ADMINISTRATIVE LAW (UNIT-II)

Syllabus: Legislative Power of Administration - Doctrine of Vice of excessive Delegation - Judicial

and Parliamentary control over delegative legislation - Advantages and disadvantages of delegated
legislation - Exclusion of Judicial Review of Delegated Legislation, Administrative directions.

Objectives:

• To understand the concept, meaning, and scope of delegated legislation.

• To identify essential functions of the legislature
• To realize permissible and impermissible delegation
• To know Judicial and Parliamentary control over delegative legislation
• To discuss need and relevance of administrative directions

LEGISLATIVE POWERS OF ADMINISTRATION

A legislature is a kind of assembly with the power to pass, amend and repeal laws. Statutory laws are
the basic framework of the modern legal system. Supreme legislation and subordinate legislation are
two types of the legislature.

Subordinate legislation is any other legislation which is lower in authority from supreme legislation and
derives its power from any authority other than the sovereign power.

Legislative power of administrative agencies, usually known as rule- making power and more formally
delegated legislation, is the power of agencies to enact binding rules through the power delegated to
them by the legislator. The complex nature of the modern state is that such elected representatives are
not capable of passing laws to govern every situation. Many of their lawmaking powers, as well as the
power to administer and implement the laws, are therefore delegated to administrative agencies.

However, the rule-making power of the executive is very limited in its scope. The rules made by the
executive are placed on both the Houses of the Parliament and are then considered to be approved by
the legislature. These rules then become part of the laws.

Naraindas vs State of Madhya Pradesh, the court establishes the proposition that: The executive can
take administrative action without a specific statutory sanction over the entire area filling within
legislative competence of the concerned legislature, if it does not infringe a legal right of any person. A
government can, thus, engage in a trading activity, enter into a treaty with foreign countries, make
appointments, make promotions to higher administrative posts, fix seniority, establish fair price shops,
without there being specific legislation for the purpose. An executive action which, however, operates
prejudicially affect the legal rights of any person.
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According to the traditional theory, the function of the executive is to administer the law enacted by the
legislature, and in an ideal state, legislative power must be exercised exclusively by the legislators who
are directly responsible to the electorate.

DELEGATED LEGISLATION

There is no precise definition of the expression delegated legislation. ‘Delegation’ has been defined by
Black’s Law Dictionary as 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.

Delegated legislation is a term used to describe legislative actions taken by another branch of
government. Delegated legislation is a concept that aims to enable easy access for common citizens to
the legislative process.

Delegated legislation refers to the process of delegating the power to make laws for a particular state,
defined area, or unit of government to another body. The word delegation can be used synonymously
with the delegation of legislative powers. In Simple words, Delegated legislation is the type of
legislation that is introduced by the government to ensure the smooth functioning of the state
administration. Delegated legislation refers to all law-making that takes place outside the legislature and
is generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications, etc.

‘Delegated legislation’ means exercising of legislative power by an agent who is lower in rank to the
Legislature, or who is subordinate to the Legislature. Delegated legislation, additionally alluded to as an
auxiliary legislation, is an enactment made by an individual or body other than Parliament. Parliament,
through an Act of Parliament, can allow someone else or somebody to make enactment.

According to Salmond, “The expression delegated legislation as that which proceeds from any authority
other than sovereign power and is therefore dependent for its continued existence and validity on some
superior or supreme authority”.

According to the M P Jain and S N Jain, the term “Delegated legislation” is used in two sense:

(1) exercise by subordinate agency of the legislative power delegated to it by the legislature, or

(2) The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed on
it by the Legislature.

Justice P.B Mukherjee says that “delegated legislation is an expression which covers a multitude of
confusion. It is an excuse for the legislators, shield for the administrators and procreation to the
constitutional jurist”.
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According to C. K. Takwani, ‘delegated legislation’ is a legislation made by a body or person other

than the sovereign in Parliament by virtue of powers conferred by such sovereign under the statute.
Thus, when the function of legislation is entrusted to organs other than the legislature by the legislature
itself, the legislation made by such organ is called delegated legislation.

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. Delegated legislation is, referred to as Subordinate, Ancillary,
Administrative legislation, and Quasi-Legislation.

HISTORICAL DEVELOPMENT

20th century has witnessed rapid growth of delegated legislation in almost all legal systems of the world.
But that does not mean that it is a new phenomenon or that there was no delegation of legislative power
by Legislature to Executive in the past. Ever since statute came to be enacted by Parliament, there was
delegation of legislative function. The statute of 1337 contained a clause which made it felony to export
wool, unless it was ordained by the King and his Council. In 15th and 16th centuries, there was frequent
use of Henry VIII Clause (clauses in a bill that enable ministers to amend or repeal provisions in an Act
of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny)
The Statute of Sewers of 1531 empowered Commissioners to make, re-make, repeal and amend laws,
to pass decrees and to levy cess. Thus, the Commissioners used to exercise legislative, administrative
and judicial powers at a time. Mutiny Act, 1717 conferred on the Crown power to legislate for the Army
without the aid of Parliament. In 19th century delegated legislation became more common and
considerably increased due to social and economic reforms. In the 20th century, output of delegated
legislation by executive is several times more than the output of enactments by a competent legislature.
History of delegated legislation in India

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. The Charter Act of 1833 vested the
administrative powers only in the hands of the Governor-General-in Council, which was an official
body. He was 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
Act, 1935 was passed which contained a serious plan of delegation.

ESSENTIAL CHARACTERISTICS OF DELEGATED LEGISLATION

[Link] rules should contain short titles, explanatory notes, reference to earlier amendments, etc. for clear
understanding.

2. No extraordinary delay shall occur in making the subordinate legislation.

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3. The administrative authority should not travel beyond the powers given in the Parent Act.

4. Essential legislative functions cannot be delegated.

5. Sub-delegation (Delegatus non potest delegare) is not encouraged.

6. General rules should not be framed with retrospective operation, unless and until the parent instructs
to do so.

7. Discriminatory and arbitrary rules should not be framed.

8. Wide and sufficient publicity should be given so that the general public can know it.

9. In appropriate cases, consultation also shall be made for more effectiveness and efficiency.

10. The subordinate authorities should not use rigid, crux and technical language while preparing the
rules, which may cause difficulty to understand by the general public.

11. The final authority of interpretation of the subordinate rules is vested to Parliament and Courts. But
the administrative authorities are not empowered and authorized to interpret the statutes.

12. The language must be clear and simple.

13. A tax or financial levy should not be imposed by rules.

14. Wherever it is necessary, explanatory notes shall be given.

15. Public interest must be kept in view while delegating the powers, etc.

REASONS FOR GROWTH OF DELEGATED LEGISLATION

Many factors are responsible for the rapid growth of delegated legislation in today’s time. The function
of the state has long since ceased to be confined to preservation of the public peace, the execution of
laws and defense of the frontiers. The functions of the state are now secure and to its citizen’s objectives
set in part III and IV of the Constitution. Because of the radical change in the governance of a country
from ‘police state’ to the ‘welfare state’ the function and the need of delegated legislation have
increased. These factors and reasons for growth of delegated legislation can be seen as follows:

1. Pressure upon time of Parliament: 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 Parliament is so much occupied
with matters concerning foreign policy and political issues that it has not much time to enact the
laws in detail. So it only frames the broad part of the rule and outline of the legislation and gives
that legislation to the executive or some of its subordinates to fill the full detail following the
necessary rules and regulations.
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2. Technicality in the matters: To understand the technicality of each and every topic, legislature
needs the expert of that particular topic who is well aware of each and every detail of that matter.
3. Flexibility: Parliamentary amendment is very slow and it requires a process to make any type of law
but by the tool of delegated legislation it can be made expeditiously with the help of the executives,
e.g., police regulation, bank rate, import and export, foreign exchange, etc.
4. Emergency: In times of emergency and war, an executive is given wide power to deal with that
situation.
5. Experimentation: The practice of delegated legislation enables the Executive to experiment.
6. Complexity of modern administration: It is important that an administration should give an excess
of power to activate socio-economic policies.
7. Confidential Matters: Law must not be known to anybody till it comes into operation. (Rationing
schemes or imposition of import duty or exchange control are examples of such matters)
8. Speediness: Delegated legislation does not require time, voting, and lengthy procedure, etc.

CLASSIFICATION OF DELEGATED LEGISLATION

Classifications as per the name of

Title Based rules, regulations, bye-laws etc.

Classification as per the discretion

Discretion Based of any authority

Classification of Classification as per nature,

Purpose Based extent, purpose for which the
Delegated Legislation power is conferred

Classification as per the authority

Authority Based hierarchy

Classification on the nature and

Nature Based extent of delegation

Delegated legislation means giving power or authority to someone lower than his rank to make laws.
So, there can be many ways in which this excess of power can be given to subsidiary rank people or an
Executive. Delegated legislation may be classified into different forms:

(i) Titled based classification.

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Delegated legislation could be in the form of rules, regulations, bye-laws, notifications, schemes, orders,
ordinances, directions, etc. Parliament does not follow any particular policy in choosing the forms of
delegated legislation.

The legislature enacts the Skelton and empowers the administrative to supply the flesh through
subordinate legislation. Many enactments contain an ‘enabling clause’ usually provides that the Central
and State governments may make rules ‘to carry out the purpose of the Act’.

