Vivekananda Institute of Professional

Studies GGSIPU

Research Paper on:

Legislative, Judicial and other Control Mechanisms over
Delegated Legislation in India

Submitted To: Submitted By:

Ms. Ritika Juneja Anoushka Srivastava
Faculty 06017703521
VSLLS, VIPS, GGSIPU IV – L, 2021 - 26
VSLLS, VIPS,
GGSIPU
Table of Contents

S No. Topic Page No.

1 Introduction 1
2 Constitutionality of Delegated Legislation 2
3 Control Mechanism over Delegated Legislation 4
4 Legislative Control 4
5 Procedural Control 7
6 Judicial Control 8
7 Conclusion 10
Introduction

Delegated legislation is a law enacted by the executive authority in accordance with the
powers delegated to them by the primary decision-making body in order to execute,
implement, and manage the primary authority's objectives. It is a law enacted by any person
or authority acting under the control of parliament. In administrative law, it is often referred
to as subordinate legislation or secondary legislation. According to M.P. Jain, “the term is
used in two different senses- to exercise the legislative power by subordinate agents, or
the subsidiary rules themselves which are made by the subordinate authority in pursuance of
the powers conferred on it by the legislature”. Delegated legislation can be in form of rules,
regulations, orders, bye-laws, statutory instruments etc.

The procedure starts with the legislature passing a law that lays out broad guidelines and
various guiding principles before delegating authority to an executive or administrative
branch to help in carrying out the substantive provisions of the law. This statute or Act that is
approved by the Parliament is referred to as primary legislation because it establishes the
framework and clarifies the objectives of a specific law that must be subsequently developed
by the entity subordinate to the Parliament. The subordinate builds on the provided outlines to
provide the new law.1 The purposes emphasised in the Act of the Parliament are to be
synchronised with the legislation that is made after primary legislation.2 A delegated law has
the same legal status as the Act of Parliament from which it originated from.

Despite being a highly common practise today, delegated legislation has been one of the most
contentious topics in the field of law Academicians and intellectuals have frequently
expressed diametrically opposed views and taken different positions on the transfer of
legislative power. A high prerogative has been given to the legislature because of its own
"wisdom, judgement, and patriotism", and it will be ultra vires the constitution if the
legislature undertakes to delegate its power, as opposed to executing it. This has led to
arguments that no legislative body should be given the power to delegate laws to another
department of the government. Thomas Cooley has shown his extreme disapproval of the
legislature having the power to delegate. According to him, “one of the settled maxims in
constitutional law is that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body of authority, there it must remain; and by the
constitutional agency alone the laws must be made until the constitution itself is changed”.3

Despite this, delegated legislation has grown in the modern democratic systems. The role of a
state is no longer limited to the maintenance of the public peace, the enforcement of laws, and
the defence of its borders.4 The Union and State Legislatures lack the resources—both time
and expertise—necessary to address the technological and procedural complexities that are

1
Dr. Ketan Govekar, “Delegated Legislation in India”
2
Supra
3
Thomas McIntyre Cooley, “ A Treatise on the Constitutional Limitations” , 1868, Volume I
4
M P Jain & S N Jain, “Principles of Administrative Law”
inextricably woven into today's complicated way of life. Delegated legislation in this case
assists in anticipating and dealing with unexpected and unforeseeable occurrences. Delegated
legislation and administration5 are so inevitable and indispensable6 as a result of this.

The Supreme Court highlighted the following as its main rationale for granting the
Government the authority to enact laws in the case of Agricultural Marketing Committee v.
Shalimar Chemical Works Ltd.7:
It is possible that the subject matter for which the authority to enact delegated legislation is
granted is technically complicated enough that it would be impossible or at least challenging
to list every variation in the statute.
It could be necessary for the Executive to experiment in order to determine how the original
law functioned and then address all additional aspects.

Additionally, the court held in the case of State of Rajasthan v. Basant Nahata8 that delegated
legislation benefits the Executive in that a government with a demanding legislative schedule
may be tempted to pass skeleton legislation with the details being provided by rules and
regulations.

