UNIT- II

Rule Making Power of Administration

 Legislative Branch
Executive Branch
Judicial Branch

Administrative Agencies

Judicial Functions Executive Functions

adjudicative hearings
investigation

enforcement
Legislative Functions

rulemaking
 Definition
“An administrative agency is a governmental authority,
other than a court and other than a legislative body,
that affects the rights of private parties through
either adjudication, rulemaking, investigating,
prosecuting, negotiating, settling, or informally
acting.”

Kenneth Culp Davis, Administrative Law and

Government 6 (2d Ed. 1975)
INTRODUCTION
 According to the traditional theory function of executive is
to administer the law enacted by the legislature and in
ideal state legislative function must be required to be
discharged by the legislature.
 Apart from pure executive function Administrative
authorities performs many quasi legislative and quasi-
judicial function.
 In England theoretically it is the Parliament who made the
laws but in addition to the Common Law and statute law,
the law of land includes a great deal of what may be termed
as “Subordinate” or “delegated legislation”. It comprises
orders, circulars, rules, regulations, Schemes, bye laws etc.
In USA where delegated legislation has not been
accepted theoretically in practice legislature has
entrusted legislative powers to the executive.
In India also this concept has been well recognized.
Indian Constitution though this power is not so
expressly vested in the legislature, 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.
DEFINITION

 Mukhreja J. “Delegated Legislation is an expression which covers

a multitude of confusion. It is an excuse for the legislators, a

shield for the administrators and a provocation to the
constitutional jurist.”
 According to Salmond, Legislation is either supreme or

subordinate. Whereas the former proceeds from sovereign

power later flows from any authority other than sovereign
power, and, is therefore, dependent for its existence and
continuance on superior supreme authority.
In Simple words “When function of legislation is
entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs
will be called as delegated legislation ”
According to Jain and Jain, the term ‘Delegated
Legislation’ is used in two senses: (i) exercise by a
sub-ordinate authority of the legislative power
provided by the legislature delegated power (ii)
subsidiary powers themselves which are made by the
subordinate authority in pursuance of the power
conferred on it by the legislature.
 Administrative Process
Three functions of administrative process
are:

Rulemaking Enforcement

Adjudication

8
Legislative functions
It include making rules, regulations and bye-laws etc.
Legislative functions to make all substantive laws.
Creates some future rights.
Wade “ there is no right to be heard before the making
of legislation, whether primary or delegated, unless it
is provided by the statute.
Judicial functions
Quasi- judicial in nature.
An authority other than a court e.g., administrative
officers, administrative tribunals.
“quasi- judicial decision can be discretionary one.
Having some attributes of law courts.
 Difference
Quasi
Judicial
judicial
functions
functions
1. Act under ordinary 1. Some attributes of
courts courts
2.Lis inter parties 2. Not true in every case
3. Cannot be judge in 3. Administrative
own case authority can be.

3. Bound by rules of 3. Not bound

evidence and procedure 4. Not bound by any
4. Bound by precedents precedent.
Characteristics of Administrative functions

No need to adopt
Based on
judicial approach Not bound by the
governmental
in Administrative rules of evidence
policies
decisions

Not always bound

by the principle of
Adm. Functions
natural justice,
can be delegated
unless expressly
required.
 Prerogative writs of
certiorari and
Adm. Authority may Adm. Order can be
prohibition –not
go by its discretion declared invalid-
always available
while giving decision. unreasonable
against adm.
Authorities.

Adm. Authority may

Wholly different
be legislative and
footing from judiciary
judicial in nature.
 Agency Creation and Powers
The study of Delegated Legislation requires an
understanding of:
Enabling Legislation.
The Types of Agencies.
Agency Powers and the Constitution.

