DELEGATED LEGISLATION

Montesquieu, a French scholar, conceived the principle of

separation of powers. He felt that governmental power should be
vested in three different organs, the legislature, the executive and
the judiciary.  
Each organ should be independent of the other and no one organ
should perform functions that belong to the other. The Indian
Constitution does not strictly follow the principle of separation of
powers.  The executive is a part of the legislature and is
responsible to it.  
In all democratic countries, an important segment of
administrative process is delegated legislation.  
The great increase in delegated legislation in modern times is due
to several factors.
Though law making is the primary function of the legislature, yet
in no country does the legislature monopolise the entire legislative
power; it shares the same with the executive.  
A large bulk of legislation is made by the Administration under
the powers conferred on it by the legislature.  No statute is
passed today by a legislature which does not confer some
legislative power on the Administration.  
The Act conferring legislative power is known as the “Parent
Act”; the subordinate legislation goes under various
appellations, such as, rules, regulations, schemes, by-laws,
statutory rules, orders etc.  The power of delegated legislation
may be given to the Central Government or the State
Government depending upon whether the statute is a Central
or a state law. Sometimes Central laws delegate legislative
powers to the state governments and sometimes both the
Central and the state governments derive rule-making power
from the same Act.
 MEANING
 Delegated legislation has been defined by: Salmond as – ‘that which
proceeds from any authority other than the sovereign power and is
therefore dependent for its continued existence and validity on some
superior or supreme authority’.

In simple terms it means-‘when the function of legislation is entrusted to

organs other than the legislature by the legislature itself the legislation
made by such organs is called delegated legislation’.

Here we may give some instances of delegation viz., the Northern India
Canal and Drainage Act, 1873, the Opium Act, 1878; the Advocate Act,
1961, the Export & Import Act, Essential Commodities Act, 1955, the
Indian Medical Council Act, the Right to Information Act,2005 etc.
The Legislature is considered to be the main source of power
of an administrative agency. 
 Administrative agencies only carry the powers conferred
upon them either by the statute or by the constitution. 
Administrative agencies derive their powers from their
enabling legislation and it cannot exceed that power which is
granted by the legislature.  However, administrative agencies
do not carry any inherent, general or common law powers.
Generally, most of the administrative agencies have
investigative, rulemaking, and determinative functions. 
Additionally, some statutory schemes permits administrative
enforcement, and some administrative agencies are given
express authority to reconsider, amend, correct, or modify
orders.
 Delegated Legislation and Executive
Legislation
Delegated Legislation is not to be confused with executive
legislation.
Delegated Legislations means laws made by authority other
than legislatures to whom legislatures delegates its legislative
powers where as the Executive Legislation means the laws
made by the President and the Governor under article 123 and
213 of the Constitution.
These have the force of the law in the form of Ordinances.
Such ordinances are issued by the legislatures when the
legislatures are not in session and there is grave necessity.
These ceased to be operate in case if it is not approved by the
Parliament within 6 weeks of re-assembly of the Parliament.
The Legislative/ Delegated Rulemaking Power of Administrative Agencies

Legislature is the law-making organ of any state. In some written

constitutions, like the American and Australian Constitutions, the
law making power is expressly vested in the legislature. However,
in the Indian Constitution though this power is not so expressly
vested in the legislature, yet the combined effect of Articles 107 to
III and 196 to 201 is that the law making power can be exercised
for the Union by Parliament and for the States by the respective
State legislatures. It is the intention of the Constitution-makers
that those bodies alone must exercise this law-making power in
which this power is vested. But in the twentieth Century today
these legislative bodies cannot give that quality and quantity of
laws, which are required for the efficient functioning of a modern
intensive form of government.
Therefore, delegation of law-making power to the administration
is a compulsive necessity.
When any administrative authority exercises the law-making
power delegated to it by the legislature, it is known as the rule-
making power delegated to it by the legislature, it is known as
the rule-making action of the administration or quasi-legislative
action and commonly known as delegated legislation.
Rule-making action of the administration partakes all the
characteristics, which a normal legislative action possesses.
Such characteristics may be generality, prospectivity and a
behaviour that bases action on policy consideration and gives a
right or a disability. These characteristics are not without
exception. In some cases, administrative rule-making action may
be particularised, retroactive and based on evidence.
 Characteristic of Rule Making Actions-