Constitutionality of Delegated Legislation

In India, legislatures have been provided broad delegation powers compatible with their
sovereign status. However, this authority has restrictions. The establishment or selection of
the legislative policy and the formal enactment of that policy into a legally enforceable act
are fundamental legislative duties that the Legislature cannot delegate. The Legislature is not
permitted to transfer "uncontrolled and unanalysed power." The delegation is only valid if the
legislative policy and the rules for implementing it are sufficiently laid down, and the
delegate is only given the authority to implement the law in accordance with the rules
established by the Legislature. It is necessary to consider the subject matter, the scheme, the
provisions of the statute, including its preamble, and the facts and circumstances in the
context of which the statute was passed when determining if any specific legislation suffers
from excessive delegation.

In Pandit Banarasi Das Bhanot v. State of Madhya Pradesh 9, it was ruled that the ability to
levy taxes is a well-known legislative power and that the Legislature has been given
sufficient flexibility to provide a delegate the authority to determine the particulars of a tax
policy. Justice Venkatarama Aiyer noted that it is not unconstitutional for the Legislature to
entrust the executive to decide further details regarding the operation of taxation laws, such
as the people

5
The Report of the Committee on Ministers’ Powers, 1932
6
Registrar, Co-operative Societies v. Kunjabmu, AIR 1980 SC 350 : (1980) 1 SCC 340
7
AIR 1997 SC 2502, at 2507; (1997) 5 SCC 516
8
State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77: AIR 2005 SC 3401
9
1958 AIR 909, 1959 SCR 427
on whom the tax is to be levied, the rates at which it will be imposed in respect of various
classes of goods.

Furthermore, the Supreme Court decided in Harishankar Bagla v. State of MP 10 that section 3
of the Essential Supplies (Temporary Powers) Act, 1946, which gave the Central Government
authority to pass orders regulating or prohibiting the production, supply, and distribution of
essential commodities, was constitutional and that it did so because it was established by a
clear principle and provided adequate guidance. According to the ruling, the authority granted
by the enabling act must be used to ensure fair pricing, equal distribution, and the
maintenance or expansion of supply of any vital commodities.

In Kishan Prakash Sharma v. Union of India 11, the Supreme Court's Constitution Bench
established the test for determining the constitutionality of delegated legislation. In this case,
the Supreme Court ruled that the Legislature must define the scope of the power granted by
outlining the law's objective and establishing guidelines for the delegated authority to carry it
out. As a result, the delegation is only legal when the legislative policy and the
implementation rules are sufficiently spelt out, and the delegate is only given authority to
carry out the policy in accordance with the criteria established by the Legislature. After
establishing a legislative policy, the legislature may provide an administrative agency the
discretion in determining the particulars within the framework of the policy. When the
Constitution gives Parliament and state legislatures the obligation of drafting laws, it
implicitly forbids them from abdicating that duty to another body. A point of compromise is
that the delegate will fill the gap created by Parliament's inability to discuss in detail diverse
requirements for providing the enactment effect.

In State of Rajasthan v. Basant Nahata14, the Supreme Court further held that one of the
duties of the legislature is to determine whether it is necessary to transfer authority to the
executive. According to Article 245 of the Constitution, it is an integral part of the entire
legislative authority. However, such a transfer of authority cannot be unrestricted, unplanned,
or unguided. When granting such authority, the Legislature must establish the requirements or
standards that will allow the holder of the authority to operate within the bounds of the law. It
is necessary to state the guiding philosophy for how the legislative branch will execute its
authority. As a result, the executive is often given the power to exercise the procedural
authorities according to a delegated legislation.

There are two main principles governing the delegation of legislative powers as underlined by
the Supreme court in Delhi Race Club Limited V. Union of India 12: first, that while delegating
the power to fix the rate of tax, there must be, among other things, some form of guidance,
control, safeguards, and checks by the Act and second, that delegation of the non-essential
legislative function of fixing the rate of imposts is required to meet the many demands of a

10
1954 AIR 465, 1955 SCR 313
11
(2001) 5 SCC 212 : AIR 2001 SC 1493
12
(2012) 8 SCC 680
welfare state. It is obvious that unless the impost is a tax, the issue of how to apply the second
principle won't come up. In light of this, it is acceptable to delegate a non-essential duty as
long as the legislative policy is established in plain words and gives direction to the delegate.

