Module 2

I. What do you mean by Delegated Legislation? Explain the

Safeguards on delegated legislation with the help of appropriate
examples. – 15 Marks

I. Introduction, meaning and definition.

There is no precise definition of the expression delegated legislation. It is equally difficult to
state with certainty the scope of such delegated legislation. Bulk of the legislation now is
promulgated by the executive in the form of delegated legislation. The parliament is to
adequately lay down policy and delegate the power to carry out policy within the guidelines
laid down by the legislation.
According to the M P Jain and S N Jain, the term “Delegated legislation” is used in two
senses:
(1) exercise by the subordinate agency of the legislative power delegated to it by the
legislature, or
(2) the subordinate rules themselves which are made by the subordinate agency in pursuance
of the power conferred on it by the legislature.
In its 1st application, it means that the authority exercising the legislative power is
subordinate to the Legislature’s legislative powers and is exercised by an authority other than
the Legislature’s exercise of the powers which rather gets delegated or conferred on them by
the legislature itself. This is known as ‘subordinate legislation’ because the power of the
authority is limited by the statute which conferred such powers and consequently it is valid
only insofar as it keeps within those limits.
2 nd connotation the “Delegated legislation” means and includes all rules, regulations, bye-
laws, orders, etc.
In simple words or meaning the expression “Delegated legislation” may be given as when the
function of legislation is entrusted to two organs other than the Legislature itself, the
legislation made by such organs is called, delegated legislation.
Thus, delegated legislation is made by the body or person other than the Parliament by virtue
of powers conferred by the Parliament under any statute. The statute enacted by the
legislature conferring the legislative power upon the executive is known as the ‘Parent Act’ or
the primary law, and the rules, regulation, bye-laws, orders, etc. made by the executive in
pursuance of the legislative powers conferred by the legislature are known as ‘Subordinate
Laws’.
II. Control Mechanisms for Delegated Legislation
To ensure that delegated legislation does not exceed the powers conferred by the parent
statute, both Parliament and the Judiciary play significant roles in overseeing its operation.
Controls of Delegated legislation can be divided into 3 categories:
 1. Parliamentary Control
2. Executive Control
3. Judicial Control
Parliamentary Control of Delegated Legislation
In a democracy, it is the function of the legislature to legislate, but if it wants to delegate the
power to the executive under certain circumstances, it is not only the right but the duty of the
legislature to see how its agent (i.e.) Executive is working.
There are 2 stages in Parliamentary Control:
(a) Initial Stage
In the first stage, the legislature decides how much power is to be delegated to complete a
task, and it is also checked that delegation of power is valid or not.
(b) Direct and Indirect Control
In the second stage, there are two things: (i) Direct Control & (ii) Indirect Control.
(i) Direct Control
Under this laying is a very important aspect. It basically means to place the rules made before
the parliament. Laying is further divided into 3 categories:
 Simple Laying
In this type of laying, the rules come into effect as soon as they are placed before the
parliament.
 Negative Laying
In this type of laying, the rules come into effect as soon as they are placed before the
parliament but cease to have effect if they are rejected by the parliament within 40 days.
 Affirmative Laying
In this type of laying, the rules have no effect until they are approved by a resolution of both
the houses of parliament.
(ii) Indirect Control
The parliament exercises this control through its committees. They are known as Lok Sabha
committee and Rajya Sabha committee. The Lok Sabha committee consists of 15 members
who are appointed by the Speaker of Lok Sabha for one year. The Rajya Sabha committee
consists of 15 members who are appointed by the chairman of Rajya Sabha & the committee
remains in force till the new committee is formed.
The main function of the committee is to see:
1. Whether the rules are made in accordance with the general object of act.
2. Whether it is retrospective in nature.
 3. Whether it involves expenditure from the consolidated fund of India etc.
Procedural or Executive Control of Delegated Legislation
Executive legislating under delegated legislation is not required to follow rigid procedure
until the legislature makes it compulsory for the executive to follow the certain procedure.
This is because following a rigid procedure will be time consuming and it defeats the purpose
of delegated legislation. If the executive does not follow the procedure laid down by the
legislature, then the rules made by the executive will become invalid. The following are the
components of procedural control:
(i) Pre publication and consultation with expert authority
According to Section 23 of General Clause Act, 1897 it is mandatory that the rules made
should be published in draft form in the Gazette of India. Objections and suggestions should
be invited from the public and the objections and suggestions received should be considered
by rule making authority.
(ii) Publication of delegated legislation
There is a well-known principle of law (i.e.) “ignorantia juris non excusat” (ignorance of law
is not an excuse) but there is another equally important principle of law that the public should
have access to the law of the land. It is very important that necessary steps are taken to
publish the rules so that people know the rules.
(iii) Laying of rules
It basically means to place the rules made before the parliament. Laying is further divided
into 3 categories:
 Simple Laying
In this type of laying, the rules come into effect as soon as they are placed before the
parliament.
 Negative Laying
In this type of laying, the rules come into effect as soon as they are placed before the
parliament but cease to have effect if they are rejected by the parliament within 40 days.
 Affirmative Laying
In this type of laying, the rules have no effect until they are approved by a resolution of both
the houses of parliament.
Judicial Control of Delegated Legislation
Judicial review is one of the tools which is used by the judiciary to exercise control over
delegated legislation. The courts have the power to see whether the power delegated is within
the scope of the constitution. It can strike down the legislation if it finds it as arbitrary,
unreasonable or unconstitutional. It has 2 components:
(i) Delegated legislation is ultra vires to the Constitution of India
 There can be situations where parent act is in accordance with the Constitution of India but
delegated legislation makes it ultra vires to the Constitution of India and violates its
provisions.
(ii) Delegated legislation is ultra vires to the enabling act
There can be situations when the delegated legislation framed under the parent act is in
excess power and the extent is not authorized by the parent act or the rules so framed are
opposing the parent act.