Examples: Under the Environment Protection Act, 1986, the central government can make rules for
effecting this act. In the covid pandemic, the government passed an order to include masks and
sanitizers as essential commodities under the Essential Commodities Act by the administrative wing.

(ii) Discretion Based Classification.

Conditional or contingent legislation are types of discretion-based classification. The power of

discretion may be conferred upon the executive to bring a particular act into operation upon certain
conditions. When a certain act is passed by the legislation, the legislature gives power to the executive
to bring the particular act into force/operation but by fulfilling certain conditions. It involves the power
to determine when legislation can become effective.

Conditional Legislation

Conditional legislation may be defined as a statute that provides controls but specifies that they are to
go in force only when certain conditions are fulfilled. In conditional legislation, the legislature makes
the law complete but that law is not brought in force immediately. It is left on the executive to fulfillment
of certain conditions to bring in operation.

As Sir Cesil Carr observed ‘the legislature provides the gun and prescribes the target but leaves to the
executive the task of pressing the trigger’.

For example: in the Environment Protect Act, section 1(3) states that the act shall come into force when
the central government by giving notification in the official gazette appoints a date for its enforcement
or for enforcing different provisions on different dates.

Conditional legislation is classified into 3 categories:

1. When the legislation is complete but leaves its future applicability to executive authority.
2. Where the legislation is enforced but leaves the power to be withdrawn from the operation of the
act in the given area or situation to the executive.
3. Gives authority to the administrative wing to decide which group of people should be/should not
be given the benefit of the act.
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Hamdard Dawakhana v. Union of India: The court observed that, ‘delegated legislation’ involves the
rule-making power to be exercised by the administrative authority. Whereas, in conditional legislation,
there is no rule-making power given to the executive. It involves the power to determine when legislation
can become effective.

In delegated legislation, the delegate completes the legislation by filling in the details to it within the
prescribed limits. On the contrary, in conditional legislation, the legislation is complete. The delegate is
given the power to apply the law to an area or to determine the time and manner of carrying it into effect.

(iii) Purpose Based Classification.

Another classification of administrative rule - making would involve the consideration of delegated
legislation in accordance with the different purposes which it is made to serve. On this basis, the
classification may be an Enabling Act, Alteration Act, Taxing Act, Supplementary Act, Classifying and
Fixing Standard Act, Penalty for Violation Act, etc.

 Enabling Act: Such Acts contain an ‘appointed day’ clause under which the power is delegated to
the executive to appoint a day for the Act to come into operation.
 Extension and Application of Act: In respect of a territory or for duration of time or for any other
such object.
 Dispensing and Suspending Acts: Power is delegated to the administrative authority to make
exemptions from all or any provision of the Act in a particular case or class of cases or territory,
when at the discretion of the authority, circumstances warrant it.
 Alteration Acts: Alteration is a broad term and includes both modification and amendment. The
power of modification is limited to consequential changes, but if overstepped it suffers challenge on
the ground that it is not within the legislative intent of modification. Sometimes includes the power
to remove difficulties so that the various statutes may coexist. Amendment: power to change the
schedule of an Act.
 Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.
 Supplementary Acts: Power is delegated to the authority to make rules to carry out the purposes of
the Act.
 Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve the rules
framed by another specified authority.
 Classifying and Fixing Standard Acts: Power is given to administrative authority to fix standard
of purity, quality or fitness for human consumption. Courts have upheld on grounds of necessity.
 Penalty for Violation of Acts: Power may be delegated to administrative authority to prescribe
punishment for violation of rules.
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 Clarify the provisions of the statute’ Act: Power is delegated to the administrative authority to
issue interpretation on various provisions of the enabling Act.

According to C. K. Takwani, executive can be empowered to fix an appointed day for the act to come
into force, to supply details, to extend the provisions of the act to other areas, to include or to execute
operation of the act to certain territories or persons or industries, commodities, and to suspend or to
modify the provisions of the Act, etc.

(iv) Authority Based Classification.

Another classification of administrative rule-making is based on the position of the authority making
the rules. A legislation in which a statute made by the legislature can empower the executive to further
delegate the powers conferred by it to a subordinate. In other words, the power of the executive to
delegate further powers conferred on it to its sub-ordinate authority is known as sub-delegation. Rule-
making authority cannot delegate its power unless the power of delegation is contained in the enabling
Act.

(v) Nature Based Classification

Classification of administrative rule-making may also be based on the nature and extent of delegation.
The Committee on Minister’s Powers distinguished two types of parliamentary delegation:

a) Normal Delegation:

(i) Positive: Where the limits of the delegation are clearly defined in the enabling Act.

(ii) Negative: Where the power delegated does not include the power to do certain things. (E.g.: Power
to legislate on matters of policy or power to impose tax)

b) Exceptional Delegation: Instances of exceptional delegation may be:

(i). Power to legislate on matters of principle.

(ii) Power to amend Acts of Parliament.

(iii) Power conferring such a wide discretion that it is almost impossible to know the limits.

(iv) Power to make rules without being challenged in a court of law.

Such exceptional delegation is also known as the Henry VIII clause to indicate executive autocracy.

The King of England in the 16th century imposed his autocracy will through the instrumentality of the
parliament. Under this clause, very wide range of the powers is given to the administrative agencies to
make rules, including the power to amend and repeal the laws. The classical illustration of Henry VIII
clause is found in the Article 372 (2) of the Indian Constitution, where the president has been the power
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to adopt, amend and repeal any law in force to bring it in line with the provision of the constitution, and
exercise of such power has been made immune from the scrutiny of the courts.

ADVANTAGES OF DELEGATED LEGISLATION

 Save time for the legislature and reduces the workload of the Parliament
• The Parliament has to pass several legislations within a short span of its life.
• It has to take such type of intensive work that it can hardly enact the law provisions in detail.
• So there arises the need to overcome that load and it can be possible only through delegating
legislative authority to the subsidiary or the executives.
 Allow for flexibility.
• When the legislature passes a statute, it is almost impossible to foresee all the contingencies
which may arise in the future in the practical application of such a law.
• Of course, it is possible to amend the statute as and when the need arises. However, this is a slow
and cumbersome process.
• In such a situation, delegated legislation allows the executive to overcome practical difficulties
by exercising the power conferred on it by the parent act.
• 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 the modern
public.
 Used as an experimental basis (Scope of Experimentation)
• The administrative authorities can frame a new rule, try it out for some time, and if found
unsuitable or unsatisfactory or unworkable, may modify or even repeal it without much
formality.
 It is restored to use it in a situation of emergency (Rapid Action during Emergencies)
• Quick action is needed in times of emergencies like war, internal disturbances, floods, epidemics,
strikes, lock-outs, bandhs, etc.
• The lengthy legislation process of Parliament is just not suited for such situations.
• If the executive is armed with special powers, the situation can be kept under control very
quickly.
 Decentralized decision making:
• The local councils are more suited to make laws for their constituencies as they better know the
condition of their constituencies than any other.
• These local bodies can make better laws for their area that a Parliament cannot do so because
they know their locals need and what they want.
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• The Parliament makes the laws for broad principle while its delegate handles the local principle.
 Brings in Technical Expertise: (Expert opinion is required in legislation)
• Today’s world has become very technical and complicated by the introduction of modern means
and advancement in technology.
• 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 which need basic knowledge.
• 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.
 Can be easily Settle down with consulting the required party of the case
 Parliament is not always present in the session.

CRITICISM OF DELEGATED LEGISLATION

a. Possibility of overreach and or overlapping:

• As delegated legislation can often be confusing, complex and difficult to understand.

• Moreover, it can be different (and at times, contradictory) in different states, thus leading to
confusion and lack of uniformity.
• Delegated legislation results in overlapping of functioning as the delegated authorities get work
to amend the legislation that is the function of the legislators.

b. No parliamentary deliberation:

• Parliament does not get a chance to debate rules, regulations, etc. made by the executive.
• These are made in the ante-chamber of the bureaucrat and the benefits of parliamentary
deliberations are lost.
• Unelected people cannot make much delegated legislation as it would be against the spirit of
democracy.

c. No prior publicity:

• Drafts of Parliamentary Bills are often published for public comment and criticism.
• However prior publicity is not always possible in case of rules and regulations and the benefits
of public discussion and criticism is lost.

d. Not enough publicity:

• Everyone is supposed to know the law because statutes are generally speaking, easily accessible.
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• This is not so in the case of delegated legislation, where the mass of rules, regulations, bye-laws,
orders, etc. often lie buried in the files of bureaucrats.
• Antecedent publicity, that is, publicity before enactment is often missing in delegated legislation.

e. Lesser research:

• Since statutes are normally given greater publicity than rules and regulations, the former can
reach out to a greater number of citizens.

f. Possibility of poor drafting:

• Delegated legislation may not be well considered or drafted by legislative experts and may thus
suffer from infirmities due to poor drafting.

g. Scope for Political Misuse

• It can possibly be misused for political gain.

• The executive makes law according to what the political parties’ wish.
• Hence, it results in the misuse of the legislation made by the Executive by the ruling party.

h. Excessive Delegation

• There is every possibility of misappropriation and misadministration of excessive delegation

i. Codification

• Codification is very difficult task in delegated legislation

• Every day several hundreds of G.O, rules, notifications etc. are published by different
departments.
• Very hard to get the copies of such delegated legislation

j. Ultra Vires: demerit of subordinate delegation

 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.
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 Delegated legislation makes laws without much discussion. So, it may or may not be better for the
public.

