This ppt basically covers the all aspects of delegated legislstion. it not only covers its contextual backgrounds but tries to cover its aspects in administrative law. Through this, one can be able to understand each and everything about delegated legislation. It is for the basic learners to the law students too. It identifies the principles of delegated legislation in every field and it puts more emphasis in understanding the basic law behind this concept.
1. CENTRAL UNIVERSITY OF SOUTH BIHAR
SCHOOL OF LAW AND GOVERNANCE
ADMINISTRATIVE LAW
PRESENTING
DELEGATED LEGISLATION AND IT’S
CONTROL
Under the supervision of- Dr. Pallavi Singh
Assistant Professor
School of Law and Governance
Presentation
given by- Prity Kumari
4th semester, B.A.LLB
Enrolment no- CUSB1813125068
School of Law and Governance
2. THE BEST EXECUTIVE IS THE ONE WHO HAS
SENSE ENOUGH TO PICK GOOD MEN TO DO
WHAT HE WANTS TO BE DONE, AND SELF-
RESTRAINT ENOUGH TO KEEP FROM
MEDDLING WITH THEN WHILE THEY DO IT.
- Theodore Roosevelt
3. SYNOPSIS
1. Introduction
2. Meaning of Delegated legislation
3. Nature and Scope of Delegated Legislation
4. Principle underlying Delegated legislation
5. Delegated legislation: an unfortunate necessity
6. Historical Background
7. Need of Delegated Legislation
8. Reason for growth of Delegated Legislation
9. Classification of Delegated Legislation
10. Constitutionality of Delegated Legislation- In reference with USA, England as well as India
11. Delegated Legislation under Indian Constitution
12. Control and safeguard of Delegated Legislation
13. Criticism of Delegated Legislation
14. Danger of Delegated Legislation
15. Doctorine of Excessive Delegation
16. Advantages of Delegated Legislation
17. Principles laid down in Reference case
18. General principles of Delegated Legislation
19. Conclusion
4. INTRODUCTION
In a modern welfare state, government activity has pervaded almost every field of human
behaviour, thus necessitating enactment of multifarious laws to regulate this ever-widening
activity. In such a situation, it is not practicable for Parliament or a State Legislature to deliberate
upon, discuss and approve every details of legislation, which may be necessary for proper
administration. The need therefore, to meet unforeseen contingencies, the requirement of
flexibility and, on occasions, the very technicality of subject matters make delegation by
Legislature of subsidiary or ancillary powers to subordinate authorities a practical necessity. In the
nature of things, what the legislature does, and can do, is to lay down the broad policy and
principles of a piece of legislation leaving it to the executive to frame, in conformity with those
principles, formal and procedural details of that measure in the form of statutory instruments.
Such situation where legislature confers the power on an extraneous authority other than the
sovereign power to make rules and regulations to carry out the legislative policy is regarded as
subordinate or ancillary legislation. In other words, the expression ‘subordinate legislation’ means
the act of making statutory instruments by a body subordinate to the legislature and in exercise of
the power, within specific limits, conferred by the legislature. Though Subordinate Legislation is
now universally accepted as ‘inevitable and indispensable’, it is generally agreed that the
tendency to delegate to the Executive the legislative powers is dangerous.
5. MEANING
The term ‘delegate’ is derived from Latin term delegare which means to pass power, to give responsibility or
authority to another person or body.
Delegated legislation has been defined by the Committee on Minister's powers 'as the exercise of minor
legislative power by subordinate authorities and bodies in pursuance of authority given by parliament itself.
Such delegation of legislative power has become inevitable in modern industrialised society and due to
changed concept of a Welfare State. Role of state is positive now and includes the management of entire life
of human being from “womb to tomb”.
Salmond:- “Delegated legislation as that which proceeds from any authority other than the sovereign power
and is therefore dependent for its continuous existence and validity on some superior or supreme authority.”
‘ Black’s Law Dictionary :- It is an act of entrusting a person with the power or empowering him to act on
behalf of that person who has given him that power or to act as his agent or representative.
Jain and Jain:- The term delegated legislation is used in two sense.
a) The exercise by a subordinate agency of the legislative power delegated to it by legislature, or
b) The subsidiary rules themselves which are made by the subordinate agency pursuance of the power.
Justice P.B Mukherjee also observed about delegated legislation that it was an expression which cover
multitude of confusion. He viewed it as an excuse for the Legislature, a shield for Executors and a
provocation to the Constitutional Jurist.
In P. RamanathaAiyar’s, The Law Lexicon, “delegation is the act of making or commissioning a delegate.”
6. NATURE AND SCOPE OF DELEGATED LEGISLATION
A rule-making authority delegate its legislative power only when the parent statute authorities
delegate. Sub-delegation of power of delegated legislation is justified only where the parent
statute expressly or impliedly authorizes the delegate himself to further sub-delegate that power to
anyone else. The maxim, Delegatus non-potest delegare is a well known maxim which means that
in the absence of any power a delegate cannot sub-delegate its power to another person’s. Thus
when an Act prescribes a particular body to exercise a power, it must be exercised by that body
and none else unless the Act by express words or necessary implication permits such delegation.
When a sub-delegation is made, it does not divest the authority making sub-delegation of his
statutory authority. It is not permissible unless the said power is conferred expressly or by
necessary implication and in the absence of such an express authorisation, legislative power
cannot be delegated.
