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
Pre – constitutional Position:
legislation in India
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.
 Delegated Legislation: Position under Constitution 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.