Control Mechanism over Delegated Legislation

On numerous occasions, the legislation approved by the legislature is skeletal in nature and
contains just the most basic ideas. Therefore, it is left to the Executive to not only give it a
specific structure, but also to develop policies and establish guiding principles for the
legislation's key provisions. Because of this, the Executive becomes supremely powerful and
has the capacity to impact people's life, liberty, and property without being subject to
democratic checks and balances established by a legislative discussion, which typically takes
place when a statute is passed by the Legislature.

Delegated legislation, which is frequently crafted in government chambers and frequently

enacted suddenly without much publicity, frequently lacks vital democratic safeguarding.
In this sense, there is concern that the governing body may stop being democratic due to the
abuse of the powers that are at its disposal. The administration's unrestrained use of delegated
legislation might undermine both civil and individual liberty. Therefore, it becomes crucial to
provide proper safeguards and controls so that only the benefits of delegated legislation may
be enjoyed while reducing the possibility of misuse that is present. The control mechanism of
administrative rule-making comprises three components, namely, legislative control,
procedural control, and judicial control.

Legislative Control

Every delegate is subject to the authority and control of the principal, and the exercise of
delegated power can always be directed, corrected, or cancelled by the principal. Hence,
parliamentary control over delegated legislation should be a living continuity as a
constitutional necessity13 In a parliamentary democracy, the role of the legislature is to enact
laws. It is not only the legislature's right, but also its duty, as the principal, to monitor how its
agent, the Executive, carries out the responsibilities assigned to it, if the legislature transfers
its legislative authority to the executive. Since the legislature provides the administration
legislative authority, it is largely the legislature's obligation to guarantee the appropriate
exercise of that authority, to oversee and regulate how it is utilised in practise, and to prevent
its unwarranted use.

The US Congress has very little authority over legislation that has been delegated by it
because neither is the "laying" procedure efficient nor is there a Congressional Committee in
existence to review it. This is because the validity of administrative rule-making is only
subject to judicial

13
Avinder Singh v. State of Punjab, (1979) 1 SCC 137: AIR 1979 SC 321.
scrutiny in accordance with the constitutional structure of that nation. However, because of
the idea of parliamentary sovereignty, which is present in England, Parliament has a very
broad and powerful degree of authority over the development of administrative rules. In
India, legislative control of the formulation of administrative rules is implicitly recognised as
a legitimate constitutional duty because the executive is responsible to the legislature.14

There are two mechanisms of legislative control in India:

1) Direct control

a) Memoranda on Delegation
The process of Parliamentary control over delegated legislation begins with the
delegation stage itself. A bill that proposes the delegation of legislative authority must
be "accompanied by a memorandum explaining such proposals and drawing attention
to their scope, and stating also whether they are of exceptional or normal character" 15
according to a rule of procedure for each House of a Parliament. The Lok Sabha
Committee on Subordinate Legislation described the norm, which is of an informal
nature, as obligatory. It has also been emphasised that a bill's memorandum should
fully explain the purpose of transferring authority to delegate, the topics that may be
covered by rules, the specifics of the subordinate authority who will be employing the
transferred authority, and how it will be employed.

b) Laying Procedure
The primary goal of this process is informational. The fundamental tenet is that the
House of Parliament must be informed of the details of any delegated legislation that
the Government occasionally makes in accordance with various statutes if Parliament
is to exert any control. Garner claims that the purpose of the laying procedure is to
alert potential Members of Parliament about the proposals for legislation.16
The Statutory Instruments Act of 1946, which establishes a timetable, requires that all
administrative rules be made under the supervision of Parliament, which explains why
the laying process is so widely used in England.17

The Apex Court observed that there are three alternative laying provisions that take
on different shapes depending on the level of control that the Legislature may choose
to exert in the case of Atlas Cycle Industries Ltd. v. State of Haryana.18 These include:
i. Laying without further procedures
ii. Laying subject to affirmative resolution
iii. Laying subject to negative resolution

14
IP Massey, Administrative Law, Ninth Edition
15
Lok Sabha Rule 70, Rajya Sabha Rule 65
16
Garner, Administrative Law, 60 (1985)
17
IP Massey, Administrative Law, Ninth Edition
18
(1979) 2 SCC 196: AIR 1979 SC 1149
 Laying Rules before the Legislature that serve as a check on excessive delegation is
one way of establishing legislative scrutiny of delegated legislation.19