Mechanism to address Challenges associated with Delegated Legislation

• With the rise in delegated legislation, the need to control it also arises because the increase in
the delegation of power also increases the chance of the abuse of power.
• Judicial control apart from legislative and procedural control is the way how the delegation of
power can be controlled.

Parliamentary Control

• Measures should be taken to strengthen the control of Parliament over delegated legislation.
• It is necessary that the role of the committees of the Parliament must be strengthened.
• A separate law like the Statutory Instruments Act, providing for uniform rules of laying and
publication, must be passed.
• The committee may be supplemented by a specialized official body to make the vigilance of
delegated legislation more effective.

Procedural and Executive Control

• There is no particular procedure for Delegated Legislation until the legislature makes it
mandatory for the executive to follow certain rules or procedure.
• Pre-publication and consultation with an expert authority, Publication of delegated legislation,
must be made compulsory before delegated law is enacted.

Judicial Control

• The delegated legislation can be questioned in courts on the grounds of substantive ultra vires
and on the ground of the constitutionality of the parent act and the delegated legislation.
• The delegated legislation can also be challenged on the ground of its being unreasonable and
arbitrary.
• Law defined under Article 13 of Constitution of India clearly indicates that the State should not
make any law which abridges the right given in Part III of the Constitution.

DELEGATED LEGISLATION IN ENGLAND

The Doctrine of Parliamentary Sovereignty is the heart of UK Constitution. The Parliament is sovereign
in England and there is no restriction on the Parliament by then Constitution. In England, Parliament
also has powers to delegate its legislative powers to the Executive or other subordinate bodies. (Absolute
Delegation). The doctrine of excessive delegation has no application in UK. Remedy is in the hands of
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Parliament: Parliament can control the delegation of power by if it so pleases. There is no external
agency to compel parliament to do so.

The Reasons for growth of delegated legislation in other countries were equally responsible for the
development of delegated legislation in England. It was during the two world wars that there was a
tremendous increase in delegated legislation to stop massive inroads were made into comparatively
personal matters of citizens example housing, education, employment, pension, health, planning,
production, preservation and distribution of essential commodities social security etc.

The Committee on Ministers’ Powers also known as Donoughmore Committee submitted a report in
1932. It dealt, inter alia, with delegated legislation.

According to the Report, delegation is necessary because:

1. The legislature (Parliament) has much pressure of work on its time.

2. The legislators lack the technical knowledge required by modern legislation.

3. Complexities & Contingencies in the law are to be specially dealt with.

4. Amendment of legislation is to be avoided.

It has also been noted that the reality is that Parliament must provide guidance and also scrutinize the
work of the delegate to whom the power to legislate is delegated otherwise there is a danger that “then
servant will be passed over to then master. The committee rightly stated 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

Delegated legislation is not accepted because of two doctrines, viz., Separation of Powers and Delegatus
non protest delegare (no delegated powers can be further delegated)

A. Separation of Powers

This Doctrine is recognized by the U.S Constitution and by Article I legislative powers is expressly
conferred on the Congress. Article II states that the executive power shall be vested in the President and
under Article III the Judiciary has power to interpret the Constitution and declare any statute
unconstitutional if it does not confirm to the provisions of the constitution.

In the leading case of Field v. Clark 1892 the US Supreme Court observed that Congress cannot delegate
legislative powers to the President is a principle universally recognized as vital to the integrity and
maintenance of the system of government ordained by the constitution.
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B. Delegatus non protest delegare (a delegate cannot further delegate)

According to this Doctrine, a delegate cannot further delegate his power. As the Congress gets power
from the people and is a delegate of the people in that sense it cannot further delegate its legislative
powers to the executive or to any other agency. Hence it is a cardinal principle of representative
government that the legislature cannot delegate the power to make laws to any other body or authority.

Delegation in Practice

The Supreme Court recognized the reality and tried to create a balance between the two conflicting
forces: (I) Doctrine of separation of powers barring delegation and (II) Inevitability of delegation due to
the exigencies of the Modern Government. Thus, pragmatic consideration has prevailed over theoretical
objections. The courts have relaxed rigorous of the doctrine of separation of powers and permitted broad
delegation of powers provided that the Congress itself should lay down policies and standards for the
guidance of delegate.

In Panama Refining Company vs Ryan popularly known as the hot oil case under Section 9(c) of the
National Industrial Recovery Act 1933 (NIRA) the President was authorized by the Congress to prohibit
transportation of oil in interstate commerce in excess of the quota fixed by the state concerned. The
policy of the Act was to recover encourage National industrial recovery and to foster fair competition.
The Supreme Court by the majority held that the delegation was invalid. According to the court the
Congress had not declared any legislative policy or standard.

In Schechter Poultry Corpn. V. United States 1935 (Sick Chicken Case) the Supreme Court unanimously
struck down Section (3) of National Industrial Recovery Act (NIRA), 1933 which authorized the
President to approve codes of fair competition for particular trades and industries. It’s violation was
made punishable. The court held that the section 3 of the Act was unconstitutional. And this was
delegation running riot. In an opinion authored by Chief Justice Hughes, the unanimous Court held that
the Act was “without precedent” and was an unconstitutional delegation of legislative authority. The
President cannot be allowed to have unbridled control to make whatever laws he believes to be necessary
to achieve a certain goal.

Liberal view on Delegated Legislation: National Broadcasting Company v. United States, 1943 vast
powers were conferred upon the Federal Communication Committee (FCC) to license broadcasting
stations under the Communications Act, 1934 the criterion was “Public Interest, Convenience or
Necessity” though it was vague and ambiguous, the supreme court held it to be a valid standard.

Thus, it can be concluded that delegated legislation in USA is the exercise by a subordinate authority
such as a Minister of the legislative power delegated to him by the Parliament. Parliament passes the
Bill in general terms and delegates the authority of rule-making under the Act to the Minister concerned.
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Since this authority of rule-making is in pursuance of statutory authority and not an original power of
the Executive in its own right delegated legislation is subservient to the statute under which it is made.
If the rule is not consistent with the statute, it is null and void.

Regulations and Statutory Rules are the most common forms of Delegated Legislation in USA. They
are made by the Executive or a Minister and apply to the general population. By-laws, and sometimes
Ordinances, are made by a Local Government Authority and apply to the people who live in that area.
Rules commonly describe the procedure to be followed in courts.

DELEGATED LEGISLATION IN INDIA

The discussion can be divided into two stages:

[Link] - Constitution Period.

[Link] - Constitution Period.

(i) Pre-Constitution Period.

Queen v. Burah 1878 is considered to be the leading authority propounding the doctrine of conditional
legislation. In 1869, the Indian legislature passed an Act purporting to remove the district of Garo Hills
from the jurisdiction of the civil and criminal courts and the law applied therein, and to vest the
administration of civil and criminal justice within the same district in such officers as the Lieutenant
Governor of Bengal might appoint for the purpose. By section 9, the Lieutenant-Governor was
empowered from time to time, by notification in the Calcutta Gazette, to extend, mutatis mutandis, all
or any of the provisions contained in the Act to the Jaintia, Naga and Khasia Hills and to fix the date of
application thereof as well. By a notification dated October 14, 1871, the Lieutenant Governor extended
all the provisions of notification which was challenged by Burah who was convicted of murder and
sentenced to death. The High Court of Calcutta by a majority upheld the contention of the appellant and
held that section 9 of the Act was ultra vires the powers of the Indian Legislature. In the opinion of the
Court, the Indian Legislature was a delegate of the Imperial Parliament and as such further delegation
was not permissible.

Thereupon the Government appealed to the Privy Council. The Act was held valid by the Privy Council.
It was held that the Indian Legislature was not an agency or delegate of Imperial Parliament and it had
plenary powers of legislation as those of Imperial Parliament. It agreed that the Governor-General in
Council could not, by legislation create a new legislative power in India not created or authorized by the
Council’s Act of Imperial Parliament. However, in fact it was not done. It was a case of only conditional
legislation, as the Governor was not empowered to pass new laws but merely to extend the provisions
of the Act already passed by the competent legislature upon fulfillment of certain conditions.
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The decision of the Privy Council is open to two different interpretations. One interpretation is that since
the Indian legislature is not a delegate of British Parliament, there is no limit on the delegation of
legislative power. But the other interpretation is that since Privy Council has validated only conditional
legislation, therefore, delegation of legislative power is not permissible.

The question of constitutional validity of delegation of powers came for consideration before the Federal
Court in Jatindra Nath Gupta v. Province of Bihar. In this case the validity of section 1(3) of Bihar
Maintenance of Public Order Act, 1948 was challenged on the ground that it empowered the Provincial
Government to extend the life of the Act for one year with such modification as it may deem fit. The
Federal Court held that the power of extension with modification is not a valid delegation of legislative
power because it is an essential legislative function which cannot be delegated. In this way for the first
time, it was ruled that in India Legislative powers cannot be delegated. In Sardar Inder Singh v. State of
Rajasthan, the Supreme Court a similar provision.

(ii) Post-Constitution Period

(a) Constitutionality of Delegated Legislation.

As the decision in Jatindra Nath case had created confusion, the question of permissible limits of
delegation of legislative power became important. Therefore, in order to get the position of law clarified,
the President of India sought the opinion of Supreme Court under Article 143 of the Constitution. The
question of law which was referred to the Supreme Court was of great Constitutional importance and
was first of its kind. The provision of three Acts, viz.,

(1) Section 7 of the Delhi Laws Act, 1912

(2) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947
(3) Section 2 of the Part C States (Laws) Act, 1950, was in issue in Delhi Laws Act Case, Re.