14
KEY Points
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.
Examples of Delegated Legislation:
 Minimum Wages Act, 1948 is “to provide for fixing minimum
wages in certain employment.” The Act applies to employments
mentioned in the schedule. But the central Government
(Executive) is empowered to add any other employment to the
schedule.
 The Essential Commodities Act, 1955 enumerates certain
commodities as ‘essential commodities’ under the Act. But the
list given under the Act is not exhaustive and central government
is free to include any other commodity as and when required.
 Payment of Bonus Act, 1965 empowers the Central Government
to exempt any establishment or a class of establishment from the
operation of thse Act, having regard to the financial position and
other relevant consideration.
Supreme Vs. Subordinate Legislation
 Act, enactment or a statute is made by the a Legislature,
subordinate or delegated legislation is created by an
Executive or Administrative Authority. Both are products of
“Legislative function” of the state having the “force of law” in
their application to subjects.
 As Salmond states, an Act of Legislature proceeds from
supreme power of the state and has no ‘rival’ in the field. Its
also does not derive its authority from any other organ of state.
 Subordinate legislation, is framed by the executive and owes
its existence, continuance and validity on superior or
supreme authority i.e. Legislature.
 Subordinate law-making body is bound by the terms of its
delegated or derivative authority.
CHIEF SETTLEMENT COMMR v. Om Prakash
AIR 1969 SC 33, the Supreme Court stated: “It is
essential to emphasize that under constitutional system
the authority to make the law is vested in the
Parliament and State Legislatures and other law
making bodies and whatever legislative power the
executive administration possess must be derived
directly from the delegation of the legislation and
exercised validly only within the limits prescribed.
The notion of inherent or autonomous law making
power in the executive administration is a notion that
must be emphatically rejected. ”
 HISTORICAL GROWTH OF
DELEGATED LEGISLATION
 Ever since the statute came to be enacted by the parliament,
there was delegation of legislative function.
 Statute of 1337 contained a clause which made it felony to
export wool, unless it was ordained by the King and his
council.
 Statute of Sewers of 1531 empowered Commissioners to
make, remake, repeal and amend laws, to pass decrees and to
levy cess. Thus the Commissioner used to exercise
legislative, administrative and judicial powers at a time.
 In 19th Century delegated legislation become more common
and considerably increased due to social and economic
reforms.
Why Delegated Legislation
Pressure upon Parliamentary Time: Legislature
formulates the general policy- the Skeleton- and
empowers the legislature to fill in details- thus giving
flesh and blood to Skelton so that it may live.
Subject Expertise: Subject may be technical the
legislator being common man cannot aptly made the laws
in that reference.
Complexity of modern administration: Hon’ble SC has
observed in the Ajoy Kumar Banerjee v. Union of India
(1984)3SCC 127 that the practice of empowering the
executive to make law within prescribed sphere has
evolved out of practical necessity and pragmatic needs of
the modern welfare state.
Flexibility: While making law all contingencies
cannot be foreseen hence liberty to made law as per
need of contingency.
Experiment: it permits rapid utilization of experience
and implementation of necessary changes in
application of the provisions in the light of such
experience may be conducted and necessary changes
could be made.
Emergency circumstances
Forms of Delegated Legislation
Title based Classification: Delegated Legislation may
be in the forms of Rules, Regulations, Bye-laws,
Notifications, Schemes, Orders, Ordinances and
Directions etc.
Discretion based classification: Discretion may be
conferred on the executive to bring the Act into
operation on fulfillment of certain conditions.
Purpose based classification: Classification may be
based on nature and extent of power conferred and
purpose for which such power can be exercised.
Authority Based classification: Sub-delegation.
 Delegated Legislation in England
England believes in the Parliamentary supremacy. In
principle, it is only principle which can make laws. But as
observed by C. K. Allen: “Nothing is more striking in
the legal and social history of 19th century in England
than the development of subordinate legislation ”
In England traditionally administrative legislation was
looked upon as an evil, but gradually it came to be
regarded as justifiable in principle also.
Tests formulated to distinguish legislative and
administrative functions proved insufficient and
inappropriate.
But at the same time Administrative had not been
recognized as an accepted branch of law.
Taylor, therefore, has observed: “Until August,
1914 a sensible law abiding Englishman could
pass through life and hardly notice the existence of
the State, beyond the post office and policemen.”
In the 20th Century, parliament was obliged to
delegate extensive law making power in favor of
Government.
Donoughmore Committee observed in 1932 that
“the system of delegated legislation is both
legitimate by permissible and constitutionally
desirable for certain purposes, within certain
limits, and under certain safeguards. ”
 Delegated Legislation in USA
In USA on theory delegated legislation in not accepted
because of two doctrine.
Separation of Powers: Article I of US constitution confers
all legislative function in the Congress. Art. II provides that
the executive powers will be vested in the president. Art. III
provides that the judiciary has power to interpret the
constitution.
Case: Field vs. Clark (1892) 143 US 649 Supreme Court
observed “that congress cannot delegate legislative power
to the President, is a principle universally recognized as
vital to the integrity and maintenance of the system of
Government ordained by the Constitution.”
Delegatus non protest delgare: legislature cannot delegate
the power to make laws to any other authority or body.
Delegated legislation in US: Practice
 Government function had increased and it was impossible for the
congress to enact all the laws.
 SC propounded a balance approach between two underlying principles.
 Case: Panama Refining Co. V. Ryan (1934) 293 US 388 popularly
known as the Hot Oil case under section 9 (c) of the National Industrial
Recovery Act (NIRA) 1933, the President was authorized by the
Congress to prohibit transportation of oil in inter-state commerce in
excess of quota fixed by the state concerned. The policy of the Act was
“to encourage national industrial recovery and ‘to foster fair
competition’. Supreme Court by majority held that the delegation was
invalid. ”
 Schechter Poultry Corp. V US (1935) 295 US 495 (Sick Chicken case)
SC struck down section 3 of NIRA which authorize the president to
approve the codes of fair competition and violation thereof was made
punishable.
 After two cases we can see liberal approach of the SC.
Cases allowing the Delegated Legislation
National Broadcasting Co. v. U.S., (1943) 319 US 190,
vast powers were conferred upon the federal
communication committee to license broadcasting
stations under the Communications Act, 1934. the
criterion was public interest, convenience or necessity.
Though it was vague and ambiguous, SC held to be
valid standard.
Yakus Vs. U.S. (1944)321 US 414 Under the Emergency
Price Control Act, 1942 the price administrator was
given the power to fix such maximum price which in
his judgment will be generally fair and equitable and
will effectuate the purposes of the Act. SC sustained the
delegation, holding that the standard were adequate.
Cases allowing the Delegated Legislation
Whiteman v. American Trucking Association (2001)
531 US 457 the legislature delegated power to
Environment Protection Agency to promulgate air
quality criteria. The relevant act also authorize EPA to
review such standard and make “such revision as may
be appropriate”. The provision was challenged on the
ground of excessive delegation to EPA. The Court of
appeal upheld the contention. However, SC upheld the
delegation observing that certain degree of discretion
to agency could be allowed.
 Delegated Legislation in India