A leading case in this aspect is Ganapati v. State of Ajmer. Here the parent act empowered the
chief commissioner to make rules for the establishment of a proper system of conservancy and
sanitation. The chief commissioner made a rule which empowered the district magistrate to devise
his own system. The Supreme Court held that the rule made by the district magistrate was invalid
since it was a sub-delegation without an express authority. But if the parent article authorizes to
sub delegate, then it can be validated. If the parent Act permits sub delegation to officers or
authorities not bellow a particular rank, then the power can be delegated only to those officers or
authorities. Here it may be mentioned that the authority cannot go beyond the power delegated.
7. PRINCIPLE UNDERLYING DELEGATED LEGISLATION
The basic principle in this respect is that the
delegation of power should not be uncanalised and
unguided legislative power. It should be reasonable and
not to be discretionary in anyway. Here, a statute itself
authorizes an administrative authority to delegate its
powers, no difficulty arises as to its validity since such
delegation is within the terms of the statute itself.
8. DELEGATED LEGISLATION: AN UNFORTUNATE NECESSITY
The views of traditional thinkers were not in the favour of delegation of legislative powers to the
executive. It was considered as an “evil” albeit necessary evil or an unfortunate necessity.
Wade has stated in his well-known work-
o administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but
inevitable infringement of the separation of power.
o But in reality it is no more difficult to justify it in theory that it is possible to do without it in
proactive.
o There is only a hazy borderline between legislation and administration, and the assumption that
they are two fundamentally different forms of power is misleading.
General differences are present but the clean division of power that is being made especially in
case of judicial powers is a legacy from an older era of political theory. The legislative power is
the power to lay down the laws for the people in general, where as administrative power is the
power that lays down the law for them or apply to them in some particular situations.
9. HISTORICAL BACKGROUND
The historical backdrop of the delegation of power can be followed from the Charter Act of 1833 when the East India
Company was recapturing political impact in India. It vested the administrative powers only in the hands of the Governor-
General-in Council and enabled to make laws and guidelines for revoking, correcting or modifying any laws or guidelines,
which were for all people regardless of their nationality. In 1935 the Government of India Ac, 1935 was passed. The report of
the Committee of Ministers’ Powers was submitted and affirmed which completely settled the case for assignment of forces
and appointment of enactment that was viewed as inescapable in India.
However, our Constitution depended on the separation of power; does not deny the assignment of forces. Then again there are
a few arrangements where the official had been conceded with the administrative forces. For instance, the administrative forces
of the President under the Indian Constitution are prominent. The problem of the delegation of legislation in India originated
under the British rule when the controversy on the problem in the West was in full swing.
The Constitution of India comprises of more than 400 Articles and it had not been surprised if the Constitution makers include
some solution for it. But why these provisions were incorporated in the Constitution? This is because the politicians in the
Constituent Assembly tended to multiply legal formulations. These issues were of minor importance on which legal
formulation was made in comparison to other greater constitutional issues that were by-passed by the Assembly that were left
to future accord or judicial interpretation.
In the case of Queen v. Burah, nature and extent of Legislature power and the feasibility of its delegation was considered by
the Privy Council. The Privy Council, in this case, held that Councils of Governor-General was supreme Legislature and has
ample number of powers and who are entitled to transfer certain powers to provincial executors. At the time of passing of New
Delhi Act of 1912, the Privy Council accepted the transfer of Legislature power to the Executive.
10. NEED OF DELEGATED LEGISLATION IN INDIA
Despite the ever-increasing volume of primary legislation, the complexities of governing a
sophisticated society (and even a developing society) demands the delegation of some
legislative functions to inferior bodies such as ministers and administrative agencies.
Clearly parliament does not have time or resources to enact every single piece of legislation
that is needed in the form of primary legislation, which can be fully debated and scrutinized
in accordance with legislative procedures. The result is delegated legislation- legislation
produced by an ‘inferior body’ which nevertheless has the force of law.
Tackling the complexities of modern administration in an efficient and efficient manner
demands an atmosphere of complexity. Parliament has to follow strict legislative
procedures to make a single law. Hence, it will be far from being flexible without
delegating some of its powers to the executive.
11. REASONS FOR DELEGATED LEGISLATION
The traditional theory of “laissez faire” has been given up by every state and the old “Police state” has now become a “
Welfare state”. In modern times, delegated legislation has become imperative and inevitable due to the following reasons:-
1. Time factor – The parliament is so much occupied with matters concerning foreign policy and other political issues that it has
no time to enact social legislation in all its details. Thus, the delegation is a compulsive necessity. It also gives an
advantage to the executive that a parliament with an onerous legislative time schedule may fell tempted to pass
legislation with the details to be provided by the making of rules and regulations. It formulates the general policy- the
selection and empowers the executive to fill in the details- “ thus giving flesh and blood to the skeleton so that it may
live”.
In the words of Sir Cecil Carr,‘ delegated legislation is a growing child called upon to relieve the parent of the strain of
overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on
Ministers’ powers has rightly observed: “The truth is, that if parliament were not willing to delegate law making power,
parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”
2. The technicality of the matters – With the progress of the society, things have become more complicated and technical. All the
legislators may not know them fully and, hence, they cannot make any useful discussion on it. Therefore, after framing of the
general policy by the Parliament the government departments or other bodies who know its technicalities are given the power
to lay down the details.
12. REASONS FOR DELEGATED LEGISLATION
3. Emergency – During the time of emergency quick and decisive action is very necessary, and at the same
time, is to keep it confidential. The Parliament is not at all fit to do it. Therefore, the executive is
delegated the power to make rules to deal with situations. In England, the defence of Realm Act, 1914-15,
the Emergency Powers Act, 1920 and the Emergency Powers Act, 1939-40 are examples of such
delegation during the First and Second world wars.