Rule Making Action of the administration partakes all the

characteristic features which a normal legislative action
possesses which are generality, prospectively and behavior which
bases action on policy consideration and creates rights and
liabilities. But in certain cases such rule making action may be
particularised, retro-active and based on evidence.
Illustrations of the Legislative Actions-
Fixation of the price.
Declaration of the place to be market yard.
Imposition of the tax.
Establishment of the Municipal Corporation under
statutory provisions.
Extension of the limits of town area committee.
In administrative law, rule-making is the process that executive 
and
 independent agencies use to create, or promulgate, regulations.
In general, legislatures first set broad policy mandates by
passing statutes, then agencies create more detailed
regulations through rulemaking.
Black’s Law Dictionary defines ‘Delegation’ as ‘the act of
entrusting another with authority or empowering another to act
as an agent or representative’. E.g. Delegation of Contractual
Duties.
 ‘Subordinate Legislation’ has been defined as:
“Legislation that derives from any authority other than the
Sovereign Power in a state and that depends for its continued
existence and validity on some superior or supreme authority.”
Salmond defines – “Subordinate legislation is that which
proceeds from any authority other than the sovereign power,
and is therefore dependent for its continued existence and
validity on some superior or supreme authority.”
Delegated legislation is, at times, referred to as “Ancillary”,
“Subordinate”, Administrative Legislation or as Quasi-
Legislation”. Delegated legislation is a technique to relieve
pressure on legislature’s time so that it can concentrate on
principles and formulation of policies.
Essential characteristics of Delegated Legislation
1. The rules should contain short titles, explanatory notes, reference to
earlier amendments, etc. for clear understanding.
2. No extra-ordinary delay shall occur in making the subordinate legislation.
3. The administrative authority should not travel beyond the powers given in
Parent Act.
4. Essential legislative functions cannot be delegated.
5. Sub-delegation (Delegatus non potest delegare) is not encouraged.
6. General rules should not be framed with retrospective operation, unless
and until the parent Act instructs to do so.
7. Discriminatory and arbitrary rules should not be framed. 8. Wide and
sufficient publicity shall be given so that general public can know it.
9. In appropriate cases, consultation also shall be made for more
effectiveness and efficiency.
10. The Sub-ordinate authorities should not use rigid, crux and
technical language while preparing the rules, which may
cause difficulty to understand by general public.
11. The final authority of interpretation of the subordinate rules
is vested to Parliament and Courts. But the administrative
authorities are not empowered and authorised to interpret the
statutes.
12. A tax or financial levy should not be imposed by rules.
13. Wherever it is necessary, the explanatory notes shall be
given.
14. Public interest must be kept in view while delegating the
powers, etc.
 History of Delegated legislation in India
Pre – constitutional Position:
The history of delegation of powers can be traced from the
charter stage of 1833 when the East India Company was
regaining political influence in India. The of 1833 vested the
legislative powers exclusively in Governor – General – in
council, which was an executive body. He was empowered to
make laws and regulations for repealing, amending or altering
any laws or regulations, which were in force for all persons
irrespective of their nationality. In 1935 the Government of
India Ac, 1935 was passed which contained an intensive
scheme of delegation. The report of the committee on
ministers’ powers was submitted and approved which fully
established the case for delegation of powers and delegation of
legislation was regarded as inevitable in India.
 
Present Position:
Though, our constitution was based on the principal of separation
of powers, a complete separation of powers was not possible
hence it maintained the sanctity of the doctrine in the modern
sense. The Indian Constitution does not prohibit the delegation of
powers. On the other hand there are several provisions where the
executive has been granted the legislative powers. For example
the legislative powers of the president under the Indian
Constitution are conspicuous. Under Article 123 the president
has the power to promulgate the ordinances and unrestricted
power to frame regulations for peace progress and good
government of the union territory under Article 240. The
Supreme Court of India has also upheld the delegation of
legislative powers by the legislative to the legislative to the
executive in the case of Raj Narayan Singh v. Chairman
PatnaAdministration Committee.
 of India

The Legislature is quite competent to delegate to other authorities.