 Introduction:
According to the traditional theory, the function of the executive is to
administer the law enacted by the legislature, and in the ideal state
the legislative powers must be exercised exclusively by the
legislature who are directly responsible to the electorate. Apart from
the pure administrative function executive also performs legislative
and the judicial function also.
In England theoretically it is only parliament, which can make laws.
Even in the United States of America where the doctrine of the
delegated legislation has not been accepted in principal, in practice
the legislature has entrusted legislative powers to the executive.
Administrative legislation met with a rapid growth after World
War II and in India during 1973 to 1977.
History of Delegation of Powers
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 charter 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 Act, 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 validity of delegation
of legislative powers by the legislature to the executive in the case of
Raj Narayan Singh v. Chairman Patna Administration Committee.
Re Delhi Case: Certain Principles have been evolved
in the case:
1. Parliament and state legislature in India need to
delegate legislative power if they are to be able to face
the multitudinous problems facing the country, for it is
neither practicable nor feasible to expect that each of
the legislative bodies could turn out complete and
comprehensive legislation on all subjects sough to be
delegated upon.
2. Secondly, since the legislatures derives their powers
from the written constitution which creates them, they
could not be allowed the same freedom as the British
Parliament in the matter of delegation; some limits
should be set on their capacity to delegate
Difficulty was that judges were differed on the limits.
Harishankar Bagla V. State of M.P. AIR 1954 SC 465
 Under section 3 of Essential Supplies (Temporary Powers)Act,
1946, the Central govt. was empowered to issue an order for the
regulation of production, distribution etc. of essential
commodities. By section 6,it was provided that “an order made
under section 3 shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than the
Act.
 Both the section were challenged on the ground of excessive
delegation of legislative power. The supreme court held that the
object of section 6 was not to repeal or abrogate any existing
law, but to bye pass the same where the provision thereof
were in consistent with the provisions of the Act. The court
also held that the legislative policy was laid down in the Act and
there was no excessive delegation. Thus, very broad delegation
of power was judicially sanctioned.”
 Edward Mills Co. Ltd. V. State of Ajmer
The Schedule to the Minimum wages Act, 1948 contained
a list of industries to which the act is made applicable by
parliament, but appropriate govt. was authorized to add
any other industry the criterion thereof was not
mentioned. This delegation was upheld by the Hon’ble
Court.
Humdard Dawakhana V. Union of India
AIR 1960 SC 554
the Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 was enacted by parliament
to control advertisements of certain drugs. Section 3
laid down the list of disease for which advertisements
was prohibited. The SC held section 3 invalid as no
criteria, standards or principles had been laid down
therein, and power delegated was unguided and
uncontrolled.
PERMISSIBLE AND IMPERMISSIBLE
DELEGATED LEGISLATION
Permissible Delegated Legislations
 This type of delegations include those which Executive may exercise its
power to legislate.
 1.Supplying Details: If the legislative policy is formulated by the
legislature, the function of supplying details may be delegated to the
executive for giving effect to the policy. e.g. Section 3 of the All India
Services Act, 1951 authorizes the Central Government to make rules to
regulate conditions of service in the All India Services.
 2.Inclusion: Sometimes, the legislature passes an Act and makes it
applicable, in the first instance, to some areas and classes of persons, but
empowers the Government to extend the provisions thereof to different
territories, persons or commodities, etc. e.g., the Transfer of Property Act,
1882 was made applicable to the whole of India except certain areas, but
the Government was authorized to apply the provisions of the Act to those
areas also.
3. Exclusion: There are some statutes which empower
the Government to exempt from their operation certain
persons, territories, commodities, etc.e.g., Section 36
of the Payment of Bonus Act, 1965 empowers the