4. Flexibility- To adapt the law according to future contingencies or any other adjustments which are to be
made in the in future can be done efficiently and effectively only when a small body is given the powers
to do so. Otherwise amending acts will become necessary and that would cost wastage of time and
money. Therefore, delegation to the departments becomes necessary.
5. Local Matters- These are matters which concern only a particular locality or a particular group of the
profession. Any legislation on these matters needs a consultation with the people of that particular
locality, group or profession. Thus regarding such legislation, the departments are given powers to make
changes and rules in consultation with the person acquainted and with interested in it.
6. Experimentation- Some Acts of Parliament provides for their coming into operation in different localities
on different dates according to their inability, and as a matter of experiment. For this purpose, the
ministers are given the power to make orders about the date of its application.
13. CLASSIFICATION OF DELEGATED LEGISLATION
Delegated legislation in India is commonly termed as “statutory rules and orders”. This is not exhausative but appears in many
forms such as regulations, notifications, bye-laws, scheme and direction. Some of the classifications are as follows:-
(1).Title based classification:-
(a) Rule: As defined in the General Clauses Act, 1897 as a rule made in the exercise of power conferred by any enactment
and shall include a regulation made as “rule” under any enactment. It may be made applicable to a particular individual or to
public at large. It includes procedural as well as substantive rules.
(b) Regulation: It means an instrument by which decisions, orders and acts of the government are made known to the public.
But in this context, it is related to a situation where power is given to fix the date for the enforcement of the Act, or to grant
exemption from the Act, or to fix prices, etc.
(c) Order: It is used to cover various forms of legislative and quasi- judicial decisions. It may be specific or general. Here,
specific refers to administrative action while general in administrative rule-making.
(d) Bye- laws: It has been confined to rules made by semi-governmental authorities established under the acts of the
legislature.
(e) Directions: this term is used in two senses. In the first situation, the Constitution itself gives powers to central government
to give directions to state government for the execution of its laws then here, it has no application to delegated legislation. In
the other situation, it is an expression of administrative rule-making under the authority of laws or rules made thereunder. It
may be mandatory or recommendatory.
(f) Scheme: It refers to a situation where the law authorises the administrative agencies to lay down a framework within which
the detailed administrative action is to proceed.
14. CONTINUED
Discretion based classification (conditional legislation)
In Field Vs. Clark, the impugned Act authorised the President to suspend the operation of an Act, permitting free introduction into
the US of certain products, upon his finding that the duties imposed upon the products were reciprocally unequal and
unreasonable. The US Supreme Court upheld the validity on the ground that the President is mere agent of the congress to
ascertain and declare the contingency upon which the will of the congress will prevail. It further held that the Congress cannot
delegate but it can make a law to delegate the power to determine some factors or state of things upon which the law needs to be
act upon.
(a) Contingent or conditional legislation: It is a statute that provides control but become effective only when a given
administrative authorities finds the existence of conditions defined in the statute itself. In this legislation, gun and gunpowder
is provided by the legislature itself and administrative authorities has to just pull the trigger. Certain amount of discretion is
always present. It contains no element of delegated legislation and so, it is not open to attack on the ground of excessive
delegation.
(b) Subordinate legislation: It is a process consists of the discretionary elaboration of rules and regulations. In this case, some
portion of the legislative power is delegated to the outside authority, in that the legislature though competenant to perform both
the essential and ancillary power . Therefore, it is open to be attacked on the ground of excessive delegation.
Cases :- King Emperor Vs. Banori Lal Sharma, Inder Singh Vs. State of Rajasthan, Union of India Vs. Shree Gajanan Maharaj
Swami , I.T.C. Bhadrachalam Paperboards Vs. Mandal Revenue Officer.
15. CONTINUED
Nature based classification (exceptional delegation)
The Committee on Minister’s Powers distinguished two types of Parliamentary delegation:
(1) Normal delegation- (a) Positive- where the limits of delegation are clearly defined in the enabling Act.
(b) Negative- where power delegated does not include power to do certain things, i.e. Legislation on matters
of policy.
(2) Exceptional delegation- (a) power to legislate on matters of policy.
b) power to amend Acts of Parliament of existing laws
(c) power conferring such a wide discretion that it is almost impossible to know the limits.
(d) power to make rules without being challenged in a court of law.
Such exceptional delegation is also known as Henry VIII clause to individual executive autocracy. A classical
illustration of this can be found in Indian Constitution. Under Article 372(2), the President has been
delegated the power to adapt, amend and repeal any law in force to bring it in line with the provisions of the
constitution and the exercise of such power is immune from the scruitny of courts. It has been held to be
ultra vires the constitution.
Authority based classification- a statute may also be empowered to further delegate powers conferred on
it to its subordinate authorities by the executive and this is termed as “ Sub delegation”.
s
16. CONSTITUTIONALITY OF DELEGATED LEGISLATION
For understanding the constitutionality of this, two things are necessary to know
1. Separation of Power and
2. “Delegatus non potest delegare”.
Position in the USA:
Since Congress was itself a delegate, how can it delegate its power. The framers of the American Constitution
were imbued with the political theories propagated by John Locke and Montesquieu. John Locke has said: "The
legislature cannot transfer the power of making laws to any other hands: for it being but a delegated power
from the people, they who have it cannot pass it over to other.”
"Montesquieu had developed this doctrine of separation of powers.”
The framers of the American Constitution adopted the doctrine in its full force as seen in the
provisions of the US Constitution:
Art. 1, section1. All legislative powers herein granted shall be vested in the Congress of the United States,
which shall consist of a Senate and House of Representatives.