Four-fold classification of States of Indian Union

Part A: 9 Governor’s provinces of British India (Assam, Bihar, MP, Bombay, Madras, Punjab, UP, WB)

Part B: 9 Princely states with legislatures (Hyderabad, Travancore-Cochin, Mysore…)

Part C: 10 Chief Commissioners provinces (Delhi, Ajmer, Bhopal, HP, Manipur, Tripura.._)

Part D: Andaman & Nicobar

There were a few Part C States. Delhi was one of them. Part C States were under the direct administration
of the Central Government as they had no legislature of their own. Parliament had to legislate for these
States. It was, therefore, that Parliament passed a law, the Part C States (Laws) Act, 1950.
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The Central Government was authorized by section 2 of the Part C States (Laws) Act, 1950 to extend to
any Part C State with such modifications and restriction as it thinks fit, any enactment in force in a Part
A State, and while doing so, it could repeal or amend any corresponding law (other than a central law)
which might be in force in the Part C States. Really, it was a very sweeping kind of delegation.

The Supreme Court was called upon to determine the constitutionality of this provision, All the seven
judges who participated in the reference gave seven separate judgments “exhibiting a cleavage of
judicial opinions on the question of limits to which the legislature in India should be permitted to
delegate legislative power”. By a majority, the specific provision in question was held valid subject to
two limitations: (1) The executive cannot be authorized to repeal a law in force and thus, the provision
which authorized the Central Government to repeal a law already in force in the Part C States was bad;
and (2) by exercising the power of modification, the legislative policy should not be changed, and thus,
before applying any law to the Part C State the Central Government cannot change the legislative policy.

(b) Principles laid down in the Reference Case.

In Re Delhi Laws Act may be said to be ‘Siddhanatawali’ (Ideologue: adherent to ideology) as regards
constitutionality of delegated legislation. The importance of the case cannot be under-estimated in as
much as on the one hand, it permitted delegation of legislative power 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:

(a) Parliament cannot abdicate or efface itself by creating a parallel legislative body.

(b) Power of delegation is ancillary to the power of legislation.

(c) The limitation upon delegation of legislative power is that the legislature cannot part with its essential
legislative power that has been expressly vested Constitution. Essential legislative power means laying
down policy of law and enacting in it by the that policy into a binding rule of conduct

(d) 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.

After the Delhi Laws Act case, in Hamdard Dawakhana v. Union of India, 1960 Supreme Court was
probably the first case in which Central Act was held ultra-virus on the ground of excessive delegation
to stop the Drugs and Magic Remedies Objectionable Advertisements Act, 1954 was enacted by
Parliament to control advertisement of certain drugs.
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In Indian Express Newspapers v. Union of India, the Supreme Court observed that the subordinate
legislation does not enjoy the same degree of immunity as substantive legislation enjoys.
‘Unreasonableness’ is one of the grounds of judicial review available in respect of delegated legislation.

KINDS OF DELEGATED LEGISLATION

According to Salmond there are five kinds of subordinate legislation:

1. COLONIAL

Once upon a time, 3/4th of the world was under reign of British. It was highly impossible to the British
Parliament to legislate all the matters for all the colonies. Therefore, legislative power was delegated to
such colonies to a certain extent. All of such Colonial Legislations were subject to the control of the
British Parliament. It can repeal, alter, or supersede any colonial enactment. Such colonial enactments
were the first species of the Subordinate Legislation.

2. EXECUTIVE

It is the most important subordinate legislation in the modern countries, including India. A new type of
federal and democratic countries, such as Australia, Canada, America, India, etc. are formed in the recent
centuries, having a strong Centre and weak subordinate States. The centre has Parliament which is the
source of Supreme legislation. The remaining legislative bodies are inferior to Parliament. To implement
the social and welfare programmes, to delegate the legislative powers to the executive has become
compulsory and unavoidable. It is now well known as Delegated Legislation.

3. JUDICIARY

The Supreme Court is the highest court in the country. Similarly, the High Court is the highest court in
the State. Article 145 empowers the Supreme Court to make the rules for regulation of its own
procedures and the procedures of all Courts in India.

4. MUNICIPALITIES

All municipalities, gram panchayaths, Zilla parishads etc. are empowered to make rules, bye laws etc.
with limited powers for the administration of their respective jurisdiction.

5. AUTONOMOUS LEGISLATION

Autonomous legislation is the process of making law by person (not the state) for their own guidance
within the sphere in which they have been authorized to make such laws.

Eg: University: Syndicate make rules, Registered Company, Societies, Trade Unions
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EXCESSIVE DELEGATION

Essential and primary legislative functions must be performed by the legislature itself and they cannot
be delegated to executive. Essential legislative functions consist of determination of Legislative policy
and its formulation as a rule of conduct. Ancillary and incidental functions can be delegated to the
executive. Avinder Singh v. State of Punjab, emphasis the three organs of the government and their
governmental functions.

NATURE AND SCOPE

Parliament does not possess the legislative power as an inherent but has been delegated to it by the
Constitution. Thus, parliament does not possess a right to delegate at its sweet will, but a competence
that the Constitution obliges it to exercise itself.

Abdication of legislative power: When the legislature does not legislate and entrusts that primary
function to the executive or to an outside agency.

PRINCIPLES

The question whether there is excessive delegation or not, has to be examined in the light of three broad
principles:

(1) Essential legislative functions to enact laws and to determine legislative policy cannot be delegated.
(2) In the context of modern conditions and complexity of situations, it is not possible for the legislature
to envisage in detail every possibility and make provisions for them. The legislature, therefore, has to
delegate certain functions provided it lays down legislative policy.

(3) If the power is conferred on the executive in a manner which is lawful and permissible, the delegation
cannot be held to be excessive merely on the ground that the legislature could have made more detailed
provisions.

TEST

A statute challenged on the ground of excessive delegation must be subjected to two tests:

(i) Whether it delegates essential legislative function; and

(ii) Whether the legislature has enunciated its policy and principle for the guidance of the
executive.

Powers and Duties of Courts

Judiciary interferes only if the essential functions of the legislature are delegated. If the legislative policy
is enunciated by the legislature and a standard has been laid down, the court will not interfere with the
discretion to delegate non- essential functions to the executive.
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In Vasan Lal Maganbhai Sajanwala v. State of Bombay 1961: The Constitution confers a power and
imposes a duty on the legislature to make laws. The essential legislative function is the determination
of the legislative policy and its formulation as a rule of conduct. Obviously, it cannot abdicate its
functions in favor of another. But in view of multifarious activities of a welfare state, it cannot
presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily
delegate the working out details to the executive or any other agency.

PERMISSIBLE DELEGATION

The Supreme Legislation gives permission to executive to make the law and such law is known as
‘Delegated Legislation’ or ‘Subordinate Legislation’ or ‘Administrative Legislation’. This is
“Permissible Legislation”, because it is permitted by the supreme authority.

Various methods under which the delegated legislation is permitted

The following functions may be delegated by the legislature to the executive:

1. COMMENCEMENT

It is similar to conditional legislation. The entire Act is made by the supreme authority only. It permits
the delegated authority to bring it in force with a fixed date. That date is also fixed by the supreme
authority only. It is the only duty of the delegated authority to take the necessary publication,
notification, etc. of such Act in the Official Gazette and to start it from that fixed date.

Sir Cecil Carr categorically explains it in a metaphor: “The legislature provides the gun and prescribes
the target but leaves to the executive the task of pressing the trigger.”

2. ANCILLARY FUNCTIONS

The supreme authority makes the law, which is full and final, but leaves some ancillary functions to the
subordinate authorities. Under the permission of the supreme legislation, the delegated authorities make
rules regarding ancillary functions. In other words, 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.

EXAMPLE: All India Services Act, 1951 has been enacted by the Parliament. Section 3 of that Act
permits the Central Government to prepare the rules for the service conditions in the All-India Services.
The Supreme Court, in D.S. Garewal vs. State of Punjab (AIR 1959) upheld the permission given under
Section 3.
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3. INCLUSION

It also resembles conditional legislation. An Act is made by the Parliament. It is full and final. First, the
Parliament extends the Act to certain areas of the country. Later, it delegates the power to extend to
other areas to the executive, with a condition that the executive may extend to the remaining parts or to
certain parts of the country, if the executive pleases with the circumstances.

Eg: The Transfer of Property Act 1882 – Until 1947 it was not in force in Nizam State. After
independence it was extended to Nizam State by an executive order.

AP Chit Funds Act 1971 – Chit Funds Act 1982 (Parliament): Implementation date left to the discretion
of the State governments.

4. EXCLUSION

It also resembles conditional legislation. An Act is made by the Parliament. It is full and final. 1st
Parliament extends the Act entire country. Later it delegates it to the executive and empowers it to
remove certain areas from the operation of that Act.

Example: The Payment of Bonus Act, 1965. Section 30 of this Act empowers the executive to exclude
certain areas from its operation.

Case-law: Jalan Trading Co. v. Mill Mazdoor Union (1966)[Refer to brief facts in Topic Henry Clause
VIII.]

5. SUSPENSION

An Act is made by the Parliament. It is full and final. Parliament empowers the executive to suspend
certain provisions under certain circumstances if it satisfies.