To frame the rules to carry out the law made by it. In D. S. Gerewal
v. The State of Punjab (1970) 72 PLR 657, K.N. Wanchoo, the then
justice of the Hon'ble Supreme Court dealt in detail the powers of
delegated legislation under the Article 312 of Indian Constitution.
He observed: "There is nothing in the words of Article 312 which
takes away the usual power of delegation, which ordinarily resides
in the legislature. The words "Parliament may by law provide" in
Article 312 should not be read to mean that there is no scope for
delegation in law made under Article 312….“
 In the England, the parliament being supreme can delegated any
amount of powers because there is no restriction. On the other hand
in America, like India, the Congress does not possess uncontrolled
and unlimited powers of delegation. In Panama Refining Co. v.
Rayans 293 U.S. 388 (1935).
The supreme court of the United States had held that the
Congress can delegate legislative powers to the Executive subject
to the condition that it lays down the policies and establishes
standards while leaving to the administrative authorities the
making of subordinate rules within the prescribed limits.
 Art. 13 (3) Defines law and it Includes ordinance, order, byelaw,
rule, regulation & notification having the force of law.
 In Sikkim v. Surendra Sharma, (1994) 5 SCC282.
- it is held that ‘All Laws in force’ in sub clause (k) of Art. 371 F
includes subordinate legislation.
Salmond defines law as that which proceeds from any authority
other than the Sovereign power & is therefore, dependent for its
continued existence & validity on some superior or supreme
authority.
 Reasons of the Growth of Delegated Legislation-

Pressure upon Parliamentary Time.

Technicality of Subjects.
Filling in Details of Legislation.
The Need for Flexibility.
Administration through Administrative Agencies:.
Meeting Emergency Situations.
In the case of Registrar of Co-operative Societies v. K.
Kunjabam, 1980, J. Chinappa Reddy “Parliament and state
legislatures are not the body of experts or specialists. They are
experts in the art of discovering the art of aspirations, the
expectations and needs, the limits to the patience and
acquiescence and articulation of the views of the people whom
they represent. They function best when they concerned
themselves with general principles, broad objectives and
fundamental issues instead of technical and situational
intricacies which are better left to better equipped full time expert
executive bodies and specialist public servants.”
In the case of St. Johns Teachers Training Institute v.
Regional Director National Council of Teachers
Education, 2003, the court observed that the need for
delegated legislation is that they are framed with care and
minuteness when the statutory authority making the rules,
after coming into force of the Act is in a better position to
act.
 Merits

1. Pressure upon Parliamentary Time-

As a result of the expanding horizons of the state activity, the bulk of legislation is so great that it is not
possible for the legislation to devote sufficient time to discuss all the matters in detail. Hence there is
need for a delegation of power.
2. Technicality:
Sometimes, the subject – matter on which legislation is required is so technical in nature that the legislator,
being himself a common man, cannot be expected to appreciate and legislate on the same, and the
assistance of experts may be required. Hence, this lead to the growth of delegation of power.
 
3. Flexibility:
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some
provision is required to be made for these unforeseen situations demanding exigent action. Hence there
is a need for flexibility which leads to the growth of delegation of power.

4. Experiment:
The practice of delegated legislation enables the executive to experiment. The method permits rapid
utilization of experience and implementation of necessary changes.
 
5. Emergency:
In the time of emergency, quick action is required to be taken. The legislative process is not equipped to
provide for urgent solution to meet the situation. Hence there is need for delegation of power.
 Demerits
• It has been suggested that by allowing delegated legislation it has allowed to
make and amend laws.
• It lacks democracy as too much delegated legislation is made by unelected
people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary
legislation. Parliament therefore has a lack of control over delegated
legislation and this can lead to inconsistencies in laws. Delegated legislation
therefore has the potential to be used in ways which Parliament had not
anticipated when it conferred the power through the Act of Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made
by statutory instrument the public are not normally notified of it whereas with
Acts of Parliament, on the other hand, they are widely publicized.
One reason for the lack of publicity surrounding delegated legislation is
because of the volume of delegated legislation made and this result in the
public not being informed of the changes to law. There has also been concern
expressed that too much law is made through delegated legislation.
Control Mechanism of Delegated
Legislation in India

The control of delegated legislation may be one or more

of the following types: -
1) Procedural;
2) Parliamentary; and
3) Judicial
Judicial control can be divided into –
i) Doctrine of ultra vires and
ii) Use of prerogative writs.
A. Procedural Control-
Parliamentary control over administrative rule is admittedly weak
because the legislators are sometimes innocent of legal skills. A constant
search therefore is on for an alternative mechanism which besides
providing an effective vigil over administrative rule making can
guarantee effective people participation for netter social communication,
acceptance and effectively of the rules.
Procedural control mechanism has the potential to meet the above noted
requirements for allowing specific audit of rules by those for whose
consumption they are made.

