Excessive delegation in Administration law

Contents
1.Introduction...........................................................................................................................3
1.1 Background and Significance:.......................................................................................3
1.2 Research Questions...................................................................................................3
1.3 Research Methodology..............................................................................................4
2. Delegated Legislation in India.............................................................................................4
2.1 Definition and Types of Delegated Legislation............................................................4
2.1.1 Definition of Delegated Legislation........................................................................4
2.1.2 Types of Delegated legislation....................................................................................5
2.2 Constitutionality of Delegated legislation.....................................................................7
2.2.1 Pre-Constitution Era:..............................................................................................7
2.2.2 Post-Constitution Era:.............................................................................................8
3.Excess of Delegated Legislation...........................................................................................9
3.1 Excessive Delegation: A Fundamental Analysis..........................................................9
3.2 Indicators of Excessive Delegation:............................................................................10
4. Implications and Causes of Excessive Delegation........................................................11
4.1 Implication of Excessive Delegation............................................................................11
4.2 Causes of Excessive Delegation...................................................................................12
5. Case Study...........................................................................................................................12
5.1 The Vice of Excessive Delegation in the NJAC Bill, 2014: Analyzing the Intricacies
..............................................................................................................................................12
5.2 Case Study 2: Right to Information (Amendment) Act, 2019..................................14
6.Balanced Delegation of Power............................................................................................15
6.1 Judicial Oversight of Delegated Legislation: Enforcing Constitutional Boundaries
..............................................................................................................................................15
6.2 Legislative Control.......................................................................................................16
6.2.1 Parliamentary Oversight of Delegated Legislation: Ensuring Accountability 16
6.2.2 Parliamentary Scrutiny.........................................................................................17
6.2.2Procedural Control over Delegated Legislation...................................................18
8. Conclusion and Suggestion................................................................................................19
References...............................................................................................................................20
1.Introduction

1.1 Background and Significance:

The concept of delegated legislation has been an integral part of India's legal and governance
landscape. Delegated legislation allows for efficient rulemaking, enabling timely responses to
dynamic societal challenges. However, the evolution of this mechanism has also raised
concerns about potential excesses, necessitating a thorough exploration of its implications.

India's legal system is an amalgamation of various sources of law, including statutes,

regulations, and rules. Delegated legislation, being a critical aspect of this system, empowers
administrative bodies to create laws and regulations under the authority of enabling acts
passed by the legislature. While it expedites lawmaking in complex and evolving domains, it
has also sparked debates about the boundaries of power and its alignment with democratic
principles.

The significance of this study lies in its endeavor to strike a balance between effective
governance and democratic values. By examining the excess of delegated legislation, the
research aims to uncover potential pitfalls that could erode transparency, accountability, and
public participation. It recognizes that while administrative flexibility is essential, there must
be a system of checks and balances to prevent undue concentration of power.

The exploration of excessive delegation's impact gains prominence in light of India's vibrant
democracy and its commitment to upholding the rule of law. As India continues to grapple
with multifaceted challenges ranging from economic growth and environmental sustainability
to civil liberties and social justice, the manner in which laws are formulated and executed
becomes pivotal. Understanding the risks of excessive delegation holds the key to reinforcing
the democratic fabric and ensuring that administrative efficiency does not come at the cost of
citizens' rights and democratic ideals.1

Furthermore, this study's insights can offer valuable guidance to policymakers, legal
practitioners, scholars, and civil society organizations in shaping the regulatory landscape. By
identifying best practices and suggesting measures to counteract potential excesses, the
research contributes to the discourse on enhancing the quality of governance while
safeguarding democratic principles in India's evolving legal ecosystem.

1.2 Research Questions

 What is delegated legislation?

 How does the phenomenon of excessive delegated legislation in India impact the balance
between administrative efficiency and democratic principles?
 What strategies can be devised to mitigate its potential implications?

1.3 Research Methodology

1
INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES [ISSN 2581-5369] Volume 3 | Issue 5
1.3.1 Research Design: The research will adopt a descriptive and analytical approach,
focusing on secondary data analysis. This methodology is well-suited to comprehensively
explore the concept of excessive delegated legislation within the Indian context, analyze
existing literature, and derive insights from established sources.

1.3.2 Data Collection:

 Literature Review: A comprehensive review of academic literature, research papers,

legal commentaries, government reports, and case law related to delegated legislation
and its excesses in India will form the core of data collection.
 Official Documents: Analysis of official documents such as parliamentary debates,
reports of legislative committees, and government notifications relevant to delegated
legislation and related issues.

1.3.3 Data Sources:

 Academic Databases: Utilizing academic databases such as JSTOR, HeinOnline, and

legal databases like Westlaw and Manupatra to access scholarly articles, journals, and
case law.
 Government Websites: Retrieving relevant government notifications, reports, and
documents from official websites of ministries and regulatory bodies.
 Legal Literature: Extracting insights from legal textbooks, journals, and
commentaries focusing on constitutional law, administrative law, and public policy

2. Delegated Legislation in India

2.1 Definition and Types of Delegated Legislation
2.1.1 Definition of Delegated Legislation

The term "delegation" finds its definition in Black's Law Dictionary as the action of
bestowing an individual with the power or conferring authority upon them to act on behalf of
the entity granting that power. This delegation can take the form of acting as an agent or
representative. In a broader context, "delegated legislation" refers to the exercise of
legislative authority by an entity that holds a lower rank in comparison to the primary
legislative body, or one that is in a position subordinate to the principal legislative authority. 2

This form of legislation, often termed secondary legislation, encompasses the creation of laws
and regulations by individuals or entities distinct from the primary legislative body, such as
Parliament.