Example: The Tea Act, 1953. Section 48 clause (1) of this Act empowers the executive to suspend the
operation of some or all of the provisions of this Act.

6. APPLICATION OF EXISTING LAWS

The executive is empowered by the Parliament to extend existing laws to new areas. In fact, it is not at
all a new legislation. The existing law is extended certain, to new area.

Rajnarain Singh v. Chairman, Patna Administration. Committee (AIR 1954 SC 569) The relevant
statutory provision provided that the Government could extend to a particular area any Section of the
statute (the Bihar and Orissa Municipal Act, 1922) subject to ‘such restrictions and modifications as the
Government may think fit’. The Supreme Court upheld that it is a delegation of power.
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7. MODIFICATION

Modification means a complete change of the provisions. Modification of the provisions of the statute
is an essential legislative function. This important function cannot be delegated to the subordinate
authorities. But in rarest of rare cases, the power of modification can be delegated by the Parent Act, if
the circumstances are necessitated.

Example: The power conferred by the Delhi Laws Act 1912, the central government extended the
application of the Bombay Agricultural Debtors Relief Act 1947 to Delhi. The Bombay Act was limited
in application to the agriculturalists whose annual income was less than Rs. 500 bu the limitation was
removed by the government.

9. REMOVAL OF DIFFICULTY CLAUSES (Henry VIII Clause)

Sometimes, the parent Act empowers the executive to remove or modify some clauses or sections of the
Parent Act, for the better application and force of it. It is called ‘removal of difficulty clauses’.

CIT v. Straw Products (AIR 1966 SC 1113): Power conferred to Central govt to make orders or issue
directions for removal of difficulty in working of an act

10. PUNISHMENTS

The parent Act delegates the administrators to legislate the punishment sections or rules, to enhance or
to decrease the punishment, subject to a maximum punishment prescribed by Parent Act.

Example: The Electricity Act, 1910. Section 37 of this Act empowers the Central Government to
legislate the punishments. However, it should not exceed the maximum prescribed punishment.

11. FRAMING OF RULES

Sometimes, the Parliament asks the executive to frame the rules for an Act and to submit it in draft form,
so that it can discuss, vote and decide and bring it in the statute shape. The rules, bye-laws, regulations,
etc. made by the executive shall be discussed in Parliament and then brought into operation.

IMPERMISSBIBLE DELEGATION

There are three Organs of a State. They are: (1) Legislature; (2) Judiciary, and (3) Executive. Legislature
legislates the necessary statutes Judiciary interprets the statutes and affords the justice Executive
administrates the State. These three departments are equal. There must be a reasonable and appreciable
coordination between them. Sometimes, each of such wings may override and enter into the other wings
with or without permission. Delegation of legislation is one of such overriding. Where the legislature
intentionally empowers, authorizes and delegates some of its legislative powers to its subordinates i.e
executive, it is called as Permissible Legislature or Delegated Legislature or Administrative Legislature
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or Subordinate Legislature. Where, the executive intentionally or accidentally encroaches the legislative
sphere without authorization, such encroachment is called the Impermissible Delegation

What are the impermissible delegation?

ESSENTIAL LEGISLATIVE FUNCTIONS CANNOT BE DELEGATED

The Constitution does not impose any restrictions regarding the delegation of legislative powers and
more particularly on the principle of Essential legislative functions cannot be delegated. This maxim is
not imposed by Constitution. It is formed by precedents and now, it is a well-settled principle that
‘Essential legislative functions cannot be delegated’.

The following points describe the circumstances in which essential legislative functions cannot be
delegated.

1. Repeal of law

Repeal of law is an essential function of the legislature. It cannot be delegated to the executive. However,
if the parent Act may authorize the subordinate authorities to repeal certain clauses or certain provisions
from the statute with effect from certain time, or, or on the happening of certain event. In fact it becomes
the conditional legislation. In such circumstances, the executive can repeal the provisions of the statute
to certain extent only.

2. Modification

Modification means a complete change of the provisions. Modification of the provisions of the statute
is an essential legislative function. This important legislative feature cannot be delegated. Even if it is
permitted, it can be done so in the rarest of rare cases only.

3. Exemption

Exemption of certain Sections from the statute means it is a change from the parent Act. Exemption is
also an essential function of the Parliament. It cannot be delegated to the executive However, it may be
permitted, if the parent Act permits and provides the guide lines in this effect.

4. Removal of Difficulties

Sometimes, the parent Act empowers the executive to remove modify some clauses or sections of the
Parent Act, for the better application and force of it. It is called the ‘Removal of Difficulty Clauses’.
This important legislative feature cannot be delegated. Under the veil of this clause, the executive should
not be allowed to enact “Henry VIII Clauses”
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5. Retrospective Operation

The Parliament can make the laws making them enforceable with retrospective effect, i.e., with back
date. This is the most important legislative feature. This important legislative feature cannot be
delegated. If the parent Act permits the delegated authorities, then they can legislate to that extent and
to that permission (State of T.N. vs. K. Sabanayagam (1998) 1 SCC 318)

6. Future Acts

To legislate future Acts is an essential feature of the legislature. This important legislative feature cannot
be delegated.

7. Imposition of Tax

Imposing of taxes on the citizens and persons is a very important feature and function of the legislature.
This important legislative feature cannot be delegated. However, the Parent Act may delegate the tax
laws after fully enacted, and with some guidelines to implement them with slight variations. This little
relaxation viz. to exempt a particular commodity from levy of tax etc. is upheld by the Supreme Court
in its various decisions. (Municipal Corporation Delhi vs. Birla Cotton Mills (AIR 1968 SC 1232):
Corporation of Calcutta vs. Liberty Cinema; etc.)

8. Offences and Penalty

Deciding an act as an offence, and fixing its liability, imposing the penalties, etc. are the essential
features and functions of the legislature. This important legislative feature cannot be delegated.
However, the parent Act may fix certain amounts as the maximum for certain offences, and may leave
to the discretion to fix the penalties below that maximum penalty. This relaxation may be allowed,

EXAMPLE: The Electricity Act, 1910 is the parent Act. Sec. 37 of this Act empowers the Central
Government to legislate the punishments. However, it should not exceed the maximum prescribed
punishment mentioned in the parent Act.

9. Ouster of Jurisdiction of Courts (removal, dismissal, Revoke)

Parliament is empowered to include the “ouster clauses” in the Parent Act. ‘Shall be conclusive
evidence’, ‘shall not be called in question in any court’, ‘shall not be called in question in any legal
proceedings whatsoever, etc. are called as the ouster clauses, which oust the judicial review. This is the
essential feature of legislature. This important legislative feature cannot be delegated.
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Delegated Legislation Conditional Legislation

In this, the subordinate authorities are delegated and In this, the subordinate authorities are not delegated to
empowered to legislate. legislate.
There is no such condition or contingency. It is contingent and conditional. It is only a time factor.
Upon reaching certain time or circumstance, the
readymade Act (legislated by legislature) is put into
motion or stopped.
The subordinate authorities use their ‘own discretion’ The subordinate authorities cannot use their
in making the legislation. discretionary power. It is their only duty to apply or
stop the law after fact finding (e.g. to inquire whether,
facts requiring operation of the Act exist).
4. The Supreme Court in Hamdard Dawakhana vs. Conditional legislation delegates power is that of
Union of India (AIR 1960 SC 1686): “Delegated determining when a legislative declared rule of
Legislation involves delegation of rulemaking power conduct shall become effective.
which constitutionally may be exercised by the
administrative agent.”
It is also called as Subordinate Legislation It is also called as Contingent Legislation.
Conferring law-making power to another body Bringing the law in force by another body without
having any law-making power
Involves law making Involves implementing the same
Framing supporting rules, guidelines, Method and satisfying conditions for execution of
notifications the law made

SUB-DELEGATION

When a statute confers some legislative powers on an executive authority and the latter further
delegates those powers to another subordinate authority or agency, it is called ‘sub delegation.’ Thus, in
sub-delegation, a delegate further. This process of sub-delegation may go through many stages.

MEANING: Sub-delegation means transfer of legislative power from a superior to a subordinate

authority, and from subordinate authority to his subordinate authority. As a general rule such sub-
delegation is not allowed. However, under certain circumstances sub-delegation is allowed. The
Supreme Legislature delegates legislative power to its subordinate authorities. Again, such subordinate
authorities delegate this legislative power to their subordinate authorities. It is called Sub-Delegation.
This sub- delegation of delegated legislation is emanated from the legal maxim ‘Delegatus non potest
delegare’ (A delegate cannot delegate). Sub-delegation can only be authorized in exceptional cases.
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EXAMPLE: Sec. 3 of the Essential Commodities Act, 1955 confers power on the Central Government.
Again, Sec. 5 of the said Act empowers the Central Government to delegate powers to its own officers,
or to the State Governments or their officers. The State Government may itself further sub-delegate
these powers to its officers or authorities.

PRINCIPLE: The principle of sub-delegation consists of two conflicting values, which inter circled
with each other. On one hand, emergency and necessity allows sub delegation of the power of delegated
legislation and on the other hand, it is emanated and controlled by the maxim ‘A delegate cannot
delegate’. Sub-delegation of a ministerial function, i.e. a function which does not require discretion is
the exception to the above legal maxim. This maxim applies to judicial matters, where discretion plays
an important role.

IN INDIA: India follows the Principles of England in this aspect in the similar way. In exceptional
cases and where the parent-Act permits the sub-delegation, then only it is followed and allowed.