Procedural control mechanism operates in three components:

1. Drafting
2. Antenatal publicity
3. Consultation
4. Postnatal publicity
 
B. Parliamentary 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 parliament
control over delegated legislation should be living
continuity as a constitutional necessity. The fact is
that due to the broad delegation of legislative
powers and the generalized standard control also
being broad, the judicial control has shrunk, raising
the desirability and the necessity of parliamentary
control.
In India the parliamentary control of delegated
legislation is implicit as a normal constitutional
function because the executive is responsible to
the parliament.
Legislation is an inherent and inalienable right of Parliament and it
has to be seen that this power is not usurped nor transgressed
under the guise of what is called subordinate legislation. It can
control the following:
1. Normal Delegation: -
a) Positive : - where the limits of delegation are clearly defined in
the enabling Act
b) Negative: - does not include power to do certain thing (these not
allowed)
2. Exceptional Delegation: -
a) Power to legislate on matters of principle
b) Power is amend Act of parliament (In re Delhi laws Acts )
In W.B. State Electricity Board v. Desh Bandhu Gosh, (1958) 3
SCC 116, it was held that Regulation 34 of the West Bengal
State Electricity Regulation which had authorized the Board to
terminate the Service of any permanent employer on three
months notice or pay in lieu there of. This hire & fire rules of
regulation 34 is parallel to Henry VIII clause.
In the case of Central Inland Water Transport Corporation
Limited v. Brojo Nath Ganguly, AIR1986SC1571, wherein rule
9 of the service rules of the CIWTC conferred power to
terminate on similar lines as in the case of Desh Bandhu Ghosh
the court went on to say that no description of Rule 9(i) can be
given than to call it "the Henry VIII clause". It confers absolute
and arbitrary power upon the Corporation and therefore invalid.
C. Judicial Control
Judicial Control over Delegated Legislation Judicial control over delegated
legislature is exercised at the following two levels:-
1. Delegation may be challenged as unconstitutional; or
2. That the Statutory power has been improperly exercised.