Art. 2, section 1. The executive power shall be vested in a President of the United States of America.
Art. 3, section 1. The judicial power shall be vested in Supreme Court and in such inferior courts as the
Congress many, from time to time, ordain and establish.
Alongside this doctrine of separation of powers the American constitutional law had another doctrine which
also negatived the delegation of power. Sutherland has stated "incident to the separation-of-powers doctrine
was the corollary that legislative power could not be exercised by any agency of the government save the
legislature."
"The rule against the delegation of legislative powers, if there is such a rule, is broader than any doctrine of
separation of powers. That part of its which forbids the delegation of powers to other branches or the
government comes within the doctrine of separation of powers. That part of it which forbids the delegation of
powers to independent boards or commissions rests upon the maxim “delegata potestas non potest delegare."
Therefore the powers thus delegated are not legislative powers but are administrative or quasi-legislative
powers.
17. CONSTITUTIONALITY OF DELEGATED LEGISLATION
Position in England: In England the Parliament is Supreme, unhampered by any constitutional
limitations with wide legislative powers on the executive. Parliament being supreme and it power
to legislate being unlimited, there is nothing to prevent Parliament from delegating its legislative
power to the executive officers or other subordinate bodies. Sir Cecil Carr in this "Delegated
Legislation" quoted in the Report of the Committee on Ministers' Powers, usually referred to as
the Donoughmore Committee, said : "The first and by the far smallest part is made by the Crown
under what survives of the prerogative.
The second and weightiest part is made by the King in Parliament and consists of what we call
Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King in
Parliament entrusts with legislative power." As observed by Sir Cecil Carr, "the truth is that if
Parliament were not willing to delegate law-making power, Parliament would be unable to pass
the kind and quantity of legislation which modern public opinion requires." In England, the
practice of delegating legislative power has certainly been facilitated by the close fusion of the
legislative and executive power resulting from the development the cabinet system of government
in England.
18. CONTINUED
Position in India
Pre Independence: Queen v. Burah wherein the Privy Council had validated only Conditional Legislation and
therefore as per its reasoning delegated legislation is not permitted. The administration of civil and criminal
justice within the said territory was vested in such officers as the Lieutenant-Governor may from time to time
appoint. Sections 8 and 9 of the said Act provided as follows: - "Section 8 says that Lieutenant-Governor may
from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of
any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the
Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may
on making such extension direct by whom any powers of duties incident to the provisions so extended shall be
exercised or performed, and make any order which he shall deem requisite for carrying such provisions into
operation.“
"Section 9 says that Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend
mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the
Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India. It was held that
Indian legislators have plenary powers and it exercised the power in its own right and not as an agent or a delegate
of the British parliament.
19. CONTINUED
The Privy Council laid down that “seeking of assistance of a subordinate agency in the framing of rules and
regulations which are to become a part of the law and conferring on another body the essential legislative
functions which under the constitution should be exercised by the legislature itself. It also stated that the essential
legislative function consists in the determination or choosing of the legislative policy and formally enacting that
policy into binding rule of conduct.
Also in King v. Benoari Lal Sharma Conditional legislation was again applied by the privy council wherein the
validity of an emergency ordinance by the Governor-General of India was challenged inter alia on the ground that
it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the
courts was left to the Provincial Governments which were authorised to set them up at such time and place as they
considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an
example of the not uncommon legislative power by which the local application of the provisions of a statute is
determined by the judgment of a local administrative body as to its necessity." The privy council held that “Local
application of the provision of a state is determined by the judgment of a local administrative body as to its
necessity.”
Also the Federal Court in Jatindra Nath v State of Bihar AIR 1949 FC 175held that power of extension with
modification is unconstitutional as legislative power cannot be delegated. Wherein the S. 1 (3) of Bihar
maintenance of public order Act, 1948 was challenged – as it gave power of extension of modification to
provincial Govt. but this case But created doubts on the limits of delegation.
20. CONTINUED
Post – Independence: The Delhi Laws Act, 1912, power given to the Government to extend to Delhi and
Ajmer-Marwar was held intra vires- The case also discussed the validity of the law empowering the
Government to extend to part C States any law in force in a part A state and to repeal existing laws-was held
ultra vires under article 143 of the Constitution asking the Court's opinion on the three questions submitted
for its consideration and report. Section 2 of the Part C States (Laws) Act, 1950, says :- The Central
Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the
Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it
thinks fit, any enactment which is in force in a part A State at the date of the notification and provision may
be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a
Central Act) which is for the time being applicable to that Part C State.
The three sections referred to in the three questions are all in respect of the delegation of legislative power
and the three particular Acts are selected to raise the question in respect of the three main stages in the
constitutional development of India. The first covers the legislative powers of the Indian Legislature during
the period prior to the Government of India Act, 1915. The second is in respect of its legislative power after
the Government of India Act, 1935, as amended by the Indian Independence Act of 1947. The last is in respect
of the power of the Indian Parliament under the present Constitution of 1950. As regards constitution of the
delegation of legislative powers the Indian Legislature cannot be in the same position as the prominent
British Parliament. It cannot be said that an unlimited right of delegation is inherent in the legislature 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.
The legislature must retain in its own hands the essential legislative functions which consist in declaring the
legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be
delegated in the task of subordinate legislation which by its very nature is ancillary to the statute which
delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a
standard laid down the courts cannot and should not interfere with the discretion that undoubtedly rests with
the legislature itself in determining the extent of delegation necessary in a particular case. These, in my
opinion, are the limits within which delegated legislation is to legislate on the particular subject-matter.