Techniques of Laying used in India are:

(1) Laying with no further direction-In this kind of laying, regulations are laid and
immediately take effect. It is just for the purpose of informing the House about the
rules.
(2) Laying subject to negative resolution. -The rules in this procedure take effect as
soon as they are laid on the House's table, but they will no longer be in force if the
House decides to invalidate them.
(3) Laying subject to affirmative resolution. -This approach can be used in one of two
ways: either the regulations are declared to be null and void until authorised by
Parliament, or the rules are declared to be ineffective unless shown otherwise by an
effective resolution.
(4) Laying in draft subject to negative resolution. -According to such a provision, if
any Act has a provision for this kind of laying, the draught regulations must be laid
before the House and must enter into force 40 days after the date of laying, unless
they are rejected earlier.
(5) Laying in draft subject to an affirmative resolution. -This kind of laying requires
that the instruments or proposed rules have no effect unless they are approved by the
House.
The Salaries and Allowances of Ministers Act of 1952 and the Essential Services
Maintenance Act of 1968 both follow the affirmative method. The affirmative
method, in the view of the Rajya Sabha Committee on Subordinate Legislation, would
increase the efficacy and significance of parliamentary control.

2) Indirect control
A committee on subordinate legislation is established in each House to further exert
parliamentary control. The Lok Sabha Subordinate Legislation Committee predates
the Rajya Sabha Subordinate Legislation Committee. The Committees review the
rules that are presented to the House during the laying process. The Committee's job is
to examine and inform the House of whether the delegation of the authority to adopt
rules, regulations, etc. by the Parliament has been correctly carried out.
The Committee is to check:
● Whether the order laid down before the House is in accordance with the general
● object of the Constitution or the Act in the wake of which it is made;
● Whether the matter contained in it should have rather been dealt with in an
Act of
● Parliament;
● Whether it contains an imposition of tax;
● Whether it bars jurisdiction of the Courts, directly or indirectly;
● Whether it involves expenditure from the Consolidated Fund of India or the
public

19
DCM v. Union of India, (1983) 4 SCC 166: AIR 1983 SC 937
 ● revenues.
● Whether it has made some strange or unforeseen use of the power conferred
by the
● Constitution or the Act pursuant to which it is made;
● Whether its laying before the Parliament or publication was unjustifiably
delayed;
● Whether it gives retrospective effect to any of the provisions with regard to
which the
● Constitution or the Parent Act does not empower it; and
● Whether its form or structures requires further detailing for some apparent
reason20

Procedural Control

The Parliament is unable to effectively oversee legislation that has been delegated. As a
result, some procedural protections have been established that are necessary to continuously
monitor how the administrative authorities are using this power.
The following categories can be used to study procedural control techniques.

(i) Prior Consultation of Interests:

Prior consultation with affected interests are a frequent practise in the US. The
Administrative Procedure Act (S. 553) mandates that the rule-making authority consult the
parties that stand to be impacted.21 The relevant agency offers the interested parties a chance
to submit their representations within a set deadline. In the US, there are many Acts that
provide for the consultation of advisory bodies that have been created specifically for these
reasons, in addition to the consultation of interested parties.

This method can help prevent the executive from using its rule-making authority unjustly.
This has shown to be particularly true in situations when the interests are well-organized and
in frequent communication with the administrative authorities. There is presence of informal
consultation in England. But only when it is required by a legislative requirement does
consultation become a matter of right. Affected interests are not required to be consulted
during the rulemaking process according to any statutory law.35d Statutes occasionally
provide a condition or procedure for specified entities or interests to be consulted by the rule-
making authority.

There is no general legal requirement in India that the impacted parties be consulted during
the rule-making process. When consultation is necessary, provision like "the power to make
rules shall be subject to the conditions of previous publication" is put into the parent Act.

20
M P Jain & S N Jain, “Principles of Administrative Law”
21
M.P.Jain & S.N. Jain, Principles of Administrative Law, (2013) Vol. I 7th Edn., LexisNexis
Publication
(ii) Prior Publicity of Proposed Rules and Regulation:
Wherever previous consultation has been viewed as being required in India, the practise of
prior publication has been carried out. The authority must publish the rules in a way it deems
appropriate in order to provide affected parties with the information required under Section
23 of the General Clauses Act of 1897. When finalising the rules, the authority shall take into
account any such objections that it may receive.