Government to exempt any establishment or a class of
establishments from the operation of the Act. Such
provision introduces flexibility in the scheme of the
legislation. The Legislature which is burdened with
heavy legislative work is unable to find time to
consider in detail hardships and difficulties likely to
result in enforcing the legislation.
3.Suspension:Some statutes authorize the Government to
suspend or relax the provisions contained therein. e.g.
under Section 48(1) of the Tea Act, 1953, the Central
Government is empowered under certain circumstances to
suspend the operation of all or any of the provisions of the
said Act.
4.Application of existing laws:Some statutes confer the
power on the executive to adopt and apply statutes existing
in other States without modifications (with incidental
changes) to a new area. There is no unconstitutional
delegation in such cases, as the legislative policy is laid
down in the statute by the competent legislature.
5.Modification: Sometimes, provision is made in the
statute authorizing the executive to modify the existing
statute before application. This is really a drastic power as
it amounts to an amendment of the Act, which is a
legislative function, but sometimes, this flexibility is
necessary to deal with local conditions.
6.Framing of Rules: A delegation of power to frame rules,
bye-laws, regulations, etc. is not unconstitutional, provided
that the rules, bye-laws and regulations are required to be
laid before the legislature before they come into force and
provided further that the legislature has power to amend,
modify or repeal them.
Impermissible Delegated Legislations
The following functions, on the other hand, cannot be delegated by the
Legislature to the Executive
 Essential Legislative Functions
Even though there is no specific bar in the Constitution of India against
the delegation of legislative power by the legislature to the executive, it is
now well-settled that essential legislative functions cannot be delegated
by the legislature to the executive. In other words, legislative policy must
be laid down by the legislature itself and by entrusting this power to the
executive, the legislature cannot create a parallel legislature.
 2.Repeal of law:
Power to repeal a law is essentially a legislative function, and therefore,
delegation of power to the executive to repeal a law is excessive
delegation and is ultra vires.
3.Modification:
Power to modify the Act in its important aspects is
an essential legislative function and, therefore,
delegation of power to modify an Act without any
limitation is not permissible.
4.Exemption:
The aforesaid principle applies in case of
exemption also, and the legislature cannot delegate
the power of exemption to the executive without
laying down the norms and policy for the guidance
of the latter.
5.Removal of difficulties:
Under the guise of enabling the executive to remove
difficulties, the legislature cannot enact a Henry VIII
clause and thereby delegate essential legislative
functions to the executive, which could not otherwise
have been delegated.
6.Retrospective operation:
The legislature has plenary power of law making and
in India, Parliament can pass any law prospectively or
retrospectively subject to the provisions of the
Constitution. But this principle cannot be applied in
the case of delegated legislation.
7.Future Acts:
The legislature can empower the executive to adopt and
apply the laws existing in other States, but it cannot
delegate the power by which the executive can adopt the
laws which may be passed in future, as this is essentially
a legislative function.
8.Imposition of Taxes:
The power to impose a tax is essentially a legislative
function. Under Article 265 of the Constitution no tax
can be levied or collected save by authority of law, and
here ‘law’ means law enacted by the competent
legislature and not made by the executive.
9.Ouster of jurisdiction of courts:
The legislature cannot empower the executive by which
the jurisdiction of courts may be ousted. This is a pure
legislative function.
10.Offences and Penalty:
The making of a particular act into an offence and
prescribing punishment for it is an essential legislative
function and cannot be delegated by the legislature to the
executive. However, if the legislature lays down the
standards or principles to be followed by the executive in
defining an offence and provides the limits of penalties,
such delegation is permissible.
 • Legislature
Constitutionality to lay down
Of Administrative Guidelines
Law Making for exercising Delegation-