Ganapati Singhji v. State of Ajmer (AIR 1955 SC 188)

Brief Facts: In this case, State of Ajmer enacted a statute, according to which the Chief Commission
was empowered to make the rules for the maintenance of fairs. Accordingly, the Chief Commission
made the rules and then entrusted all the duties to the District Magistrate, with an endorsement that they
may alter if he required. The petitioner contended that the sub-delegation of rule-making power or
alteration from the Chief Commissioner to the District Magistrate was ultra vires, as the parent Act
permitted only the Chief Commissioner.

Judgment: The Supreme Court quashed the orders of the District Magistrate, that sub delegation was
invalid.

DELEGATED LEGISLATION – CONTROL AND SAFEGUARDS

The object of the delegated legislation is to provide speedy, convenient, technicality, etc. to the general
public and lessen the workload of Parliament. It is a new venture in the 19th and developed in the 20th
century. Every rose has thorns. Like this, the delegated legislation also has certain defects. Blanket
powers are not given to subordinate authorities. Today the question is not whether delegated legislation
is desirable or not but what control and safeguards can be introduced so that power conferred is not
misused. Therefore, such vices can be controlled by the following ways.

Controls over the delegated legislation may be divided into three categories:

1. Judicial control
2. Legislative control
3. Other controls
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1. JUDICIAL CONTROL

Delegated legislation does not fall beyond the scope of judicial review, the courts often decide the
validity of the delegated legislation on the ground whether it is ultra vires or Intra vires to the parent
Act. The Courts have competent authority to interpret the Statutes. Regarding the Subordinate
Legislation, the Courts have the right to declare that purported exercise of delegated power is ultra vires.
The general theory of judicial control is called the doctrine of Ultra-vires. The Courts can only control
the legislative powers of the executive after the proposals have been duly promulgated as Acts of
Parliament or subordinate legislation. They can inquire whether any statutory procedure required for the
making of subordinate legislation has been complied with and on proof of non-compliance, can declare
such legislation invalid. In England and India, Judicial Control over delegated legislation is very
effective, efficient, impartial and welcome.

DOCTRINE OF ULTRA VIRES

Ultra Vires (Latin phrase) = Beyond the power. An act in excess of the authority conferred by law,
therefore becomes invalid. All the statutory powers are governed by the Doctrine of Ultra Vires.
Delegated legislation shall be held Ultra Vires by the Court, if such legislation goes beyond the scope
of the authority conferred by the statute and if it conflicts with the delegating statute, or if it is against
procedural aspects. An action of the authority is said to be Intra vires when it falls within the ambit of
the powers conferred on it, but ultra vires when it goes beyond the power conferred on it.

An act may be said to be ‘ultra vires’ when it has been done by a person or a body of persons which is
beyond his, it’s or their power, authority or jurisdiction. ‘Ultra vires’ relates to capacity, authority or
power of a person to do an act. It is not necessary that an act to be ultra vires must be illegal. The act
may or may not be illegal. The essence of the doctrine of ultra vires is that an act has been done in excess
of power possessed by a person. Delegated legislation does not fall beyond the scope of judicial review.

OBJECTIVE: The Doctrine of Ultra Vires applies both to public and private bodies. In the field of public
administration, it gives protection by enabling the Courts to put a full stop to excessive zeal on the part
of executives.

Constitutionality of Parent Act: If that which is passed into law, is within the scope of power conferred
on legislature and violates no restrictions on that power, the law must be upheld whatever a court may
think of it.

Constitutionality of Delegated Legislation: When there is clear violation of Constitutional provision

for of the Parent Act in the case of delegated legislation beyond reasonable doubt that the court should
declare it to be unconstitutional. Sometimes Parent Act may be Constitutional the enabling delegated
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legislation may be in conflict with some provision of the Constitution. For example, delegated
legislation may be in conflict with fundamental rights guaranteed by the Constitution.

Judicial control over delegated legislation is exercised by applying two tests (Kinds of Ultra Vires)

(a) Substantive ultra vires

(b) Procedural ultra vires.

I. SUBSTANTIVE ULTRA VIRES:

Substantive ultra-vires means that the delegated legislation has no substantive power under the
empowering Act to make the rules in question in other words it means that the delegate cannot make a
rule which is not authorized by the parent statute. Therefore, the delegated legislation may be held
invalid on the ground of substantive ultra-vires.

When an Act or legislation is enacted in an excess of power, conferred on the Legislature by the
Constitution, the legislation is said to be ultra vires the Constitution. On the same principle, when a
subordinate legislation goes beyond what the delegate is authorized to enact (and exceeds over conferred
on it by the Legislature), it acts ultra vires or if conflicts with the delegating Parent Act. This is known
as substantive ultra vires.

Substantive = Actual Law

The following are the circumstances of substantive ultra-vires, under which the courts can declare, quash
or set aside the delegated legislation:

1. Where the Parent Act is unconstitutional

2. Where parent Act delegates essential legislative functions
3. Inconsistency: Where delegated legislation is inconsistent with Parent Act.
4. Where delegated legislation is inconsistent with the general law
5. Where delegated legislation is unconstitutional
6. Unreasonableness.
7. Mala fide (Bad faith)
8. Sub-delegation.
9. Exclusion of judicial review.
10. Retrospective effect.

1. Where the Parent Act is unconstitutional

This is based on the maxim ‘Nemo det quod non habet’ (No one can pass a better title than what he has).
It means where the Parent Act itself is unconstitutional and invalid, the delegated legislation also
becomes unconstitutional and invalid. It is the first essential requirement of the delegation is that the
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Parent Act should be Constitutional and valid. Then only it can validly delegate its power to subordinate
authorities.

Chintaman Rao v. State of M.P. (AIR 1951 SC 118)

Brief Facts: State of Madhya Pradesh enacted a statute prohibiting the manufacture of beedis in areas
for certain periods. It also delegated the power to Deputy Commissioner to fix the periods and determine
the areas in their areas. Accordingly, the Deputy Commissioner announced certain areas as prohibited
for certain periods. The petitioner challenged it as unconstitutional and against the Article 19(1)(g).
Judgment: The Supreme Court upheld the contention of the petitioner and quashed the Parent Act and
also the delegated legislation.

2. Where Parent Act delegates essential legislative functions

Primary and essential legislative functions must be performed by the Legislature itself and they cannot
be delegated to any other of the State. In other words, under the scheme of our Constitution, a legislature
cannot create, constitute or establish a parallel Legislature.

3. Inconsistency: Where delegated legislation is inconsistent with the Parent Act.

Where the parent Act delegates one matter, and the subordinate authority legislates on another matter,
there arises inconsistency between the Parent Act and delegated legislation. Therefore, it is held
substantive ultra vires and the Courts may quash such delegated legislation. It is an accepted principle
that delegated authority must be exercised strictly within the authority of law. Delegated legislation can
be held valid only if it conforms exactly to the power granted.

Chandra Bali vs. Rex (AIR 1952 All 795)

Facts: The State enacted ‘The Northern India Ferries Act’. This Parent Act authorized subordinate
authorities to make the rules for the safety and maintenance of ferries. The subordinate authority made
the rules banning two miles distance from one ferry to another.

Judgment: The Court held that there was inconsistency with the Parent Act and the delegated
legislation, therefore it rejected the subordinated legislation. The rule was out of the scope of the
delegated power.

4. Where delegated legislation is inconsistent with the general law.

A subordinate legislation must be in consonance with general law, i.e. any other law enacted by the
Legislature. This is based on the principle that a subordinate or delegated legislation made by the
executive cannot be contrary to the law of the land. If the delegated legislation is inconsistent with the
general law of the land it will be struck down.
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Indian Council of Legal Aid & Advice v. Bar Council of India (AIR 1995 SC691)

The Court held the rule framed by the Bar Council of India barring enrollment of persons who are 45
years of age is invalid.

5. Where delegated legislation is unconstitutional

It is a general principle and phenomenon that all statutes including Parliamentary Acts must be in
accordance with the ‘Constitution of India’. If it is inconsistent with the Constitution, then such Act,
whether it is made by Parliament or subordinate authority, is liable to be set aside. Sometimes, the Parent
Act is constitutional, but the delegated legislation overrides the constitution. Then such delegated
legislation is liable to be set aside.

D. S. Nakara v. Union of India (AIR 1983 SC 130)

A pension scheme provided a higher pension to government servants retiring before a particular date
and lower pension to those retiring after this date. The Supreme Court held that the provision in violation
of Article 14, of the Constitution and was therefore invalid.

Dwaraka Prasad v. State of U.P. (AIR 1954 SC 224)

Brief Facts: The Essential Supplies (Temporary Powers) Act, 1946 was the Parent Act and the UP. Coal
Control Order, 1953 was the delegated legislation. Clause 4 (3) of the delegated legislation i.e Order,
1953 conferred absolute power upon the licensing authority to grant, or to refuse to grant renew or refuse
to renew, suspend, revoke, cancel or modify any license under the order. The said cause was in question
raised by the petitioner contending that it is violative of Article 19(1)(g) of the Constitution.

JUDGMENT: The Supreme Court admitted the contention of the petitioner and held that the parent Act
was constitutional, but the delegated legislation was unconstitutional, and set aside the U.P. Coal Control
Order, 1953.