21. CONTINUED
In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954
SC 569in which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local
administration to extend to Patna the provisions of any sections of the act ( Bengal
Municipality Act, 1884) subject to such modification, as it might think fit. The
government picked up section 104 and after modifications applied it to the town of
Patna. One of the essential features of the Act was the provision that no municipality
competent to tax could be thrust upon a locality without giving its inhabitants a
chance of being heard and of being given as opportunity to object. The sections which
provided for an opportunity to object were excluded from the notification. It was held
as amounting to tamper with the policy of the Act.
In Lachmi Narain v. UOI (1976 2) SCC 95where the validity of Section 2 of Union
Territories (Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941
was to be determined. The issue was that whether notification issued by Central
Government in purported exercise of its powers under Section 2 ultra vires of
Central Government.
22. DELEGATED LEGISLATION 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 , K.N. Wanchoo J. 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 Article312…." 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. 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- 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.
23. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
Parliamentary Control
It empowers parliament to confer on anyone its power of legislation, but at the same time, it has to
see that the power should not be abused. In case of it’s misuse, power should be taken away.
In Avinder Singh v. State of Punjab, Krishna Iyer J. appropriately expressed that parliamentary
authority over designated enactment should be a living continuity as a protected need. The
authoritative command over the organization in parliamentary nations like India is more
hypothetical than practical. In truth, the control of the Parliament is not that much effective as it
needs to be.
Jain and Jain stated about the control of the legislature over the delegated legislation that “It is the
function of the legislature to legislate in a parliamentary democracy. If it seeks to delegate its
legislative powers to the government due to a few motives, it is not the right of the legislature, but
additionally its duty, as predominant, to look how its agent i.e. the executive carries out or
maintain the company entrusted to it.” Since it is the legislature which delegates legislative power
to the executive, so it is its primary duty to check whether the entrusted the power is working
properly or not and also it has power to supervise and control the actual exercise of this power.
In the U.S.A., the government is not responsible to the Legislature and Congressional control of
delegated regulation is in most cases indirect. However, the Congress can also direct
administrative groups to put up the periodical and unique reports or to give an account of their
activities. Congress has no effective control over delegated regulation due to the fact the President
of the USA is not accountable to the Legislature.
24. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
However, in India, there is a Parliamentary form of Government and the Prime Minister is accountable to the
Legislature. Parliament can exercise direct control over the Government. The principal characteristic of each
committee is to scrutinize the statutory regulations, to make legal guidelines for the public, etc. made with the aid
of any administrative frame and reports to the residence whether or not the delegated power has been exercised
nicely within the limits provided underneath the Parent Act or the Constitution.
The primary concern is to keep concord between Legislature and Executive in a democratic society and also there
needs to be a powerful system of management of the Legislature over the Executive so that government cannot
misuse their powers while making delegated rules. The following factors are responsible for the ineffectiveness of
parliamentary control over delegated legislation in India:
(i) The Parliament has neither time nor expertise to control the administration which has grown in volume as
well as complexity.
(ii) The legislative leadership lies with the executive and plays a significant role in formulation of policies.
(iii) The very size of the Parliament is too large and unmanageable to be as effective as it ought to be.
(iv)The majority support enjoyed by the executive in the Parliament reduces the possibility of effective
criticism.
25. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
(v) The growth of delegated legislation reduced the role of Parliament in making detailed laws and
increased the powers of bureaucracy.
(vi)Parliament’s control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament has also contributed to the ineffectiveness
of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a whole;
and the quantity and complexity are such that it is no longer possible to rely on such scrutiny. Parliament
has the inherent right to see that the powers delegated by it to make rules, sub-rules, regulations, bye-
laws, etc., have been exercised in harmony with the terms of the statute delegating such powers and also
that they are in accordance with the general principles of delegation. It has also the right to see that rule-
making powers conferred by the Constitution, which are essentially of a legislative character, are properly
exercised by the Executive. Parliamentary Control over Subordinate Legislation is exercisable in several
ways.
First, the present statutes often require that the rules, regulations, orders, etc., made by the subordinate
authorities be laid before Parliament. Second, there are other methods of control which may be resorted to
by the members of the Legislature themselves. These methods, inter alia , include (i) questions to a
Minister at any time and on any subject, (ii) motion of censure to be moved on the Minister-in-charge of
implementation of any statute, and (iii) debate on a subject relating to subordinate legislation. These
devices, however, do not always function satisfactorily and, therefore, need to be supplemented by special
committees in the legislative bodies to watch over the exercise of delegated legislation and to report
accordingly
26. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
Kruse v. Johnson
Facts: In this case, under the authority of the Local Government Act 1888, the Kent County Council made
a by-laws. This law states that nobody could play music or sing a song within 50 yards of dwelling house
in public place or highway after being requested to stop by a constable. The claimant was singing a hymn
within 50 yards of the dwelling house and had refused to stop after the constable had told him to do so.
He was given a penalty. He sought for judicial review to declare that the by-law was void.
Judgment: Lord Russell CJ, giving the courts leading judgment, held the by-law became valid on the
ground that it becomes no longer unreasonable, due to the fact that it does not have a discriminatory
impact on the population.
Chintaman Rao Case
Facts: Section 3 and 4 of the Central Province and Berar Regulation of Manufacture of Beedis Act, 1948
grants power to the Deputy Commissioner to fix the period of agriculture season with respect to a certain
village where the Act applies. The Deputy Commissioner has the power to prohibit the manufacturing of
bidis and no person is authorized to manufacture bidis.