Under the framework of delegated legislation, the Parliament, by means of an Act of

Parliament, possesses the capacity to authorize another person or organization to undertake
the formulation of regulations. An Act of Parliament not only sets the foundation for a
specific law but also provides a blueprint for the intentions behind that legislation. This
process of delegation, where the legislative powers are passed on to entities like the

2
Control Mechanism over Delegated Legislation Aparajita Kumari Teaching and Research Associate (Law),
Gujarat National Law University, Attalika Avenue, Knowledge Corridor, Koba, Gandhinagar (382426)
Executive or subordinates, enables them to contribute additional nuances to the existing Act
of Parliament.

This practice permits Parliament to delegate the legislative function through its primary
legislation, thereby enabling others to partake in the creation of laws and regulations.
However, it is crucial that any legislative actions undertaken by authorized parties remain
aligned with the objectives outlined within the original Act of Parliament.

According to the perspective put forth by Sir John Salmond, "Subordinate legislation"
signifies laws that originate from a source other than the supreme sovereign authority.

Justice P.B Mukherjee, in his contemplations on delegated legislation, viewed the term as an
umbrella phrase encompassing various interpretations. He saw it as a justification employed
by the Legislature, a shield for Executives, and a provocation for Constitutional Jurists. 3

In the interpretation given by M.P Jain, the term "delegated legislation" can be understood in
two distinct manners:

 The utilization of the authority by a subordinate agency, which holds a lower rank
compared to the Legislature, and this authority has been delegated by the Legislature.
 The subsidiary rules developed by a Subordinate Authority in the execution of the
power entrusted to it by the Legislature.

Delegated legislation is often referred to using a variety of terms, including Subordinate

Legislation, Ancillary Legislation, Administrative Legislation, and Quasi-Legislation.

2.1.2 Types of Delegated legislation

Types of Delegated Legislation:

Delegated legislation involves conferring authority to individuals or entities of lower rank to

create laws, granting them the power to enact rules and regulations. This authority can
manifest in various forms, each designed to address specific legislative requirements. The
following are the main types of delegated legislation:

1. Orders in Council: Orders in Council are a form of delegated legislation issued by the
Queen or the Privy Council. This mechanism enables the Parliament to establish laws without
undergoing the conventional parliamentary procedures. Presently, this form of legislation is
primarily employed to give legal effect to European directives. Orders issued under the
Queen's authority or the Crown are subject to judicial review. However, the reviewability of
orders issued by the Parliament may vary depending on whether they stay within the
boundaries defined by the corresponding Act of Parliament. Despite potential nuances,
Orders in Council bear resemblance to executive legislation. This similarity underscores the
proximity between these orders and executive legislative functions. Notably, the Privy
Council's gathering often constitutes the collaboration of select Privy Councillors, including

3
P.B. Mukharji, Delegated Legislation, I.L.I. 465, 465 (July, 1959); http://www.jstor.com/stable/43949623
ministers, the President, the Council, and the Clerk of the Privy Council. Consequently, these
orders reflect the issuance of executive powers by the Council.4

2. Rules of the Supreme Court and County Courts: Unlike the practice in some countries
where legislative authority is vested in specific individuals or bodies, England adopts a
distinct approach. In England, courts are endowed with substantial power to enact laws, a
responsibility particularly held by the Rules Committee of the Supreme Court and County
Courts. This arrangement entrusts the control of procedural law to the judicial branch,
leveraging the expertise of those most familiar with the intricacies of legal procedures.
Notably, the Rules Committee of County Courts governs matters pertaining to procedure and
costs, with the County Courts themselves directly engaged in these regulations. This type of
legislation is not subject to parliamentary oversight. The efficacy of these rules hinges on the
confirmation of the Lord Chancellor, in consultation with the Rules Committee of the
Supreme Court. Consequently, these rules become effective upon confirmation, ensuring
procedural adherence and consistency.

In essence, these types of delegated legislation underscore the diverse mechanisms through
which legislative authority is extended to entities of varying rank. Whether through Orders in
Council or the rules devised by the Supreme Court and County Courts, the principle of
delegated legislation offers a multifaceted approach to enhancing legal frameworks while
upholding the efficiency and expertise of the entities entrusted with this authority.

Delegated Legislation through By-Laws:

The concept of delegated legislation extends to by-laws, which can be established through
two distinct avenues. The first method involves the enactment of by-laws by autonomous
bodies, such as corporations. The second avenue entails the formulation of by-laws by local
authorities.5

By-Laws of Autonomous Bodies: Autonomous bodies possess the authority to establish by-
laws that pertain to matters impacting both themselves and the local populace, or individuals
residing within a specific geographic area. A notable example is their ability to create laws
concerning public utilities, such as light and water services. These bodies are customarily
granted the prerogative to establish regulations governing their operational framework. These
by-laws are subject to judicial review, ensuring their alignment with the parent statute and
preventing them from overstepping legal boundaries. Autonomous bodies possess the power
to craft rules for their internal governance. A prime illustration of such bodies is employer
associations. While the rules of these associations are often termed as voluntary, they bear
real significance, as they hold binding authority over members, similar to regulations
imposed by professional or industrial organizations.

By-Laws of Local Authorities: Parliament holds the authority to establish new local bodies
or modify existing ones. These local bodies are vested with the power to enact by-laws for
specific objectives. These by-laws enable local authorities to exercise discretionary powers to
promote public health, safety, efficient governance, and adherence to good practices. The
violation of these by-laws often results in the imposition of penalties.
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Prangya Priyadarsini Rou
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ibid
In essence, delegated legislation through by-laws encompasses two distinct avenues: one
involving autonomous bodies and the other concerning local authorities. By crafting rules
that govern their functioning and impact the larger community, these entities contribute to the
broader legislative landscape while adhering to the stipulations of the law and ensuring their
by-laws' judicial review.6

2.2 Constitutionality of Delegated legislation

2.2.1 Pre-Constitution Era:

During the pre-constitution era, the concept of delegated legislation gained prominence
through a series of decisions made by both the Privy Council and the Supreme Court. The
Privy Council, which served as the highest court of appeal for Indian cases, played a
significant role in shaping the understanding of delegated legislation before India gained its
independence.