6. Unreasonableness.

The test of unreasonableness has been applied in Britain to the bye laws made by a municipal
corporation. This rule is based on the presumption that the legislation never intended to give power to
make unreasonable rules and they are, therefore, ultra vires. de Smith explains this rule “there is no
reason or principle why a manifestly unreasonable statutory instrument should not be held to be ultra
vires on that ground alone…”. In USA delegated legislation can be challenged as unreasonable under
the due process clause of the Constitution. In India the doctrine of unreasonableness of delegated
legislation has been based on a firm ground, article 14 of the Constitution. When the delegated
legislation is found unreasonable and arbitrary, it is declared invalid. The delegated legislation may be
challenged on the grounds of unreasonableness and arbitrariness.
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Kruse v. Johnson (1898)2 QB 91

A rule was made by the delegated authorities, prohibiting any person from playing music or singing in
any public place or highway within fifty yards of any dwelling place. The Queen Bench quashed this
rule opining it was unreasonable.

Ajay Canu v. Union of India (AIR 1988 SC 430)

The court held that requiring the compulsory wearing of helmets by drivers of two-wheelers is not to be
unreasonable and arbitrary.

Dwaraka Prasad v. State of U.P. (AIR 1954 SC 224)

Validity Clause 4 (3) of the UP-Coal Control Order, 1953 was challenged. Under this clause license
authority was given power to grant, refuse to grant, renew or refuse to renew, suspend, revoke, cancel
or modify any license under the order for reasons to be recorded.

7. Mala fide (Bad faith)

It is also good ground to quash the subordinate legislation. When the subordinate or delegated legislation
is made by the administrative authority exercising its power mala fide or with an ulterior motive, It is
held to be ultra vires and, therefore, invalid. It is based on public policy. The mala fide must be present
on the face of the rule itself.

Lavjibhai v. Ramjibhai (AIR 1962)

The Supreme Court held that a writ would lie where the subordinate authorities act with mala fides and
illegally as in issuing a notification to cause unnecessary harassment to the citizen.

Narendra Kumar v. Union of India (AIR 1960 SC 430)

The Court struck down the delegated legislation, on the basis that the rulemaking authority has acted
mala fide or in bad faith.

8. Sub-delegation.

Delegatus non potest delegare (a delegate cannot further delegate his power). The power that has been
delegated originally may not be redelegated. The main constitutional objection raised against delegation
of rule-making power to administrative agencies has been the doctrine of the non-delegability of power,
which holds that power delegated to one branch may not be re-delegated to another.

Gullapalli Nageswara Rao v. APSRTC (AIR 1959 SC 308)

An Act had authorized the minister to hear the parties and pass the final order in certain situations. The
minister delegated the function of hearing to his Secretary, who heard the parties and prepared note to
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the Minister, who then passed the final order. The Minister’s order was struck down by the court, which
observed, “If one person hears and another decides, personal hearing becomes an empty formality.”

9. Exclusion of judicial review.

Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of the Courts to
review the delegated legislation. This is called an exclusion clause. Usually, such clause contains the
words ‘rules made shall have effect as If enacted or included in the Act Itself or ‘rules made shall not
be called in question in any Court’. The fundamental question here is whether such provision in the
statute would prevent judicial review delegated legislation under the statute.

Section 170 of the Representation of People Act, 1951 lays down that such exclusion cannot affect the
jurisdiction of the Supreme Court under Articles 32 and 136 or the High Courts under Articles 226 and
227 of the Constitution.

Institute of Patent Agents v. LockWood (1894 A.C.)

Lord Herschell observed that a clause to the effect that ‘the rules made under the statute shall have the
same effect as if they were contained in this Act’ would for all purpose mean that the rule would be part
of the Act and for all purposes one has to treat the rule exactly as if they were in the Act. This is known
as Herschel Doctrine.

Minister of Health v. King, [1931] AC 494

The Court has held that in spite of the exclusion clause, the delegated legislation can be reviewed by the
Court and can be declared invalid if it is found ultra vires the Enabling or Parent Act.

State of Kerala v. Abdulla and Co. (AIR 1965)

Validity of a rule whether it is declared to have effect as if enacted in the Act or otherwise is always
open to challenge on the ground that it is unauthorized”.

G.O.C v. Subhash Chandra Yadhava (1988) 2SCC 351.

Supreme Court ruled that an Act providing that rule made thereunder on publication in the official
gazette would be ‘as if enacted’ in the Act, cannot take away judicial review.

10. Retrospective effect.

Delegated legislation cannot have any retrospective effect unless such a power is conferred on the rule-
making authority by the parent Act. Sometimes a delegated authority while making subordinate
legislation tries to give retrospective effect to rules. The delegated legislation cannot be made
enforceable with retrospective effect as a general rule, unless and until the Parent Act permits it to do
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so. The legislature can always legislate prospectively as well as retrospectively subject to the provisions
of the Constitution.

The State of Madhya Pradesh v. Tikam Das (AIR. 1975 SC 1429)

The Court held that the delegated authority cannot use the power of retrospective effect for rules and
regulation formulated by it like the sovereign legislature unless the concerned Statute expressly or by
necessary implication confers power in this behalf.

Howell v. Falmouth Boat Construction Co. Ltd. (1951) AC 837)

A license was issued by an administrative authority and it provided that it would operate retrospectively
and cover things done before the license was issued. The House of Lords held this to be invalid.

II. PROCEDURAL ULTRA VIRES

While delegating its legislative powers to subordinate authorities, the parent Act prescribes certain
procedures to be followed. If a subordinate legislation fails to comply with certain procedural
requirements prescribed by the Parent Act or by the general law, it is known as procedural ultra vires.
The Parent Act or enabling statute may require the delegate to observe a prescribed procedure while
framing subordinate legislation. The subordinate authorities have to strictly adhere to the instructions
and requirements laid down by the parent Act.

There are two kinds of prescriptions by the Parent Act. They are: Mandatory provisions & Directory
Provisions. The Mandatory Provisions must be complied without any exceptions. The Directory
Provisions may be complied or may not be complied. Generally, non-compliance of directory provisions
does not vitiate the subordinate legislation, but non-compliance of mandatory provisions shall invalid
the subordinate legislation.

The usual procedures are (1) Consultation with particular bodies or affected Interests (2) Publication of
draft rules or bye-laws and (3) Laying them before Parliament. It is a duty upon the delegate to comply
with these procedural requirements.

Kinds of Procedural Ultra Vires

There are two kinds of procedural ultra vires. They are:
1. Publication
2. Consultation.
1. Publication
One of the fundamental principles of law is that ‘Ignorance of law is no excuse’ (ignorantia juris non
excusat). There is another equally established principle of law that ‘the public must have access to the
law and they should be given an opportunity to know the law’. The people should also be given the
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opportunity to know of the delegated legislations. Every citizen can question the concerned executive
or authority and get the relevant information. The publication GO, Rules, Notifications etc. is a part and
parcel of the principles of natural justice.
If the law is made and is kept in the almirahs of bureaucrats, then how the public could know Therefore
all laws, including every Act, Ordinance, GO, notification, order, etc. shall be published in India, still it
is not strictly followed. Speaking truth, this is the main and important cause of corruption in India. To
rectify it, after a long-standing struggle, the Parliament enacted The Right to Information Act, 2005.
Even though this Act is in force, now it is very tedious experience to get the information about the GOs,
notifications, etc. from the Government Departments. Solution for this problem is very easy. Now-a-
days, computer technology has been tremendously developed. As soon as a G.O. or any other
notification or order is issued by the Government, it can be placed in the internet, so that it easily and
immediately reaches the people.
In England there are sufficient and adequate Acts to make the publication compulsory. Such Acts are:
(a) The Rules of Publication Act, 1893; (b) The Statutory Instruments Act, 1946, etc.
In America: In America also, certain Acts are enacted: (a) The Federal Register Act, 1935; (b) The
Administrative Procedure Act, 1946; etc.
In India: Still now, there are no Acts for the publication of delegated legislation. The Right to
Information Act, 2005 is an instrument to get the delegated legislation. However, from time to time, the
Courts formulated certain principles and precedents, requiring the publication as an essential
requirement for the subordinate delegation.
Harla v. State of Rajasthan (AIR 1951 SC 467)
The Supreme Court, by applying principles of natural justice, held that its publication was necessary.
2. Consultation

While making the law the subordinate authorities shall consult with the persons whose interests affected
by such subordinate legislation. It is one of the measures to check and control the subordinate legislation.
The enabling statute may direct the delegate to consult the Government or statutory bodies or affected
interests before making any subordinate legislation. If the delegate makes a subordinate legislation
without consulting the named authority, the subordinate legislation may be declared procedural ultra
vires. Consultation does not mean consent or concurrence. Consultation is not complete unless the
parties thereto make their respective viewpoints known to others and examine relative merits of their
views.

In USA, the Administrative Procedure Act 1946, makes the necessary provision making consultation as
a necessary requirement. It is a mandatory provision there.

In England, there are no such enactments providing mandatory provisions for consultation.
Administrative Law – Unit II 35 Al – Ameen College of Law, Bangalore

In India, there are no enactments regarding compulsory consultations. The Parent Act may provide
consultation as a compulsory while making the subordinate legislation, then it should be strictly adhered.
In India the provisions for prior consultation made in the enabling Act may be grouped into the following
heads:

(i) Official Consultation

When the enabling statute directs the rule making authority to consult a named official authority, it is
known as official consultation. Section 52 of the Banking Companies Act, 1949 which requires the
Central Government to consult the Reserve Bank of India before making rules is an example of official
consultation.