On 13th June 1950, an order was issued via the Deputy Commissioner of Sagar prohibiting the certain
villagers to manufacture bidis. When the case is dealt by the Hon’ble Supreme Court, the period cited
within the order expired and another order covering the agricultural period from 8th October 1950 to 18th
November 1950 was issued and the same order was questioned in the present case. Does the question
arise whether the impugned Act is falling within the saving clause or excess of its provisions?
Judgment: It has been held in this case that prohibition of making bidis in the agriculture season by the
Deputy Commissioner is violative of Article 19 1(g) of the Indian Constitution.
27. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
Judicial Control
To some extent, judicial control is also exercised over the delegated legislation. In England, as the
parliament is supreme, it can delegate any amount of power. Therefore, the judicial control is confined
within very narrow limits. The courts in these matters interfere under the doctrine of ultra vires or under their
writ jurisdiction. The main ground on which this interference is made is that the authority to whom the
power is delegated has exceeded it. No delegated legislation can survive clashing with the provisions
granting Fundamental Rights. If any Acts violate the fundamental rights then the rules, regulations, and by-
laws framed under it cannot survive.
In India as well as in America the judicial control over the delegated legislation is based on the doctrine of
ultra vires. Also, there are various methods through which judiciary in America exercises control over
delegated legislation.
The two main approaches taken by the judiciary in America for justifying the delegation of legislative power
to the executive are: Filling up the details approach and Intelligible principle approach.
In the first approach, the Congress should lay down the standard policy for the guidance of executive and
the executives have to fill the further details and carry out the policy of legislation according to the standard
laid down by the Congress.
28. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
In the second approach, the court will review the delegated legislation if ultra vires the enabling
statutes or it is not in accordance with the provisions mentioned in enabling statutes.
The delegated legislation can be challenged in India in the courts of law as being unconstitutional,
excessive and arbitrary. It can be controlled by the Judiciary on two grounds i.e., firstly, it should be
on the ground of substantial ultra vires and secondly, it should be on the ground of procedural ultra
vires. The criteria on which the law made by the executive can be considered as void and null by the
court is that it should not be considered inconsistent by the constitution or ultra vires the parent act
from which it has got the power of making law. The power of examining the delegated legislation in
India has been given to the Supreme Court and the High Court and they play an active role in
controlling the delegated legislation.
Judicial control over delegated legislative is exercise at the following two levels:
(a)Challenging the delegation as unconstitutional
(b)Improperly exercise of Statutory power.
The grounds on which courts declare bye-law ultra vires are that it is unreasonable or repugnant to the
fundamental laws of the country, or is vague, or it has not been made and published in accordance
with the rules prescribed for the same. But in modern times, there is a tendency to oust the
jurisdiction for the court and this is expressly provided in the statute which delegates the power. Thus
the courts to have not remained very much effective in controlling delegated legislation.
29. CONTROL AND SAFEGUARD AGAINST DELEGATED LEGISLATION
Cases that illustrate the Judicial control over the executives
Kruse v. Johnson: The court laid down in the case that by-laws would be
unreasonable on the following ground:- (a)It should not be partial or unequal (b) not
to be manifestly unjust(c) not to disclose bad faith(d)not to involve oppressive
interference with the right of the people that it could find no justification in the mind
of the reasonable person.
Delhi Law Act Case: In this case the power is given to the Central Government
through an act to repeal the pre-existing law held to be ultra vires.
Chintaman Rao’s Case:Prohibition of making bidis in the agriculture season by the
Deputy Commissioner is violative of Article 19(1)(g) of the Indian Constitution.
Chandran v. R: It was held in this case that if the power of by-laws entrusted in the
hands of the Legislature, then it must be within the limits of the Legislature and if it
exceeds the limit then this by-laws can be struck down.
30. LEGISLATIVE CONTROL OF DELEGATED LEGISLATION
In the context of increasing complexity of law-making, subordinate legislation has become an important
constituent element of legislation, it is equally important to see how this process of legislation by the executive
under delegated powers, can be reconciled with .the democratic principles or parliamentary control. 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 (policy) b) Power is amend Act of
parliament (In re Delhi laws Acts ).
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.
Similar position was held by the court 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 apter 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.
31. CRITICISM ON DELEGATED LEGISLATION
Following are the criticism of delegated legislation:
Delegated legislation results in overlapping of functioning as the delegated authorities get work to amend
the legislation that is the function of the legislators.
It has been a matter of question that if the Legislature control has come down after the arrival of the
delegated legislation.
Unelected people cannot make much delegated legislation as it would be against the spirit of democracy.
After getting too much power from the Legislature, the Executive has encroached upon the domain of
legislature by making rules and regulations.
The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment.
Parliament, along these lines, has an absence of authority over appointed enactment, and this can prompt
irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners which
Parliament had not foreseen when it was given the power through the Act of Parliament.
Delegated legislation makes laws without much discussion. So, it may or may not be better for the public.
In the system of subordinate legislation, the officials in their zeal to achieve a particular objective which may
impose an undesirable burden on citizens by requiring them to comply with various conditions and
formalities which might be restrictive of individual rights and freedom.
32. CRITICISM ON DELEGATED LEGISLATION
Designated legislation by and large experiences an absence of exposure. Since the law made by a
statutory authority not informed to general society. Then again, the laws of the Parliament are generally
broadcasted. The purpose of the absence of exposure is the enormous degree of enactment that is being
assigned. There has likewise been concern communicated that an excess of law is made through
appointed enactment.
It can possibly be misused for political gain. The executive makes law according to what the political
parties. Hence, it results in the misuse of the legislation made by the Executive by the ruling party.