One landmark case that marked the Privy Council's involvement in the issue of delegated
legislation was "Queen v. Burah." This case centered around the constitutionality of
delegated legislation and revolved around an act that granted substantial powers to the
Lieutenant Governor. The key contention was the authority vested in the Lieutenant
Governor to enact the law, determine its applicability, and extend its use. The purpose of the
act was to exclude Garo Hills from the jurisdiction of civil and criminal courts while also
extending its provisions to Khasi, Jaintia, and Naga Hills in Garo Hills.

The central question before the Privy Council was whether the empowerment of the
Lieutenant Governor to expand the application of the law amounted to a delegation of power.
The Privy Council held that the Indian legislature was not a mere agent or delegate compared
to the Calcutta High Court. Rather, it possessed comprehensive legislative powers, akin to
those of the parliament itself. The judgment highlighted that the Indian legislature had
exercised its authority regarding the place, individual, law, powers, and that the Governor
was obligated to enforce it once specific conditions were fulfilled. This approach, known as
"conditional legislation," was upheld by the Privy Council.

As India was on the brink of gaining independence, the question of the acceptable boundaries
of legislative power assumed greater significance. Just before independence, Chief Justice
Kania, in the case of "Jatindra Nath," observed that delegated legislation in India could not
surpass conditional legislation. He emphasized that the Provincial Government could not be
allowed to extend the duration of the Bihar Maintenance of Public Order Act 1948. The court
deemed this power as non-delegable.

However, this stance led to ambiguity regarding the extent of delegated legislation. The
central dilemma was whether the legislature of Independent India should adhere strictly to the
principles outlined in previous cases or if it should possess greater latitude in determining the
scope of delegation. This decision was left open, enabling the courts to adopt a model akin to
the United States, where the scope of delegation was strictly defined, or the approach of the
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International Journal of Research in Engineering and Science (IJRES)ISSN (Online): 2320-9364, ISSN (Print):
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Prangya Priyadarsini Rou
United Kingdom, where delegation's extent was a matter of policy and not mandatory for
judicial intervention.

It's noteworthy that the Indian Constitution remained silent on the matter of legislative
delegation, leaving the courts to grapple with the question of whether such delegation was
permissible. Consequently, these issues couldn't be conclusively resolved based solely on the
constitutional text.

2.2.2 Post-Constitution Era:

In Re Delhi Laws Act Case 1950: To address uncertainties surrounding the validity of
numerous laws involving delegated legislative power, the President of India invoked Article
143 of the Constitution, seeking the Supreme Court's advisory jurisdiction. The Court was
presented with three questions for consideration and reporting:

1. Was section 7 of the Delhi Laws Act, 1912, which empowered the provincial
Government to extend, restrict, or modify laws within Delhi, ultra vires? If so, to what
extent?
2. Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions ultra
vires? To what extent was it inconsistent with the Legislature's authority that enacted
it?
3. Was Section 2 of the Part C States (Laws) Act, 1950, or any of its provisions ultra
vires? To what extent was it beyond the scope of Parliament's power?

The Court, comprising seven judges, delivered seven diverse opinions in this case. The case's
significance lies in its recognition of both the permissibility of delegated legislation and the
limitations on the extent of such delegation. The central issue pertained to the degree to
which the Indian legislature could delegate its legislative powers. However, the Court arrived
at multiple conclusions, presenting different perspectives on this matter. Nonetheless, there
were two points of consensus: firstly, the demands of modern governance necessitate
delegation due to the multifaceted issues in India, and secondly, the legislature's powers are
not absolute, given that they derive from the Constitution.

The divergence among the judges revolved around the permissible boundaries for legislative
delegation. One viewpoint posited that delegation should not involve relinquishing control
over the delegate. The legislature must maintain ultimate oversight over the delegate and the
authority to withdraw delegation if needed. Another perspective argued that the legislature
cannot delegate its essential functions, which encompass policy formulation. Instead, the
legislature should establish policy standards in the delegating Act, empowering the delegate
to execute the policy.

The Court, by a majority decision, held that the legislature should not delegate its essential
legislative functions, which include policy formulation and implementation. The Court
asserted that the Constitution places faith in the legislature, entrusting it with legislative
power. It is the prerogative of the legislature to empower the delegate to formulate rules for
executing legislative policies.

Different Opinions from the Bench: Attorney General M. C. Setalvad argued that
Parliament could delegate powers since legislative power inherently carried the authority to
delegate. However, Chief Justice Kania, Justice Mahajan, and Justice Mukherjea disagreed,
asserting that the Constitution did not inherently justify delegation. Instead, they maintained
that the legislature could conditionally legislate. In contrast, Justice Sastri and Justice Das
aligned with the Attorney General, contending that power to make law implied the power to
delegate.

Regarding the delegation of power to modify and alter laws, the majority affirmed that
executive authorities could be authorized to modify laws but not in a substantial sense.
However, Chief Justice Kania and Justice Mahajan differed, stating that only the legislature
held the authority to bring substantive changes to the law.

On the matter of delegating the power to repeal a law, the majority found that such delegation
of legislative power was ultra vires, citing the maxim "unis est exclusion alterius." Essential
functions could not be delegated. The minority opinion leaned on the theory of legislative
omnipotence, prevalent in British, Australian, Canadian, and Indian constitutional systems,
which allowed for delegation of legislative functions, subject to the condition of non-
abdication.