II. What is delegated legislation? Explain the reasons for its growth
and its constitutionality in India. – 15 Marks
REASONS FOR THE GROWTH OF THE DELEGATED LEGISLATION
Many factors are responsible for the rapid growth of delegated legislation in every modern
democratic State. The traditional theory of ‘laissez-faire’ has been given up by every State
and the old ‘police State’ has now become a ‘welfare State.’ Because of this radical change in
the philosophy as to the role to be played by the State, its functions have increased.
1. Pressure upon Parliamentary Time
Due to the increasing responsibilities of the government, a lot of laws need to be made. The
Parliament has limited time and cannot discuss and pass every law in detail. Even if the
Parliament worked every single day and all hours, it would still be difficult to create detailed
laws for everything. That’s why the Parliament makes only the basic structure or general
policy of a law, and gives the power to the Executive to add the detailed rules, regulations, or
bye-laws. This helps the government work more smoothly and quickly.
2. Technicality
Some subjects on which laws need to be made are very technical and complicated. Since
members of Parliament are mostly general representatives of the people and not experts in
science, medicine, energy, or technology, they may not fully understand such subjects. In
such cases, experts are needed to make detailed and practical rules. For example, areas like
atomic energy, drugs, electricity, and gas require people with specialised knowledge. So, law-
making power is given to experts through delegated legislation.
3. Flexibility
While making a law, it is not always possible to guess all the future problems that may come
up. Sometimes new or sudden situations arise that need immediate action. Changing a law
through Parliament is a long and slow process, but delegated legislation allows the Executive
to respond to such situations quickly and effectively. For example, changes in the bank rate,
police rules, import and export control, or foreign exchange policy can be made easily under
delegated powers. For this purpose, many laws include a ‘removal of difficulty’ clause, which
allows the Executive to fix unexpected problems using delegated power.
4. Experiment
Delegated legislation also gives the Executive a chance to try out new rules and check if they
work well. If a rule doesn’t work properly or causes problems, it can be changed easily. This
trial-and-error method helps make better laws that match the needs of the people. It also
makes sure that the laws are tested and improved based on real-life results and ground-level
feedback.
5. Emergency
During emergencies like war, natural disasters, public health crises, or a breakdown of law
and order, the government has to act very fast. The regular law-making process through
Parliament is too slow for such situations. That is why in emergencies, the Executive is given
special powers to make rules and decisions quickly. For example, during the two World Wars
and recent emergencies like pandemics or inflation, there was a significant increase in
delegated legislation. This is because fast decisions were necessary to protect the public and
maintain order.
6. Complexity of Modern Administration
Modern governments now play a major role in managing the economy, controlling trade,
protecting the environment, and improving social welfare. Because of this, the work of the
government has become very complex and detailed. It is not always possible for Parliament
to make all the necessary rules and regulations by itself. Also, some powerful interest groups
might try to delay or block useful laws. So, to make sure that the government's goals are met
efficiently, it has become necessary to give the Executive the power to make detailed laws.
The practice of using delegated legislation has grown rapidly and has now become a
necessary part of modern government functioning.