Executives become too powerful as it already has the power of executing any laws and legislation and
now the Legislature is delegating its legislative power to the Executive. So, both the power are in the
hands of the executives now he can use this power in whatever way he wants to use it.
It is against the theory of the power of separation which has been given by the famous political thinker
Montesquieu.
In England when a bill that provides for the delegation of power is before the house, the house may
modify, amend or refuse altogether the power proposed to be delegated in the bill. The Government has
set up a Select Committee on statutory instrument since 1944 to examine every instrument laid down
before the house of commons with a view to determining whether the special attention of the house
should be drawn to it certain specified grounds.
An act was also passed in 1946, i.e. ‘Statutory instrument act which provides that copy of the Instrument
shall be laid before the house before it comes into operation. Apart from these, there are other methods
also through which the parliament can exercise control. It is submitted that in practice these safeguards
have not proved much effective and thus, substantial control is not exercised.
33. DANGER OF DELEGATED LEGISLATION
Prof. Keith has, in great detail, described the dangers of the delegated legislation. Some important
ones are:-
(1) Legislation may be passed in a skeleton form and thus wide powers of action to make new laws
and to impose the tax is given;
(2)Parliament gets inadequate time to scrutinize the regulations;
(3)Some of the regulations attempt to deprive the subjects of recourse to the law courts for
protection;
(4)The procedural advantages of the Crown against the subject (Crown Proceedings Act, 1947) has
improved the position to some extent but renders it difficult for him to obtain redress for illegal
actions done under the authority of delegated legislation.
Keeton has summarized the dangers under two heads:
(a)Excessive power may be delegated.
(b)The Governments Department may assume a wider legislative competence than what the
Parliament has granted.
34. DOCTORINE OF EXCESSIVE DELEGATION
The doctrine of excessive delegation is applied by the courts to adjudge the validity of the provision delegating
the power. Therefore, too broad power ought not to be vested in the Executive in matters of taxation; the parent
Act ought to contain policy in the light of which the Executive is to exercise the power delegated to it. The courts
uphold delegation of power to decide "matters of details" in a truth, is really a euphemism to cover delegation of
significant powers to the Executive in the tax area, e.g.: “The delegated authority must only implement stated
policy, but if there is abdication of legislative power by transferring policy formulation role to the delegate, then
there is excessive delegation, which will be invalidated by the court.” The few instances in which the delegation
was questioned on the ground of being excessive, as In Orient Weaving Mills v. Union of India, when it comes to
delegated the power to the Government to exempt a commodity from the purview of tax; a provision conferring
power of the Central Government to exempt any excisable goods from the whole or part of the duty leviable on
such goods was held valid against the plea of excessive delegation.
In Banarasi Das v. State of Madhya Pradesh, when it comes to confer the power to the Government to bring
additional transactions, commodities or persons within the purview of a tax; a provision authorizing the
Government to bring any goods within the purview of sales tax law was held valid.
In Bimal Chandra Barterjee v. State of M.P, the Supreme Court while considering the provisions of M.P. Excise
Act, held that section 25, 26, and 62 of the M.P. Excise Act do not empower the Government to levy tax on
excisable articles. Therefore it was held that, no tax can be imposed by any byelaw, rule or regulation unless the
Statute under which subordinate legislation is made specially authorizes the imposition.
On the contrary, in Sitaram Bishamber Dayal v. State of Uttar Pradesh, the power to impose sales tax at a rate not
exceeding 5% was not regarded irregular by the Supreme Court as the rate prescribed was a reasonable upper
limit.
35. ADVANTAGES OF DELEGATED LEGISLATION
There are many advantages of delegated legislation as it is essential for a democratic country to flourish or
make laws according to its public. These advantages are as follows:
Reduce the workload of Parliament: The Parliament has to pass several legislation within a short span of its
life. If the Parliament devotes its time in laying down minor and subsidiary detail of each and every
legislation by making all the rules required for that legislation then it will take too much time and in that time
it can only deal with a small amount of Act in detail. It is lengthy, time consuming process and also it is
expensive to operate Parliament process. It cannot cope up with the growing needs of legislation. It saves
ample amount of time of the Parliament because it gives the members a chance to create or to make rapid
changes in small items.
Technical Expertise: Today’s world has become very technical and complicated by the introduction of
modern means and advancement in technology. So it is necessary for the members of parliament to know
each and every field but one cannot be the master of all fields. Therefore, it is difficult for the members of
Parliament to have all knowledge needed for making laws in various fields like on controlling technology,
ensuring environmental safety, dealing with various industrial problems etc. Also, Parliament is not a forum
which can make laws on administrative and technical details but it is more concerned with social issues and
the rule of law. Therefore, it is thought that it is better for the parliament to debate on the broad topic or the
main topic and leave the rest detail for the fulfilment by the expert of that particular field. Thus, delegates
authorities with extra skills, experience, and knowledge are more suitable for making law.
Enables flexibility: In delegated legislation, Parliament makes law in broader skeletal form and the executive
had to fill the minor details. So these minor details can be changed immediately without making any
amendment in the Parliament. Therefore, it is flexible and the legislation made by this can be best for the
needs of modern public.
36. CONTINUED
Decentralized decision making: The local councils are more suited to make laws for their constituencies as they
are more familiar with the problems and can make better laws for their area that a Parliament cannot do so. It is
very essential to know a person for whom we are making laws. The Parliament makes the laws for broad principle
while its delegate handles the local principle. This separation of power helps in the smooth running of the
legislature.