3.Excess of Delegated Legislation

3.1 Excessive Delegation: A Fundamental Analysis

The concept of excessive delegation inherently signifies the extension or transfer of

functional and authoritative responsibilities from one entity to another. In political terms, this
phenomenon transpires as the legislature enacts laws while the executive executes them.
Excessive delegation, also referred to as the delegation of legislature, involves entrusting the
law-making function of the legislature to the executive, which subsequently delegates the
same authority to subordinate entities.

The doctrine of excessive delegation in India offers a vast realm for debate and deliberation
due to its extensive application and multifaceted implications. It's imperative to comprehend
the nature of the Indian polity, a fusion of the world's largest democracy and the second-
largest human population, united by historic cultural ties. The nation's roots trace back to one
of the world's oldest civilizations, yet it stands as a youthful state. India's transformation from
executive supremacy to legislative supremacy post-independence is noteworthy.

The architects of India's constitution chose a distinctive pathway: federalism with a unitary
bias. Here, the Union forms the states and grants them substantial autonomy. The foundation
of India as a unified entity predates its reorganization into states, forming a strong Union.
This arrangement is often termed quasi-federalism, and within this structure, the Doctrine of
Excessive Delegation assumes paramount importance, warranting exploration through the
lens of federalism.

Four Pillars of India's Democracy: India's democratic foundation rests robustly upon four
pillars: the Legislature, the Executive, the Judiciary, and the Media. Although distinct in their
functions, these pillars share a foundation, an apex, and a common purpose of safeguarding
the nation.

Role of Each Pillar:

 1. Legislature: The legislature undertakes the formulation of laws, embodying the
collective will of the nation.
2. Executive: The executive translates legislative intent into practical implementation,
ensuring the enforcement of laws.
3. Judiciary: The judiciary, acting as a guardian of the constitution, scrutinizes the
constitutionality of actions and settles disputes.
4. Media: The media acts as a watchdog, examining transparency, offering timely
insights, and critiquing the state's functioning.

In essence, the doctrine of excessive delegation signifies the transfer of legislative authority
to executive bodies, demanding a balance between the spheres of power. The Indian polity's
unique federal structure, which harmonizes federalism with a unitary bias, underscores the
significance of this doctrine. As India's democracy stands on the foundation of these four
pillars, their respective functions collectively steer the nation toward progress, preserving its
sanctity and unity.

3.2 Indicators of Excessive Delegation:

1. Broad and Unspecific Language: When the enabling statute employs vague or expansive
terminology while conferring powers, it opens the door for interpretations spanning a wide
spectrum. This lack of clarity can facilitate an overabundant exercise of authority by the
delegated entity. By capitalizing on the ambiguity, the entity might assert control over
matters not explicitly envisaged by the legislature, leading to an unwarranted expansion of
power.

2. Absence of Guidelines: In instances where the statute neglects to establish precise

guidelines or fundamental principles to govern the exercise of delegated powers, it endows
the delegated entity with considerable discretion in its interpretation. The absence of well-
defined parameters permits unchecked latitude, potentially enabling the entity to venture
beyond the original intended scope of authority. This void in guidance can precipitate an
accumulation of unchecked power.

3. Unlimited Authority: When the statute bestows all-encompassing or excessively

expansive powers upon the delegated entity devoid of reasonable constraints, it can foster
unbridled decision-making. Such a scenario might foster unchecked discretion and
concentration of power, contravening the fundamental principle of the separation of powers.
The absence of limitations may lead to arbitrary exercises of authority.

4. Contravention of Parent Statute: The formulation of regulations under delegated powers

that are incongruous with the fundamental objectives or intent of the parent statute is a telltale
sign of excessive delegation. This indicates that the delegated entity may have exceeded its
designated authority, misinterpreting or diverging from the intended purpose of the
legislation. This dissonance reflects a potential distortion of the legislature's original intent.

5. Deviating from Policy: When the delegated entity crafts regulations that substantially
deviate from the established legislative policy, it suggests an excessive level of autonomy in
altering or expanding policy decisions. This divergence signifies that the entity has surpassed
its initial mandate and may be redefining policies without requisite oversight. Such autonomy
can lead to unforeseen policy shifts that compromise the legislature's control.

4. Implications and Causes of Excessive Delegation

4.1 Implication of Excessive Delegation

1. Lack of Accountability: Excessive delegation can significantly erode the cornerstone of

democratic accountability. By vesting substantial decision-making authority in administrative
agencies, the direct oversight of policy choices is stripped away from elected representatives.
In this scenario, critical policy decisions may be made without sufficient checks and
balances. The absence of direct accountability to the electorate engenders a lack of
transparency, hindering citizens' ability to hold decision-makers responsible for their actions.
This deviation from democratic norms undermines the principle that those in power must
answer to the people they serve.

2. Rule of Law Concerns: Delegation lacking clear legislative guidance raises profound
concerns regarding the rule of law. When decision-making authority is transferred without
well-defined parameters or specific directives, it paves the way for inconsistent and arbitrary
decision-making. The lack of explicit legislative provisions prompts administrative agencies
to interpret and implement the law in diverse ways, leading to confusion and unpredictability.
This erosion of clarity undermines fundamental principles such as legality, fairness, and equal
treatment under the law. The ambiguity introduced by excessive delegation jeopardizes the
stability of legal systems and undermines public trust in the justice system.