 The delegation can be challenged in the courts of law as being unconstitutional,

excessive or arbitrary.
 Within the wide limits, delegation is sustained it does not otherwise; infringe the
provisions of the Constitution.
 The limitations imposed by the application of the rule of ultra vires are quite clear.
If the Act of the Legislature under which power is delegated, is ultra vires, the
power of the legislature in the delegation can never be good.
 No delegated legislation can be inconsistent with the provisions of the Fundamental
Rights. If the Act violates any Fundamental Rights the rules, regulations and bye-
laws framed there under cannot be better. Where the Act is good, still the rules and
regulations may contravene any Fundamental Right and have to be struck down.
 Besides the constitutional attack, the delegated legislation may also be challenged
as being ultra vires the powers of the administrative body framing the rules and
regulations.
The validity of the rules may be assailed as the stage in two
ways:—
(i) That they run counter to the provisions of the Act; and
(ii) That they have been made in excess of the authority delegated
by the Legislature.
Illustrative cases- In Kruse. v. Johnon [1898] 2 QB 91, It was laid
down that a bye-law would be unreasonable if it is found to be
(i) partial or unequal i.e. its operation as between different classes;
(ii) manifestly unjust.
(iii) disclosing bad faith; and
(iv) involving such oppressive or gratuitous interference with the
right of the people that it could find no justification in the
minds of reasonable men.
Constitutionality in different countries
The basic question that arises in the study
of delegated legislation is whether a
Legislature can delegates its law making
power to other agencies?
 Position in U.K.
In U.K. Where Parliament is Supreme and have unlimited
powers and is free to make or unmake any law either make
law itself or authorise other to make the laws and what be the
limits of delegating is a matter to be decided by the
Legislature, itself and court have no say in the matter. The
courts cannot question the validity of the acts passed by the
Legislature.
 Position in USA
The American rule against non-delegability of legislative
power is primarily based on the doctrine of separation of
powers.
The framers of USA were influenced much by Lock and
Montesquieu and for them concentration of powers in one
person leads to tyranny.
In the case of Field v. Clarke, the Supreme Court of USA held
that “the powers entrusted to one department should be
exercised exclusively by that department without encroaching
upon the powers of others.”
But there is other view which derives from the concept of
delegatus non-potest delegare. Lock implied this theory to
ht epublic law when he said that legislatures cannot
transfer their essential functions.
Impossibility of rigid application of the doctrine of
separation of powers was soon accepted by the judges.
In 1825, in the case of Wagman v. Southard, Chief Justice
Marshall said that exact line has not been drawn between
those subjects which were important and therefore must
be entirely regulated by the Legislature itself and those
which were of less interest after general provisions made
given to others to fill the gap.
In the entire history, the delegated legislations were
declared in three cases-
 Carter v. Carter coal company.
 Panama Refinery Co. V. Rayans.
 Schescheter Poultry corporation v. United States.
 Position in Australia
By sections 1, 61 and 91 of the Commonwealth of Australian
Constitution Act, 1960 the legislative, the executive and the
judicial powers are vested respectively in the Commonwealth
Parliament, , the Queen, the High Court and other federal courts of
Australia.
Constitution of Australia is based on the principle of separation of
powers.
This separation does not prohibit delegation of legislative powers
to the Executives.
Baxter v. Ashway in which Customs Act, 1908 provisions were
disputed.
Constitutionality was challenged in the case of Victorian etc.
Company & Meakes v. Dignan in which section 3 of Transport
Workers Act, 1928-29 was challenged.
 Position in Canada
First Canadian case was Russel v. The Queen in which the
validity of Canadian Temperance Act was challenged on the
ground of unconstitutionality of delegated legislation. But the
Privy Council held that it is valid one.
In Hodge v. Queen, the Court reiterated the principle that the
Legislature was not a delegate or agent of Imperial Parliament
but had authority as plenary and as ample within the limits
prescribed by Section 92 as the Imperial Parliament in the
plenitude of its power proposed and could bestow.
 Position in India
Article 245 and 246 provide that the Legislative power shall be
discharged by the Parliament and State Legislature. There is
nothing in the Constitution whereby it can be inferred that
Legislatures cannot delegate their legislative powers to anybody
else.
There are many provisions in the Constitution by which the
executive heads, i.e. President and the Governors have been
empowered to make laws under contingencies.
Section 13 (3) (a) defines law which includes ordinances, orders,
by-laws, rule, notification, regulation etc and if they are made in
the violation of F.R., they will be declared void.
Important cases-
Re Delhi Laws Act.
Vasant Lal Magan Bhai Case.
Avinder Singh v. State of Punjab.
 Permissible Limits
It is well settled that Legislatures can delegate their powers to
the executive without violating the Constitution.
In the case of Secretary, Ministry of Chemicals and
Fertilizers, Govt. Of India v. M/s Cipla Ltd and Othrs, 2003,
the SC held that the Government exercising its delegated
legislative powers should make a real and earnest attempt to
apply the criteria laid down by itself that policy formulation
should be broadly and substantially without violating any
provision of the Constitution.
In the case of colourable legislation where there is no clear
cut policy of Legislature then the Govt Policy can be set
aside- Patasi Devi v. State of Haryana, AIR 2013.
In the case of Devidas Gopal Krishnan v. State of Punjab,
AIR 1967, the parliament/legislature may not declare its
policy in details but in general way or it may not set any
standard for the guidance of the executives, it may confer
arbitrary powers without any control in its hand. Then, it will
be beyond the permissible limits of delegation.
In D. S. Gerewal v. The State of Punjab , K.N. Wanchoo, the then
justice of the Hon'ble Supreme Court dealt in detail the powers of
delegated legislation under the Article 312 of Indian Constitution. He
observed: "There is nothing in the words of Article 312 which takes
away the usual power of delegation, which ordinarily resides in the
legislature.
The words "Parliament may by law provide" in Article 312 should
not be read to mean that there is no scope for delegation in law made
under Article 312…." In the England, the parliament being supreme