The legislature while delegating such power is required to lay

down the criteria or standard so as to enable the delegatee to act
within the framework of the statute.
* Delegation to be Reasonable and Not Unlimited
Justice Mukherjea, in his opinion, stated:"It cannot be said
that an unlimited right of delegation is inherent in the
legislative power itself. This is not warranted by the provisions
of the Constitution and the legitimacy of delegation depends
entirely upon its being used as an ancillary measure which the
legislature considers to be necessary for the purpose
of exercising its legislative powers effectively and completely.
*Delegatee not to Modify the Basic Legislation
As regard delegated power to "restrict and
modify", it was held:"delegation cannot extend to
the altering in essential particulars of laws which
are already in force in the area in question." "The
power to 'restrict and modify does not import
the power to make essential changes. It is confined
to alterations of a minor character.
Unchanneled and Uncontrollable Power not
permissible under delegation
The legislature cannot delegate unchanalised and
uncontrolled power. The legislature must set the
limits of the power delegated by declaring the policy of
the law and by laying down standards for guidance of
those on whom the power to execute the law is
conferred. Thus the delegation is valid only when
the legislative policy and guidelines to implement it are
adequately laid down and the delegate is only
empowered to carry out the policy within the guidelines
laid down by the legislature.
Essential functions cannot be delegated
It was observed that it is a fundamental principle of
constitutional law that everything necessary to the
exercise of a power is included in the grant of the
power, that the Legislature cannot certainly strip itself
of its essential functions and vest the same on an
extraneous authority, and that the primary duty of law
making has to be discharged by the legislature itself
but delegation may be resorted to as a subsidiary or an
ancillary measure.
 A valid delegated legislation has the force of law. A rule,
regulation, by-law , notification or any other form of subordinate
legislation, if it is otherwise within the power of delegated
authority, has the binding effect and can be enforced as if it has
been enacted in the Act itself.

 Indian Express Newspaper v. Union of India (1985)1 SCC 641

(689) SC held that a piece of subordinate legislation does not
carry the same degree of immunity which is enjoyed by a
statute passed by a competent legislature. Subordinate legislation
may be questioned on any of the grounds on which plenary
legislation can be questioned. But in addition, it may also be
questioned on several other grounds available in the law.
After the decision of the In re Delhi Laws case, the
primary issue in all the subsequent cases has been to
determine, whether the power delegated was an
essential legislative function or not.
It includes inquiry into certain factors such as
preamble of the statute, impugned provisions,
subject matter of law, and circumstantial background
of enacting the law.
Essential legislative power means laying down the
policy of the law and enacting it in a binding rule of
conduct.
In M/S Devi Das v. State of Punjab, Section 5 of
the Punjab General Sales Tax Act, 1948, was
invalidated since an uncontrolled power was
conferred on the Provincial Government to levy
a tax on turnover of a dealer at such rates as the
said Government might direct. Under this Section,
legislature practically effaced itself in the matter of
fixation of rates and it did not give any guidance
either under that Section or under any provisions
of the Act.
 Harakchand v. Union of India, a clause in Gold Control
Act was declared invalid on the ground of excessive
delegation. The Act empowered Administrator to authorize
such person as he thinks fit to also exercise all or any
powers exercised by him under the Act and different
persons may be authorized to perform different powers.
Reviewing the various provisions of the Act, the Court
found out that the power conferred on the Administrator
is legislative in character and extremely wide and
suffered from excessive delegation of legislative power.
In Avinder Singh v. State of Punjab the founding
document of the nation has create three great
instrumentalities and entrusted with them with
certain basic functions abdication of these powers
by any organ would amount to betrayal of the
constitution itself and intolerable in law. (1979)1
SCC 137
 It has been accepted that parliament does not possess the
legislative power as an inherent and original power. That
power has been delegated to it by the constitution.
Parliament thus possess not a right that it can delegate
at its sweet will, but a competence that the constitution
obliges it to exercise itself. It cannot legally delegate its
legislative functions to executive. Such delegation would
be unconstitutional.
 In Great Britain, excessive delegation of parliamentary
powers are political concerns, in the united states and in
India they are primarily judicial.