3. Democratic Deficit: Excessive delegation can potentially contribute to a democratic

deficit, curtailing citizen engagement and participation in the decision-making process. When
pivotal policy choices are relegated to administrative agencies rather than elected
representatives, citizens may perceive themselves as excluded from a process that should
reflect their interests. This estrangement fosters a sense of detachment between the governed
and governing bodies, potentially chipping away at the bedrock of democratic legitimacy. A
robust democratic framework necessitates active citizen participation, ensuring that the
voices of the populace resonate in the corridors of power. The sidelining of citizens due to
excessive delegation threatens the very essence of democratic governance.

In summary, the ramifications of excessive delegation reach far beyond administrative

processes. They strike at the heart of democratic principles, impacting accountability, the rule
of law, and the participation of citizens. Recognizing and addressing these consequences is
crucial to preserving the core values of democratic governance and fostering a system where
decision-making remains grounded in transparency, legality, and the active involvement of
the people.
4.2 Causes of Excessive Delegation

Complexity of Legal and Policy Issues: The intricate nature of legal and policy matters
often serves as a catalyst for excessive delegated legislation in India. Many legislative topics
involve complex technicalities, nuances, and evolving situations that demand specialized
knowledge. The legislature, while framing primary laws, might find it challenging to
incorporate every intricate detail. Consequently, to ensure the efficacy of implementation and
to address emerging complexities, the authority delegated to executive bodies is often
broader. This expansive authority empowers these bodies to adapt to unforeseen challenges
and tailor regulations accordingly. However, this well-intentioned approach can inadvertently
lead to excessive delegation, especially if the boundaries of authority are not clearly defined.

Institutional Constraints and Capacity: Institutional constraints and capacity limitations

within the government can contribute to excessive delegated legislation. Legislative bodies
might be overburdened, making it impractical to craft comprehensive laws for every issue. In
such circumstances, authorities delegate powers to specialized entities with the expertise to
handle particular matters. While this delegation may seem pragmatic, it can result in an
extensive transfer of authority, often without adequate oversight. Additionally, the dearth of
technical and administrative capacity can compel the executive bodies to exercise broader
discretion, contributing to the accumulation of delegated authority.

Influence of Interest Groups: The influence of interest groups and stakeholders can impact
the extent of delegated legislation in India. Interest groups with specific agendas often exert
pressure to tailor regulations in their favor. In response, legislators might delegate
considerable authority to executive bodies to navigate the intricate demands of these interest
groups. This responsiveness, while ensuring balanced representation, can sometimes lead to
over-delegation. The delegated authority might extend beyond what is necessary, driven by
the objective of appeasing influential stakeholders.

Political Expediency and Administrative Convenience: Political expedience and

administrative convenience can also be causes of excessive delegated legislation. In India's
dynamic political landscape, expediency might encourage legislative bodies to delegate
authority to executive entities to swiftly address emerging issues. While expedient, this can
inadvertently result in broad discretionary powers that extend beyond the original legislative
intent. Moreover, administrative convenience, aimed at streamlining the implementation
process, can lead to the empowerment of executive bodies to adjust regulations based on
practical needs. However, if unchecked, this can lead to the misuse of delegated authority.

In conclusion, the causes of excessive delegated legislation in India are often rooted in the
complexities of legal and policy matters, institutional limitations, interest group dynamics,
and the pursuit of political expedience and administrative efficiency. While these factors
might be well-intentioned responses to genuine challenges, they can lead to an over-extension
of delegated authority, necessitating a careful balance between effective governance and
maintaining the integrity of the legislative process.

5. Case Study

5.1 The Vice of Excessive Delegation in the NJAC Bill, 2014: Analyzing the Intricacies
The discourse around judicial appointment reforms in India has predominantly revolved
around the question of "who should select the judges?" Yet, two equally significant queries—
"how should judges be selected?" and "who should be selected as a judge?"—have been
somewhat overshadowed. The hurriedly passed National Judicial Appointments Commission
(NJAC) Bill primarily addresses the first question, leaving the other two in the hands of the
Central Government and the Commission. While the judiciary-executive power struggle
underscores the Separation of Powers debate, the Bill also triggers vital questions concerning
the separation of legislative and executive functions, manifesting in the issue of delegated
legislative powers—a fundamental aspect of the executive-legislative divide. In this analysis,
the constitutional sustainability of such expansive delegation of powers in the NJAC Bill will
be examined.

Doctrine of Excessive Delegation: The doctrine of excessive delegation asserts that if the
legislature delegates its legislative function excessively, the delegation will be deemed
unconstitutional. This doctrine serves two key purposes: upholding democratic accountability
in the laws governing the people and providing courts with a clear standard to determine if a
rule or regulation is ultra vires the parent statute.

However, the challenge lies in defining the boundaries of "permissible limits" for delegation.
In the case of Re: Delhi Laws Act7 [AIR 1951 SC 332], Chief Justice Kania emphasized that
while the legislature can confer rule-making powers for executing an enactment, it must
establish the "policy and principles providing the rule of conduct." The latitude for non-
legislative authorities to make rules should be confined to emergencies. Similarly, in Ajoy
Kumar Banerjee v. Union of India8 [(1984) 3 SCC 127], the court deemed "essential
legislative function" as the declaration of legislative policy and laying down standards. In
Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 5169],
delegation was limited to "mode of implementation." It becomes evident that the function of
subordinate legislation is to render policy functional rather than dictate policy choices.

Suitability Criteria Determination is not Merely "Procedural or Administrative":

Within the NJAC Bill, two types of powers are delegated to the Commission. The first type
involves determining suitability criteria for judge appointments, while the second type deals
with procedural and administrative matters. While the latter can be tolerated due to its
procedural and administrative nature, the former poses a challenge.

