duly made; (b) the individuals can have an easy access to the rules
for they can easily locate them.

The Government of India commenced in 1960 publication of various rules in a

codified form but its progress is quite slow and the volumes so far codified upto
date do not contain any annual supplement. In India, there is no general law
prescribing the mode of publication of rules; therefore, the practice of publication
differs from
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statute to statute, in some cases the statute lays down that the rules must be
published in the Official Gazette. For example, the Biological Diversity Act, 2002
provides that the Central Government may.by notification in the Official Gazette
make rules for carrying out the purposes of the Act (Section 62(1)]. But, in other
cases, the administrative authority is left free to choose its own mode of
publication. In such cases publication is necessary in any "recognizable' or
'customary' manner.

Publication of subordinate legislation attracts the maxim of hearing of natural

justice. Delegated legislation is not binding without its publication. The obligation
to publish a rule, regulation, order, bye-law or notification in the Official Gazette
can be fulfilled by publishing the same in the Electronic Gazette. The publication
is effective from the date of Gazette containing notification is made available to
the public.

Publication of delegated legislation has been treated by the Supreme Court as a

corollary of natural justice. In Harla vs. State Rajasthan, the Co held.48

If would be against the principle of natural justice to permit the subjects of a state
to be penalised by law of which they had no knowledge Natural justice requires
that before a law can become operative, it must be promulgated or published.
Thus, the Court has held that law cannot be enforced unless published.

In State of Kerala vs. P.J. Joseph, the Court was of the view that the
authorisation of the government of Cochin the Board of Revenue to 2 percent
commission does not have the force of law because the rules were never
published.49

In Narendra Kumar vs. Union of India, [AIR 1960 SC 430], the Non- Ferrous
Metals (Control) Order, 1958 prohibited acquisition of non-ferrous metals save
under a permit. The permit issuing authority was to follow "such principles as the
Central Government from time to time specify" for the grant of the permit. All
rules to be made were to be notified. The Central Government issued relevant
principles for the issue of permit to the concerned authority in a letter. This letter
was nowhere notified. The Supreme Court held that they were not legally
binding.50

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49
State of Kerala vs. P.J. Joseph [AIR 1958 SC 296]
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In Govindlal vs. The Agricultural Product Market Committee, [AIR 1976 SC
263], a notification was issued under the Gujarat Agricultural Product Market Act,
1964. The notification was required to be published in the Official Gazette as well
as in Gujarati newspaper. The question before the court was whether the additional
mode of publication provided over and above the publication in the Official
Gazette was mandatory or merely directory. The Court held that non-publication of
rules in the Gujarati newspaper amounted to absence of proper and adequate
publicity. Since the final notification was not published in Gujarat in a newspaper,
it was held to lack legal validity in the absence of such publication.

If the Enabling or Parent Act specifies the mode of publication of delegated

legislation the mode must be followed. A statutory provision requiring publication
of delegated legislation is mandatory. If the Parent or Enabling Act provides that
the rules must be published in Official Gazette they must be published in the
Official Gazette. If they are published in a mode different from the Official
Gazette, they will not be enforceable.

The Committee on Subordinate Legislation of the House of People has put great
emphasis on the need of giving wide publicity to the rules made by the Executive
under the capacity of a delegate. The Committee have favoured an uniform
procedure in giving publicity to rules and have made following recommendations:

1. While making each rule and order and for its publication the Central
Government should decide whether it is a concern or importance to the general
public;

2. Advance copies of all rules and orders which are of importance to the general
public should be sent to the State Government concerned for arranging wide
publicity in their State in the following manner:

a) by publishing the rules and orders to the State Gazettes; and

b) by publishing the translations of rules and orders in the recognized
languages of the States in the State Gazettes.

3. the publication of such rules and orders should preferably be simultaneous at the
Central and in the States.51

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 CHAPTER V

CONCLUSION & SUGGESTION

In conclusion, the control of delegated legislation is an essential tool for ensuring

the legitimacy and accountability of the legislative process. The complexities and
changing requirements of contemporary government are addressed in large part by
delegated legislation, which transfers legislative authority to executive agencies.
However, efficient regulatory systems must be in place to guard against possible
misuse or arbitrary use of authority, it is also presumed that delegation of power
should be conferred on trustworthy authorities, there is a presumption that these
authorities will not abuse their power.

Control over delegated legislation is essential for preserving the separation of

powers, upholding democratic principles, and defending individual rights.
Governments may make sure that delegated legislation is responsible, transparent,
and in keeping with the fundamentals of democratic governance by putting in
place strong systems for parliamentary oversight, judicial review, public
involvement, and clear rules.52

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 REFERENCE

BIBLOGRAPHY

1. Lecture on Administrative Law by C. K. Takwani,

2. Dr. J. J. R. Upadhyaya, Administrative Law, 10th Ed., Central Law Agency,

Allahabad, 2017.

WEBLOGRAPHY

1. https://blog.ipleaders.in/

2. https://www.scribd.com/

3. https://www.studocu.com/

4. https://www.legalserviceindia.com/

5. https://legalvidhiya.com/

6. https://www.lawcolumn.in/

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