Emergencies: In case of an emergency, rapid action should be taken but Parliament take too much time in taking
any decision. It has to call for a session then the Parliamentarian discusses the emergency topic. And after that, if
they all conclude then only that act would have passed. In some cases, the Parliament have not enough time to
accurately make a piece of legislation and a quick and safety legislation is required for the safety of a nation. For
example, in the UK, the Prevention of Terrorism Act was created as delegated legislation and now this act has
added a new prohibited group to the terrorism. Therefore, it is more appropriate for the delegate authorities to
make legislation and deal with it.
Seeing the interest of affected person: To make legislation effective it is important to know the need and interest
of that person who is going to be affected by that law or legislation. Only sitting in big houses and making a
decision for the affected person is easy but knowing their interests and their needs by living with them in the same
condition in which they are living is tough and then making law for them will surely benefitted them. Therefore, it
is necessary to delegate the rights of legislation by the Parliament to the Executive. The Executive knows the
condition of the affected person better than the Legislature.
Experimental basis: It can be used as an experimental basis. It allows in quick lawmaking. If a law made for some
circumstances and it does not fulfil the condition for which it has made then it can be changed and a new law can
be made at the place of the older one. And if this law gets fitted according to the situation then this law will
prevail in that area. In this way, it is an advantage in the view of modern public.
37. PRINCIPLES LAID DOWN IN THE REFERENCE CASE
In Re Delhi Laws Act may be said to be “Siddhantwali” i.e. Principles as regards
constitutionality of delegated legislation. In present case, on the one hand, it
permitted delegation of legislative powers by the legislature to the executive, while
on the other hand, it demarcated the extent of such permissible delegation of power
by the legislature. In this case it was propounded:
1. Parliament cannot abdicate or efface itself by creating a parallel legislative body.
2. Power of delegation is ancillary to the power of legislation.
3. The limitation upon delegation of legislative power is that the legislature cannot part
with its essential legislative power that has been expressly vested in it by the
constitution. Essential legislative power means laying down policy of laws and
enacting that policy into a binding rule of conduct.
4. Power to repeal is legislative and it cannot be delegated.
The theme of Re Delhi Laws Act case is that essential legislative function cannot be
delegated whereas non-essential can be delegated.
38. GENERAL PRINCIPLES
From various judgements of the Supreme Court, the following general principles regarding this emerge:-
The constitution confers a power and imposes a duty on the legislature to make laws and the said function cannot be
delegated to the executive or even to any administrative agency. It can neither create a parallel legislature nor destroy its
legislative power.
The legislature must retain in its own hands the essential legislative function. These function consists of the determination of
the legislative policy and its formulation as a binding rule of conduct.
Once the legislature lays down the policy it can delegate to the executive authority ancillary and subordinate powers
necessary for carrying out the policy and purpose of the Act as maybe necessary to make the legislation effective, useful and
complete.
The legislative policy may be express or implied. It may be gathered from the history, Preamble, title, scheme, statement of
objects and reasons, etc.
The authority to which delegation is made is one of the factors in determining the validity of such delegation. However,
delegation can’t be upheld merely on the basis of status, character or dignity of the delegate.
Safeguards against the abuse of delegated power including power to repeal do not make delegation valid if otherwise it is
excessive, impermissible or unwarranted.
The delegated legislation must be consistent with the parent Act and cannot travel beyond the legislative policy and standard
laid down by the legislature.
It is the duty of the court to struck down without hesitation any arbitrary power conferred on the executive by the legislature.
These principles apply to all forms of delegated legislation; such as
(a) Conditional legislation (b) Subordinate legislation (c) Supplementary legislation (d) Sub-delegation.
39. CONCLUSION
Delegated legislation means rules of law made under the authority of an Act of Parliament. Although law
making is the function of legislature, it may, by a statute, delegate its power to other bodies or persons. The
statute which delegates such power is known as Enabling Act. By Enabling Act the legislature, lays down the
broad guidelines and detailed rules are enacted by the delegated authority. It is permitted by the Indian
Constitution. It exists in form of bye rules, regulations, orders, bye laws etc. Quick, effective and
confidential decisions are not possible in body of legislatives. So, executives are delegated with power to
make rules to deal with such situations. These are the main factors, besides many others, for the fast increase
in delegated legislation today.
Justice P B Mukerjee has stated “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 jurists. It is praised as a necessity and felt as inevitable in our world where social economic
technological psychological and administrative speed outstrips the spacious and placid traditional legislative
ideals and processes. It is criticized as an abdication of power by legislators and an escape from the duty
imposed on them by voters of democracy. In England the king lost the legislative power at Runnymede and
parliament lost legislative at stampede that followed since to provide the government for the country through
administration and bureaucracy”
If in India the control of Parliament over the delegated legislation has to be made a living continuity, then it is
important that the job of the advisory groups of the Parliament must be fortified and a different law like the
Statutory Instruments Act, accommodating uniform standards of laying and production, must be passed. In
spite of the fact that there are no express arrangements in the Constitution to allow the appointment of
authoritative power, the legal pattern saw in regard of assigned enactment is as per the aim of the
Constitution maker’s principal concern was towards the flexibility of the Constitution with changing needs of
the time. To prevent the misuse of this power, it is vital to adopt powerful modes of control as applicable in
the USA which India has now not integrated yet. The Parliamentary control over delegated legislation in
USA and India is not as effective as in UK. In India the control is not very much effective. There are no
statutory provisions regarding ‘laying’ of delegated legislation. Though the working of the Scrutiny
committees is not very effective, yet they have proved to be an effective body in examining and improving
upon the legislative control over delegated legislation.