The Bill's "Memorandum Regarding Delegated Legislation" asserts that the delegation is
solely "procedural or administrative." However, the selection criteria not only mirror the
judiciary's expected duties but also embody our vision of the higher judiciary. As such, this
delegation entails policy choices aligned with our judiciary's vision, making it beyond mere
procedure or administration. The memorandum's scope does not cover the depth of policy
choices present in determining suitability criteria.

Lack of Policy Guidance for Suitability Criteria: The NJAC Bill's delegation of legislative
functions is extensive. While broad delegation is acceptable if the legislation contains
adequate principles to guide the Commission, the Bill lacks such guidance. The Statements of
Objects and Reasons focus on shifting selection power to the Commission, offering no
7
[AIR 1951 SC 332
8
Ajoy Kumar Banerjee v. Union of India [(1984) 3 SCC 127]

9
Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 516
guiding policy for selecting criteria. The phrases "transparency, accountability, and
objectivity" and "ability and merit" offer vague guidance. Interpreting these phrases as
sufficient policy guidelines for selection criteria can lead to judicial quests for legislative
policy in statute crevices, as cautioned by Justice Mathew in Gwalior Rayon Co. v. Assistant
Commissioner of Sales Tax.

Unnecessary Delegation for the Subject Matter: Courts have upheld skeletal legislation in
rare cases, particularly where emergency situations necessitated broad subordinate authority.
Unlike such instances, the NJAC Bill concerns judicial appointments—void of emergency.
The Bill's delegation does not align with the emergency justifications seen in cases involving
supply of essential commodities or import/export control.

Insufficient Procedural Safeguards in the Laying Procedure: The "laying" procedure,

where delegated powers are presented before the legislature, acts as a check on such powers.
Of the three types—simple laying, negative resolution, and affirmative laying—the third type
(affirmative) is mandatory for robust oversight. The NJAC Bill's laying procedure falls under
the second type, which is subject to negative resolution. Considering the significance of
judicial appointments, the Bill should adopt the affirmative laying procedure to ensure a
comprehensive check.

In conclusion, the NJAC Bill's vice of excessive delegation raises constitutional concerns.
The distinction between policy-making and procedural/administrative matters should be
maintained, and policy guidelines for delegation must be clear. Moreover, delegation should
align with the necessity and context of the subject matter. Procedural safeguards, like the
laying procedure, should be stringent to uphold democratic accountability. The haste in
passing the Bill has led to a missed opportunity to create a definitive system, instead resulting
in ambiguity that can prove detrimental in the long run.10

5.2 Case Study 2: Right to Information (Amendment) Act, 2019

The constitutional validity of the Right to Information (Amendment) Act is frequently

brought into question based on the doctrine of excessive delegation. This legislative
modification has been critiqued for endowing the central executive with an excessive degree
of authority to formulate rules that pertain to the states. As a result, it is argued that the
Amendment Act amounts to a disproportionate delegation of legislative power by the
Parliament, thereby conflicting with the principles of the rule of law and constitutional
morality. Furthermore, the federal nature of the original Right to Information (RTI) Act is
alleged to be eroded by this Amendment Act. The act of excessively delegating such a pivotal
legislative responsibility to the central government is viewed as ethically problematic.

A plea was submitted before the Supreme Court that sharply criticized this amendment. It
contended that the essence of the RTI Act, which seeks to enhance transparency in public
administration and empower the common citizenry, is compromised when the government
alone holds the authority to determine the salaries and tenures of information commissioners.

10
Indian J.L. & Legal Rsch. 1 (2021-2022)
Doctrine of Excessive Delegation in India - Analysis on RTI (Amendment) Act, 2019 and NJAC Act, 2014
A comparable case underscores this concern. The Supreme Court invalidated the provisions
of the Tamil Nadu Private Educational Institutions (Regulation) Act 1966 due to excessive
delegation and violation of Article 14 of the Constitution. The court's rationale was that the
Act lacked adequate guidelines for the executive to exercise its delegated legislative
authority.

Upon careful examination of the aspects, it becomes evident that the RTI Amendment Act,
2019, indeed confers significant legislative powers upon the central executive. This, in turn,
raises concerns regarding the potential violation of Article 14 and 19(1)(a) of the
Constitution. The power vested in the central executive is deemed unjustified, arbitrary, and
tantamount to excessive delegation. This kind of excessive delegation not only curtails the
powers of state legislatures but also contradicts the principles of federalism. Consequently,
the Right to Information (Amendment) Act, 2019, also known as Act 24 of 2019, may be
subject to being declared as illegal in accordance with the arguments presented.11

6.Balanced Delegation of Power

6.1 Judicial Oversight of Delegated Legislation: Enforcing Constitutional Boundaries

In the Indian context, the question of the validity of delegated legislation can be brought
before the courts of law, where it might be challenged on the grounds of being
unconstitutional, excessive, or arbitrary. The judiciary exercises control over delegated
legislation based on two key aspects: substantial ultra vires and procedural ultra vires. In
essence, the court evaluates whether the delegated legislation is consistent with the
constitution and whether it adheres to the scope defined by the parent act that grants the
power to legislate. Both the Supreme Court and the High Courts in India actively engage in
this role of overseeing and regulating delegated legislation.

The judicial control over delegated legislation in India manifests through two primary levels:

1. Challenging Unconstitutionality: No piece of delegated legislation can survive if it

infringes upon the provisions safeguarding Fundamental Rights. If an act or regulation
violates fundamental rights, any rules, regulations, or by-laws derived from it cannot
endure. The judicial control of delegated legislation in India, much like in the United
States, is rooted in the doctrine of ultra vires.
2. Improper Exercise of Statutory Power: Judicial control also extends to ensuring
that the executive does not overstep its bounds in exercising legislative power. Courts
review delegated legislation for consistency with enabling statutes and adherence to
their provisions.