The Constitutionality of Delegated Legislation

The legality and constitutionality of delegated legislation in India can be understood through
two distinct periods: the pre-independence era and the post-independence era.
i. The Constitutionality of Delegated Legislation During Pre-independence
Before India gained independence, a case known as Queen v. Burah (1878) set a precedent
where the Privy Council allowed conditional legislation. In this instance, legislative authority
was delegated to the executive.
The administration of civil and criminal justice in a territory could be assigned to officials
regularly chosen by the Lieutenant Governor. The Privy Council employed legislative
conditions in the case of King v. Benoari Lal Sharma, similar to Queen v. Burah. This case
involved a challenge to the legality of the Governor-General of India’s Emergency
Ordinance, which aimed to replace the provincial government and establish unique criminal
courts.
The provincial government was the sole authority with jurisdiction to establish such courts
and the judicial committee of the Privy Council ruled that this did not constitute delegated
legislation. They explained that it was an unconventional legislative authority, wherein a
regional administrative body determined the local implementation of state laws when
necessary.
ii. The Constitutionality of Delegated Legislation During Post-independence
The Indian Constitution does not grant legislative powers in the same way as the British
Parliament. The extent to which delegation is permissible in India is determined by the
specific provisions of the Indian Constitution. In legislative matters, there is no concept of an
unlimited right to delegate. In the case of Raj Narain Singh vs. Chairman, Patna
Administration Committee (1954), the Supreme Court of India upheld the transfer of power
from the legislative body to the executive body.
This case empowered the local government to expand the provisions of the Bengal
Municipality Act. However, in the case of Hamdard Dawakhana vs. Union of
India (1959), the Supreme Court declared the transfer of powers unconstitutional due to its
lack of clarity. It held that the Center’s authority to designate diseases and conditions under
the Drug and Magic Remedies (Objectionable Advertisements) Act of 1954 was
“uncontrolled” and exceeded the permissible boundaries of legal delegation, rendering it
unconstitutional.
In a 1973 ruling, the Supreme Court emphasised that its understanding of delegated
legislation had evolved in response to the practical needs of a modern welfare state.

III. Doctrine of Excessive Legislation – 5 Marks

The doctrine of excessive delegation under Administrative Law holds that if a legislative
body excessively delegates its authority to another entity, such delegation can be deemed
unconstitutional.
It is well settled that essential and primary legislative function must be performed by the
legislature itself and they cannot be delegated to the executive. Essential legislative functions
consist of the determination of Legislative policy and its formulation as a rule of conduct. In
other words, a legislature has to discharge the primary duty entrusted to it. Once essential
legislative powers are exercised by the legislature, all ancillary and incidental functions can
be delegated to the executive.
As observed in Arvinder Singh v. State of Punjab 1979 SSC, the founding document of the
nation that is the Constitution has created three great instrumentalities and entrusted them
with certain basic powers-legislative, executive and judicial system. Abdication of these
powers by any organ would amount to do betrayal of the Constitution itself and it is
intolerable in law.
The question whether there is excessive delegation or not has to be examined in the light of
three broad principles:
1. Essential legislative function to enact laws and to determine legislative policy cannot be
delegated.
2. In the context of modern conditions and complexities of situations, it is not possible for the
legislature to enact laws in detail every possibility and make provisions for them. The
legislature, therefore, has to delegate the certain functions provided it lays down legislative
policy.
3. If the power is conferred on the executive in a manner that is lawful and permissible, the
delegation cannot be held to be excessive nearly on the ground that a legislature could have
made more detailed provisions.
Permissible Delegation
i. Commencement
Several statutes contain an ‘appointed day’ clause, which empowers the Government to
appoint a day for the Act to come into force. In such cases, the operation of the Act
depends on the decision of the Government e.g. Section 1(3) of the Consumer Protection
Act, 1986 provides that the Act ‘shall come into force on such date as the Central
Government may by notification appoint.
ii. Inclusion & Exclusion
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.
iii. Exclusion
There are some statutes that empower the Government to exempt from their operation
certain persons, territories, commodities, etc.
The Minimum Wages Act, 1948 has been enacted as stated in its preamble, “to provide
for fixing minimum wages in certain employments”. The Act applies to employment
mentioned in the schedule, but the government is given the power to add any other
employment thereto and, thus, to extend the Act to that employment.
iv. 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.
v. Prescribing Punishments
In some cases, the legislature delegates to the executive the power to take punitive action,
e.g. under Section 37 of the Electricity Act, 1910, the Electricity Board is empowered to
prescribe punishment for breach of the provisions of the Act subject to the maximum
punishment laid down in the Act.
vi. 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. While conferring a power on the Executive to
modify a statute, two factors ought to be considered:
  The need and necessity of delegating such power, and
 The danger or risk of misuse of such power by the executive
Impermissible Delegation
i. 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
ii. Repeal of law
Power to repeal 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.
iii. Retrospective operation
The legislature has plenary power of lawmaking 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. Giving an Act
retrospective effect is essentially a legislative function and it cannot be delegated.
iv. 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 a law enacted by the competent legislature and not made by the executive.
v. 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.
However, if the changes are not essential in character, the delegation is permissible.
vi. 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.