(iii) Publication:
The act of publishing anything, bringing it to the attention of the public, or making it
available for public inspection is referred to as "publication." It is sometimes referred to as
"advising the public" or "making something known to them for a purpose." Publicity is an
essential component of the rule-making process since the maxim "ignorance of the law is no
excuse" is founded on the premise that the public has access to the laws.
Because there is no standard legislation in India dictating the manner of publishing
regulations, the practise varies from statute to statute. However, in other instances, the
administrative body is allowed to select its own method of publishing. In other cases, the law
requires that the rules be published in the Official Gazette. In these situations, publication
must be done in a "recognisable" or "customary" way. If the parent legislation specifies a
particular method of publishing, that method must be used. The administrative authority may
specify the form of publishing in cases where the parent legislation is silent, and such a mode
of publication may be adequate if reasonable. The publication that had been published in the
local newspaper but not in the local language was revoked by the Supreme Court in State of
Orissa v. Sridhar Kumar.22 In Harla v. State of Rajasthan, the Supreme Court ruled that a law
cannot be put into effect until it has been publicised. The regulations usually come into force
on the day of publication, unless the rule-making authority has specified a different date.
However, the Allahabad High Court ruled in Banarasi Das v. U.P. Govt23 that the service
rules take effect as of the day they are made due to the unique nature of such regulations. As
long as the rules are legal despite operating retrospectively, administrative agencies are
permitted to provide their rules retrospectivity.

Judicial Control

Although there is parliamentary supervision, judicial control over delegated legislation is

nevertheless seen as a crucial form of control. The primary foundation for Judicial control is
derived from the courts' constitutional duty to protect the rule of law. In a state governed by a
constitution, the judiciary plays a crucial role in ensuring that the laws passed by the
legislature do not violate the constitution and that any delegated legislation passed under the
parent statute is compliant with both the parent statute and the constitution. Because the
courts have the

22
(1985) 3 SCC 697: AIR 1985 SC 1411
23
AIR 1959 All 393
authority to invalidate laws that violate the Constitution or the parent statute, the judicial
method of control is thought to be more effective.

The enabling Act in no way precludes this judicial review of administrative rulemaking. State
of Kerala v. K.M.C. Abdulla & Co., the Supreme Court ruled that although the clause of the
enabling act read that the rules "shall not be called in question in any court" their legality can
still be contested.

In various decisions, the Supreme Court has considered the extent of Judicial Review,
repeatedly maintaining that the authority of judicial review is not designed to take a
supervisory function or to don the robes of the omnipresent.24 The Court is to guarantee that
statutory tasks are not carried out arbitrarily by officers of the Government/local authority.
The Court, on the other hand, cannot assume the position of these authorities and act in their
shoes.25 In Ram Krishna Dalmia v Justice S.R.Tendulkar26, a constitution bench of five
Supreme Court judges gave the scope and extent of the power of judicial review of legislation
in India after analysing a preceding decisions.
These are:
1) Parent act is Ultra Vires the Constitution:
If the parent legislation or enabling Act is unconstitutional, then the rules and
regulations made under such statute will likewise be ruled void if they violate the
stated or implicit boundaries of the constitution. In order for delegated legislation to
be valid, the parent Act under which legislative powers are transferred to the
Administration must be constitutional. If there has been undue delegation or a
violation of Fundamental Rights, the Parent Act may be declared ultra vires.

The court ruled in Delhi Laws Act, 1912, that the later half of section 2 was
unconstitutional because it enabled an administrative body to repeal a law, which the
court considered to be an essential legislative role. Similarly, in Hamdard
Dawakhanal27, the court ruled that Section 3(d) of the Drugs and Magic Remedies
(Objectionable Advertisements) Act was unconstitutional because the legislature had
not provided adequate directions for the exercise of administrative power in selecting
a disease which was supposed to be added to the schedule. The Supreme Court
decided in Mohini Jain v. State of Karnataka28 (Mohini Jain) that defining "capitation
fee" is an important legislative duty that cannot be assigned, and so Section 2(b) was
held to be an example of excessive delegated legislation.