The United States judiciary employs two main approaches to justify the delegation of
legislative power to the executive:

11
Indian Journal of Law and Legal Research Volume III Issue I | ISSN: 2582-8878
  Filling up the Details Approach: This approach mandates that the Congress
establishes a policy framework, while the executive is responsible for furnishing
additional details and executing the legislative intent as per the Congress's guidelines.
 Intelligible Principle Approach: Under this approach, the court assesses whether the
delegated legislation adheres to the enabling statutes and operates within their
specified parameters.

Several cases illustrate the practical application of judicial control over executive actions:

 Kruse v. Johnson: The court asserted that by-laws must satisfy criteria like
impartiality, fairness, absence of bad faith, and not unduly infringing on people's
rights to be considered reasonable and valid.
 Delhi Law Act Case: This instance revolved around a Central Government's power,
conferred through an act, to repeal pre-existing laws, which was ruled ultra vires.
 Chintaman Rao's Case: The prohibition of making bidis during the agricultural
season by the Deputy Commissioner was deemed violative of Article 19(1)(g) of the
Indian Constitution.
 Chandran v. R: In this case, the court emphasized that if the power to formulate by-
laws is vested in the hands of the Legislature, it must align with the limits defined by
the Legislature. Any excess could lead to the striking down of such by-laws.

In summary, the Indian judiciary exercises vigilant oversight over delegated legislation,
ensuring its alignment with constitutional principles and the boundaries prescribed by
enabling statutes. This judicial role is crucial for upholding the rule of law and safeguarding
citizens' rights and interests.12

6.2 Legislative Control

6.2.1 Parliamentary Oversight of Delegated Legislation: Ensuring Accountability

In a parliamentary democracy, the primary function of legislation rests with the legislature. If,
for various reasons, the legislature decides to delegate its legislative power to the executive, it
is not only the prerogative but also the duty of the legislature, as the principal, to oversee how
its agent, the Executive, carries out the entrusted agency. As the source of legislative power,
the legislature holds the responsibility to ensure the proper exercise of delegated legislative
authority, supervise its execution, and prevent any misuse or abuse by the administration.

India has developed a comprehensive system of legislative supervision over delegated

legislation, encompassing two key components:

1. Laying of Delegated Legislation: The first step in the chain of parliamentary control
over delegated legislation occurs during the delegation process by Parliament. As per
the rules of procedure in each House of Parliament, any bill proposing the delegation
of legislative power must be accompanied by a memorandum explaining the scope
12
prsindia.org, Parliamentary Scrutiny of Executive Rule Making Background Note for the Conference on
Effective Legislatures, November 15,2012, available at
http://www.prsindia.org/administrator/uploads/general/ 1370586704_Parliamentary%20Scrutiny%20of
%20Exe xecutive%20Rule%20Making.pd
 and nature of the proposed delegation. This memorandum draws attention to whether
the delegation is of an exceptional or normal nature, allowing Members of Parliament
to focus on the provisions related to the delegation. Additionally, bills with provisions
for delegation can be referred by the Speaker to a committee tasked with examining
the extent of the delegated powers.
2. Laying Procedure: The second link in the chain of parliamentary control is the
"laying procedure." This procedure serves the purpose of providing information to the
Parliament regarding the content of delegated legislation made by the government
under various statutes. It is essential for parliamentary control to keep Parliament
informed about rules created by executive authorities through delegated legislation.
This procedure comes in three main variants:
o Simple Laying: In Commonwealth countries, including India, the procedure
of "Laying on the Table" of the Legislature is commonly followed. It serves
two primary purposes: informing the legislature about the rules made by
executive authorities through delegated legislation and giving legislators the
opportunity to question or challenge these rules.
o Laying with Immediate Effect but Subject to Annulment: In this variant,
rules are laid in draft and can be annulled through a resolution of the House.
This process is known as negative laying. The oversight here is retrospective,
involving the potential annulment of rules after their implementation. It
provides for disallowance rather than approval.
o Laying in Draft Subject to Affirmative Resolution: Under this approach,
the draft rules are presented to the houses for affirmation through a resolution.
Rules become effective only upon the approval of both houses. An Act of
Parliament usually mandates that rules or regulations made under the Act must
be laid before both houses, allowing for parliamentary scrutiny and
opportunities for criticism.

By implementing these procedures, the Parliament ensures that it retains its ability to monitor
and control the exercise of delegated legislative authority. This mechanism is essential for
upholding accountability, transparency, and the proper functioning of delegated legislation
within the broader democratic framework.

6.2.2 Parliamentary Scrutiny

While the laying procedure serves as an initial step in informing the legislature about
delegated legislation, it often falls short in providing effective parliamentary supervision. The
negative resolution mechanism, as it exists in India and the UK, places significant reliance on
the vigilance of individual Members of Parliament, which might not always guarantee
thorough oversight. To bridge this gap, both India and the UK have established specialized
committees within their parliamentary systems to scrutinize delegated legislation more
comprehensively.

Recognizing the limitations of the laying procedure, the establishment of Parliamentary

Scrutiny Committees has emerged as a crucial element of indirect control over delegated
legislation. These committees are tasked with the thorough examination of the rules and
regulations created by the executive through delegated authority. Their primary aim is to
ensure that the executive's rule-making aligns with the original legislative intent and
fundamental principles established by the Parliament.
In India, the establishment of such committees was proposed as early as 1950, when the Law
Minister suggested the creation of a committee modeled after the UK's Select Committee on
Statutory Instruments, 1944. This proposed committee's role would involve examining
delegated legislation, identifying instances where administrative rule-making deviates from
the Parliament's intention, or departs from fundamental principles.