IV. What is the concept of Delegated Legislation? Write a critical

note on Judicial Control of Delegated Legislation in India. - 15
Marks
Judicial Control on Delegated Legislation
When the parent act is ultra vires the constitution: If the parent act itself violates the
provisions of the constitution, it is considered void and unconstitutional. In such cases, any
delegation of legislative powers made under the parent act is also rendered void.
The courts have the authority to strike down both the parent act and the delegated legislation
if they are found to be in violation of constitutional provisions.
2. Delegated Legislation Not Authorised by the Enabling Act
Delegated legislation gets its power from the enabling Act, which defines the scope and limits
of the delegation. If the delegated rules go beyond what the Act allows, the courts can declare
them invalid. The courts ensure that the delegated legislation stays within the boundaries
fixed by the enabling Act and does not exceed the powers granted.
3. Delegated Legislation is Ultra Vires the Constitution
Sometimes, the parent Act is valid, but the rules made under it may break constitutional
provisions. For example, if the delegated legislation violates fundamental rights or goes
against other parts of the Constitution, courts can strike it down. The courts separately
examine the constitutional validity of the delegated rules, ensuring that they do not cross the
limits set by the Constitution.
4. Delegated Legislation is Ultra Vires the Parent Act
Delegated legislation can be challenged if it goes beyond the power given by the parent Act.
Courts carefully check if the delegated rules stay within the limits of the Act. If they go
beyond the authority, such rules are declared ultra vires and struck down.
5. Delegated Legislation is Ultra Vires Any General Law or Rule of Law
Delegated legislation must not conflict with existing general laws or fundamental legal
principles. It cannot legalise something that is otherwise illegal. If it goes against accepted
laws or violates the rule of law, courts can declare it ultra vires and cancel it.
6. Unreasonableness
Generally, an entire statute cannot be questioned just for being unreasonable. But if delegated
legislation appears unreasonable in specific situations, courts can declare it invalid. The idea
of reasonableness depends on the facts, context, and effect of the rule. Courts have the power
to judge whether the delegated legislation is reasonable or not.
7. Mala Fide (Bad Faith)
It is difficult to prove that delegated legislation was made with bad intentions. However, if
there is strong proof that the law was made with ulterior motives or malicious intent, it can be
challenged. The courts may look at the purpose and actions of the authority making the law to
see if it was done in bad faith.
8. Excessive Delegation
Excessive delegation happens when law-making power is given in a way that goes beyond
what is reasonable or necessary. Though Indian courts rarely strike down laws just for this,
such delegation is still criticised. It is mostly allowed if the enabling Act clearly allows it,
either directly or impliedly.
9. Sub-Delegation
The general rule is that a person or body who has been given power cannot give it to someone
else. However, in some legal systems, sub-delegation is allowed if there is a specific
provision. Even then, if the sub-delegated act is against the Constitution or the enabling Act,
it can be declared invalid.
10. Non-Compliance with Court Orders
If the government or authority ignores a court order related to delegated legislation, the court
can invalidate the law or action. Through judicial review, courts ensure that their decisions
are respected. Ignoring court orders may lead to the delegated legislation being struck down.
11. Non-Application of Mind
Delegated legislation may be cancelled if it’s clear that the authority did not properly consider
the facts or apply their mind before making the rule. Courts check whether the rule-maker
made a reasonable and thoughtful decision. If not, the rule can be invalidated for non-
application of mind.

V. Types of Delegated Legislation – 5 Marks