2) Delegated legislation is ultra-Vires the Constitution:

The parent act may be valid, but the delegated legislation that flows from it may
violate some provision of the constitution. Under such circumstances, the delegated
legislation
24
M P Jain & S N Jain, “Principles of Administrative Law”
25
Nagar Nigam, Meerut v. Al Faheem Meat Exports (P) Ltd, (2006) 13 SCC 382, 394
26
1959 SCR 279
27
AIR 1960 SC 554
28
(1992) 3 SCC 666.
 is invalid. In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh56, a few
provisions of the U.P. Control Order, 1953, made under Section 3 (2) of the Essential
Supplies Act, 1946, were held ultra vires they infringed Article 19 (g), a fundamental
right guaranteed to all citizens to practise any profession or carry on any occupation,
trade or business. In Air India v. Nergesh Meerza29, the Supreme Court declared
certain regulations pertaining to the conditions of service of air hostesses in Air India,
a Central Government undertaking, to be discriminatory under Article 14 of the
Constitution, which guarantees equality before the law or equal protection of the laws
within India's territory.

3) Doctrine of Ultra Vires:

Subordinate legislation does not have the same level of immunity as a statute
approved by a competent legislature. A subordinate statute may be challenged on the
grounds that it is inconsistent with the parent statute. It might also be challenged on
the grounds that it violates another legislation dealing with a comparable issue.
Similarly, it might be questioned on the basis of arbitrariness.

In "Dwarka Nath v. MCD30," the Supreme Court ruled that Rule 32 of the Prevention
of Food Adulteration Act, 1954, was ultra vires the Act and exceeded the powers
granted to the government. The court also decided in Mohini Jain31 that the rules
created by the government under the Karnataka Educational Institutions (Prohibition
of Capitation Fees) Act, 1984 are in contravention of the Act's aim and object, and
thus void.

4) It is mala fide:
Administrative rules might be challenged on the basis of ulterior motive. The Drugs
and Cosmetics Act of 1940 authorised the government to specify the quality
requirements set by medication and cosmetic manufacturers. Rule 150-A of the Act
requires eau de cologne makers to add 1% diethyl phthalate, a toxic chemical, to
render the product unpotable. The Bombay High Court ruled that this was
unconstitutional since the government could not implement its prohibition policy
under the pretence of prescribing norms.

5) It is arbitrary in nature
It was decided in the case of State of M.P v. Mahalaxmi Fabrics Mills Ltd.32 that
subordinate legislation can be challenged on the grounds that it is arbitrary, illogical,
or confiscatory in nature, therefore violating Articles 14 and 19 (1) (g) of the Indian
Constitution.

29
AIR 1981 SC 1829 : (1981) 4 SCC 335
30
AIR 1954 SC 224.
31
(1992) 3 SCC 666.
32
Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895: (1965) 1 SCR 970
Conclusion

India is a parliamentary democracy, and legislative authority over administration is more

theoretical than a reality. In Avinder Singh v. State of Punjab33, Krishna Iyer J. said that
parliamentary jurisdiction over delegated legislation should have a live continuity as a
protected requirement. The Indian Parliament lacks both the time and the skills to manage a
government that has become as voluminous as it is complicated. The executive has command
over the legislative and is thus heavily involved in the formation of its policies and standards.

In India, the judiciary's control over delegated legislation is important in India. The judiciary's
constitutional status is such that its right to evaluate legislation, whether directly from
Parliament or via subordinate bodies, cannot be limited. A statute seeking to give subordinate
laws statutory finality would not bind the court. However, it is argued that judicial control, by
definition, can only be of limited usefulness. The court may intervene to prevent abuse of
authority or its use for purposes other than those to which it has been granted. Any further
intrusion by the courts will jeopardise the potentials of delegated legislation--a procedure of
unquestionable need and undeniable use.

Effective legislative control over the misuse of delegated legislative powers must originate
from the legislature itself, first at the moment of delegation and then in the supervision of
how they are applied. Furthermore, it would be preferable if India had legislative regulations
governing the "laying" of delegated legislation. The importance of public participation in the
rule-making process cannot be overlooked. In a democratic society, the administration must
respond to the needs and opinions of individuals whose lives its regulations will affect.

33
1979 AIR 321, 1979 SCR (1) 845