The introduction of the Rajya Sabha Committee marked a significant milestone in enhancing
the effectiveness of parliamentary control over delegated legislation in India. This committee,
along with its counterpart in the Lok Sabha, undertakes the vital task of scrutinizing a
considerable number of rules and regulations annually. By dividing the workload between
these two committees, a more comprehensive review of delegated legislation becomes
possible, surpassing what could be achieved by a single committee alone.

These Parliamentary Scrutiny Committees play a pivotal role in addressing the limitations of
the laying procedure and individual vigilance. They act as specialized bodies that
systematically analyze the finer details of delegated legislation, ensuring that it remains
within the intended scope of the enabling statute and adheres to fundamental principles. By
doing so, they strengthen the overall accountability and transparency of the legislative
process, fostering a more robust framework for democratic governance.

6.2.2Procedural Control over Delegated Legislation

Procedural Safeguards for Effective Control over Delegated Legislation

To ensure effective control and oversight over the exercise of legislative power by
administrative authorities, certain procedural safeguards have been established. These
mechanisms help maintain vigilance and transparency in the process of creating delegated
legislation. Several methods of procedural control are employed to achieve these goals:

1. Prior Consultation of Affected Interests: In countries like the United States, a practice of
prior consultation with interests likely to be affected by proposed delegated legislation is
common. For instance, the Administrative Procedure Act mandates rule-making authorities to
consult these affected interests and provide them an opportunity to submit their opinions
within a stipulated time. This approach aims to gather viewpoints, minimize objections, and
prevent improper or arbitrary use of rule-making power by the executive. Such consultations
often include advisory bodies formulated for specific purposes. In India, while consultation is
not a general requirement, certain statutes insert conditions like "subject to the conditions of
previous publication" in the parent Act, ensuring that affected parties have a say.

2. Prior Publicity of Proposed Rules and Regulations: The practice of prior publication
has been adopted in India and other countries where consultation is deemed necessary. This
involves making draft rules public for the affected interests to review and comment on. In
India, the General Clauses Act, 1897, prescribes that draft rules should be published in a
manner the authority deems sufficient. The authority then considers any objections received
before finalizing the rules. A similar practice is seen in the US and the UK, where public
notice is given for proposed rules, and the relevant departments consider representations or
suggestions from interested parties.
3. Publication of Legislation and Delegated Legislation: The concept of publication
revolves around two important principles. First, it ensures that parties affected by legislation
have the opportunity to be heard, aligning with the principle of natural justice. Second, it
reflects the principle that ignorance of the law is not an excuse. Publication serves to make
the law known to the public, allowing them to acquaint themselves with its provisions. This
practice ensures that individuals are aware of the law's existence and can't claim ignorance as
an excuse. Courts have consistently held that publication through recognized channels, like
the Official Gazette, is essential to notify the public about new laws. This ensures access to
the law and promotes transparency in governance.

These procedural safeguards play a critical role in maintaining transparency, accountability,

and fairness in the process of delegated legislation. By involving affected interests, providing
prior publicity, and ensuring proper publication, these mechanisms prevent the misuse of
legislative power by administrative authorities. They uphold the principles of natural justice
and ensure that individuals have access to the laws that govern them.

8. Conclusion and Suggestion

The distinction between delegated legislation and excessive delegation is a delicate and
significant one. While the delegation of legislative functions is often deemed necessary to
effectively address intricate details and manage the growing complexity of administrative
tasks, excessive delegation can result in unintended consequences, shifting the intended
outcomes in an undesirable direction.

The doctrine of excessive delegation stands as a vital safeguard to ensure the protection of
citizens' rights and prevent authorities from misusing their granted power to make
inappropriate decisions. This doctrine also plays a role in upholding the fundamental
principle of the separation of powers, as exemplified in the landmark case of Supreme Court
Advocates on Record Association vs Union of India. Consequently, its application must be
approached with care when interpreting various legislative provisions, particularly when the
need arises.

However, it's important to note that the doctrine of excessive delegation cannot be seen as a
cure-all for all deficiencies in public administration. While it serves as a mechanism to curb
potential abuses of power, it cannot single-handedly address all challenges within the
administrative process.

In constructing legislations and formulating their provisions, meticulous consideration should

be given to the well-being of the broader public, aligning with the fundamental concept that
the government is established "of the people, for the people, and by the people." This implies
that legislative procedures must be transparent, allowing for accountability on the part of the
authorities responsible for executing delegated powers.

In essence, finding the right balance between delegated legislation and the avoidance of
excessive delegation requires a judicious approach. It necessitates legislators and
administrative bodies to be prudent in crafting legislation that effectively delegates power
where needed, while simultaneously safeguarding against potential misuse and ensuring the
utmost transparency, accountability, and alignment with the greater good of the society they
serve.

References
1. BOOKS
 C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW 88-92 (EBC 2021).
 M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 63-68 (Lexis Nexis
2017)
2. JOURNALS:
 P. B. Mukharji, Delegated legislation, 1 JOURNAL OF THE INDIAN LAW
INSTITUTE 465, 465–92 (1959).
 Sanjana Nayak, Administrative Law and Doctrine of Excessive Delegation, 2
INT’L
 V.N. Shukla, Judicial Control Of Delegated Legislation in India, 1 JOURNAL OF
THE INDIAN LAW INSTITUTE 357, 357-374 (1959)
 Mahak Dua, DOCTRINE OF EXCESSIVE DELEGATION IN INDIA ANALYSIS ON
RTI (AMENDMENT) ACT, 2019 AND NJAC ACT, 2014, Indian Journal of Law
and Legal Research,2020
 Ashish Srivastava, The Notion of Delegated Legislation in India- A Critical
Analysis, Scholars International Journal of Law, Crime and Justice, 2019