can delegated any amount of powers because there is no restriction.
On the other hand in America, like India, the Congress does not
possess uncontrolled and unlimited powers of delegation. In Panama
Refining Co. v. Rayans, the supreme court of the United States had
held that the Congress can delegate legislative powers to the
Executive subject to the condition that it lays down the policies and
establishes standards while leaving to the administrative authorities
the making of subordinate rules within the prescribed limits.
Doctrinal of permissible limits basically talks about the
powers of a legislature which can be delegated to the
Administrative authorities a legislation cannot delegate all its
powers. The legislature has some limited powers which can be
delegated.
The powers which can be delegated are as follows-
'appointed day' clause.
Supplying details.
Modifications.
Prescribing punishments.
In Jalan Trading company v. Mill Majdur Sabha the supreme
court was called upon to decide the legality of such a clause.
Section 37 (1) of the payment of Bonus Act 1965 empowered the
central government to make such orders, not inconsistent with
the purpose of the act, is might be necessary or expedient for the
removal of any doubts or difficulties. Section 37 (2) made the
order passed by the central government under sub section (1)
final. The court by a majority of 3:2 held section 37 ultra vires on
the ground of excessive delegation in as much as the government
was made the sole judge of whether any difficulty or doubt had
arisen, whether it was necessary to remove such doubt or
difficulties and whether the order made was consistent with the
provisions of the act. Again, the order passed by the central
government was 'final'. Thus, in substance, legislative power was
delegated to executive authority, which was not permissible.
The minority, however, took a liberal view and held that the
functions to be exercised by the central government was not
legislative functions at all but were intended to advance the
purpose which the legislature had in mind. In the words of
Hidautllah, J. "parliament has not attempted to set up
legislation. I have stated all that it wished n the subject of bonus
in the act. Apprehending, however, that in the application of the
new act doubts and difficulty might arrive and not leaving there
solutions to the court with the attendant delays and expense,
parliament have chosen to give power to the central government
to remove doubt and difference by a suitable order."
It is submitted that the minority view is correct and after Jalan
trading company, the Supreme Court adopted the liberal
approach.
 In Gammon India Ltd. V. union of India a similar provision was held
constitutional by the court. Distinguishing Jalan Trading Company, the court
observed: "in the present case, neither finality nor alteration is contemplated in
any order under section 34 of the act. Section 34 is for giving effect to the
provisions of the act. This provision is an application of the internal
functioning of the administrative machinery.“
 It, therefore, becomes clear that after Jalan Trading Company, the court
changed its view and virtually overruled the majority judgment. In Patna
University v. Amita Tiwari, the relevant statute enabled the chancellor to issue
the directions to universities "in the administrative and academic interest."
In exercise of that power, the chancellor directed the university to regularize
services of an ineligible teacher "on compassionate grounds." When the action
was challenged, it was sought to be supported on the basis of "removal
difficulties" clause.
Holding that the "removal of difficulties" clause had only limited application,
the Supreme Court quashed the order. It is submitted that by using a 'removal
of difficulties' clause, the government "may slightly tinker with the act to round
off angularities and smoothen the joint or remove minor obscurities o make it
workable, but it cannot change or disfigure the basic structure of the act.
In no case can it under the guise of removing a difficulty, change
the scheme and essential provision of the act" the committee on
ministers' powers” rightly opined that it would be dangerous in
practice to permit the executive to change an act of parliament
and made the following recommendations- "the use of the so
called Henry VIII clause conferring power on a minister to
modify the power of on a minister to modify the provision of acts
of parliament should be abounded in all but most exceptional
cases and should not be permitted by parliament except upon
special grounds stated in a ministerial memorandum to the bill.
Henry VIII clause should never be used except for the sole
purpose of bringing the act into operation but subject to the
limitation of one year." 
In Registrar of Co-operative Societies v. K. Kunjbum AIR 1980,
the Supreme Court held that “power to legislate carries with it the
power to delegate but excessive delegation may amount to
abdication and delegation unlimited may invite despotism
uninhibited.
Delegated legislation is subject to less Parliamentary scrutiny
than primary legislation. Parliament therefore has a lack of
control over delegated legislation and this can lead to
inconsistencies in laws. Delegated legislation therefore has the
potential to be used in ways which Parliament had not anticipated
when it conferred the power through the Act of Parliament.
Delegated legislation is the lack of publicity surrounding it.
When law is made by statutory instrument the public are not
normally notified of it whereas with Acts of Parliament, on the
other hand, they are widely publicized.
One reason for the lack of publicity surrounding delegated
legislation is because of the volume of delegated legislation
made and this result in the public not being informed of the
changes to law. There has also been concern expressed that too
much law is made through delegated legislation.
Hamdard Dawakhana v. Union ofIndia is the first clear case
which held a Central Act unconstitutional because of excessive
delegation authorised thereunder. Parliament passed an Act, the
Drugs and Magic Remedies (Objectionable) Advertisements Act,
1954, to control the advertisements of certain drugs. The Act
prohibited, among other things, the publication of any
advertisement referring to any during in terms which suggested
the use of that drug for diagnosis, cure, mitigation or treatment or
prevention of any venereal disease. Power was delegated under
Section 3 of the Act to the Central Government to specify by
rules ‘any other disease or condition to which the provisions of
the Act were to be applied’. Section 3 was challenged on the
ground of permitting excessive delegation. The Court held
Section 3 invalid because no proper guidance or standard was
supplied to the rule-making authority in determining what other
diseases were to be brought within the operation of the Act.