(ii) Consultation with Statutory Boards

In certain statutes, the rule making power is conferred on the Government which can be exercised after
consulting some statutory bodies or boards.

Example: Sections 6 and 12 of the Drugs Act, 1940 empowers the Central Government to make rules
after consultation with the Drugs Technical Advisory Board.

(iii) Draft Rules by Affected interests

The Parent Act may confer the power to frame rules directly by the affected Interests. Section 61 of the
Mines Act 1901 is an example of such a provision. The Act provides for the constitution of Mining
Board to assist and advice the Central Government in making rules. The Mines Act confers the power
to frame rules for safety, discipline of employees and convenience on the owner of mines and such draft
rules have to be submitted to the inspector of Mines for approval. Without such consultation is liable to
be struck down as procedural ultra vires.

Banwarilal v. State of Bihar (AIR 1961 SC 849)

The Supreme Court held that the provision under the Mines Act, requiring consultation with the Mining
Board by the Government before framing regulations was mandatory. The rules, made without
consultation of the Board, was held to be ultra vires.

PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION

Delegated legislation proceeds from any authority other than the sovereign power and is, therefore,
dependent for its continued existence and validity on some superior or supreme authority. This
dependence can often take the form of checks and controls, namely, parliamentary or legislative control,
procedural control and judicial control. Thus, since it is the legislature which delegates power, it is
primarily for it to supervise and control the exercise of this power, and ensure against its objectionable,
Administrative Law – Unit II 36 Al – Ameen College of Law, Bangalore

abusive and unwarranted use. In Arvind Singh v. State of Punjab 1979 SCC, Krishna Iyer J. rightly stated
that parliamentary control over delegated legislation should be a living continuity as a constitutional
necessity. If the Parliament delegates legislative power to any authority example to the Executive, it
must also ensure that the powers are properly exercise by the administration and there is no misuse of
authority by the executive.

Two level control of delegated legislation:

i) Supreme Legislation: At the time of making Parent Act itself, the Parliament keeps the control of
delegated legislation

ii) Administration: At the time of exercise of delegated power by the administration, the parliament
keeps control of delegated legislation.

Object of Control:
• To keep watch over the rule making authorities
• To provide an opportunity to criticize them if there is abuse of power on their part (legislative Veto)
• To keep administrative agencies within the bounds of delegation.
Methods of Parliamentary Control over Delegated Legislation
There are various effective methods of legislative control over delegated legislation in most all the
Common Wealth countries, including India. These can be studied in two headings:
[Link] on Delegation
[Link] on the Table
3. Scrutiny Committees
1. Memorandum on Delegation
It is the parliamentary control of delegated legislation at the first stage of delegation. A parliamentary
rule stipulates that a bill containing a proposal to delegate legislative authority must be “accompanied
by a memorandum explaining such proposals and drawing attention of their scope and stating also
whether they are of exceptional or normal character”. The rule is of an informational nature. The Lok
Sabha committee on subordinate legislation has emphasized that the rule is mandatory and the
memorandum attached to a bill should give full report and effect of the delegation of power to
subordinate authorities.

[Link] on the Table

‘Laying on the Table’ means putting the subordinate legislation before the Parliament. The executive is
authorized to legislate by the supreme legislative authority. The law made by the subordinate authority
shall have to be submitted for the verification of the Parliament. It is called ‘Laying on the Table’.
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Objective

‘Laying on the Table’ is a check on the subordinate authorities. By it, the Sovereign could know what
the subordinate authorities did, how far it performed its duty, whether it exceeded its limits, etc.
necessary, it makes debate and voting. It also can question the subordinate authority if the defects and
excesses are found in the legislation

Direct General Control

Direct general control over delegated legislation is exercised in the following ways:

a) Debate on Act contains delegation: Members may discuss anything about delegation including
necessity, extent, type of delegation and the authority to whom power is delegated.

2. Questions and notices: Any member may ask questions on any aspect of delegation of legislative
powers, and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct
of business in Lok Sabha Rules.

3. Resolutions and notices in the house: Any member may move a resolution on motion if the matter
regarding delegation of power is urgent and immediate and reply of the government is unsatisfactory.

4. Vote on grant: Whenever the budget demands of ministry are presented, any member may propose
a cut and thereby bring the exercise of rule-making power by that Ministry under discussion.

5. Private Member’s Bill seeking modification in the parent Act, or through a debate at the time of
discussion on the address by the President to the joint session of Parliament, members may discuss
delegation. However, these methods are rarely used.

Direct Special Control

Among the methods of parliamentary control of delegated legislation, prominent one is the device of
‘laying on the table’, which requires that administrative legislation made under delegated authority be
presented to the legislature for approval.

Kinds of Laying on The Table

The Indian Law Institute reported about the kinds of ‘Laying on the Table’ in its book “Delegated
Legislation in India” basing on the Select Committee on Delegated Legislation. According to the Select
Committee, there are seven kinds of ‘Laying on the Table’. They are:-

i) Informal Laying: It is an informal manner. The parent Act has a clause to direct the subordinate
authority to lay the law before the Parliament. As soon as it is laid before the Table, it becomes operative.
Laying with no further direction, wherein the purpose is to simply inform the House.
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ii) Laying linked with postponement: The parent Act restricts the subordinate authority and gives more
control to Parliament. The law prepared by the subordinate authority first laid before Parliament and
until Parliament confirms the legislation, the operation of the law is postponed.

iii) Negative resolution procedure: The law made by subordinate authority is laid before Parliament.
As soon as it is laid before the Parliament, it becomes operative. It shall cease to have effect if the House
disapproves or annuls it.

iv) Laying in draft: In this method, first the parent Act provides clauses empowering the subordinate
authorities to make the law to submit them in draft form before the Parliament, and such rules and law
should not become into force until a particular and fixed date announced by the Parliament, In this
procedure, some qualities of ‘Conditional Legislation’ are mixed it is also one type of ‘Negative
Resolution Procedure’

v) Positive Resolution Procedure: The draft of law made by the subordinate authority shall first be
discussed, supervised and checked by the Parliament. Then only, it is liable to become the full force of
law. Therefore, this type of laying is known as ‘Positive Resolution Procedure’

vi) Laying with operation deferred until approval: It is also a positive resolution procedure. In this
kind, the rules are actually made. They are not draft. But they do not come into force until approved by
the Parliament. In fact, there is no difference between v and vi, except very slight variation

vii) Operation of Law + Affirmative Resolution: This type of delegation is seen in taxation or the law
in emergency. Laying of the law on the Table, its immediate Parliamentary supervision and also the
operation of it come into effect immediately.

Effect of Laying on the Table

In USA: The control of the Congress over delegated legislation is highly limited because neither is the
technique of “laying” extensively used nor is there any Congressional Committee to scrutinize it.

In England: The concept of parliamentary sovereignty, the control exercised by Parliament over
administrative rulemaking is very broad and effective. The Statutory Instruments Act, 1946 has been
enacted. This Act resolved that every delegated legislation becomes valid only after it is laid before
Parliament and approved. In England, A Joint Committee has been established under this Act.

In India, the position is not yet clear. So far, no Act like ‘The Statutory Instruments Act, 1945
(England)’ has been made in India. The Supreme Court laid down various propositions according to the
circumstances.
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Jan Mohd. v. State of Gujarat (AIR 1966 SC 385),

The Supreme Court held that when the Parent Act permits and makes the subordinate rules as valid, then
it is not necessary to lay on the Table.

Directions by the Speaker, Lok Sabha:

According to Direction 103 of Directions by the Speaker, Lok Sabha, the Lok Sabha Committee on
Subordinate Legislation may examine all legislative orders framed by the executive under the
Constitution or a statute whether laid on the table of the House or not.

SCRUTINY COMMITTEES

Scrutiny = A close investigation; a strict inquiry. An inquiry into the validity of the statutes made by
subordinate authorities. There are two Scrutiny Committees in India. They are

1. The Lok Sabha Committee on Subordinate Legislation

2. The Rajya Sabha Committee on Subordinate Legislation

Objectives: The Indian Law Institute’s book “Delegated Legislation in India” explains the object of the
establishment of Scrutiny Committees by the Parliament as follows: “They (Scrutiny Committees) act
as watch-dogs, which bark and arouse their master (Parliament) from slumber when they find that an
invasion on the premises has taken place”.

Purpose: The purpose of the Scrutiny Committees is to scrutinize and report to the respective House
whether the powers to make regulations, rules, sub-rules, bye-laws, etc., conferred by the Constitution
or delegated by the Parliament are being properly exercised within such delegation.

‘Laying on the table’ may sometimes not be useful effectively in controlling the delegated legislation.
Under such circumstances, the Scrutiny Committees come into rescue, and fill up the lacunae.

1. The Lok Sabha Committee on Subordinate Legislation:

There shall be 15 Members. All of them shall be appointed by the Speaker of the Lok Sabha. They are
appointed from all the parties. Their duration is only one year, so that all the political parties in the
House represent it. The Chairman of the Committee shall be appointed from the Opposition Parties. The
Ministers are not eligible to become the members of the Scrutiny Committee. Unanimous decisions are
generally adopted. The members are not permitted to invoke their parties’ policies.

2. The Rajya Sabha Committee on Subordinate Legislation:

It also consists 15 Members from all the parties. The Members and the Chairman of the Scrutiny
Committee are appointed by the Chairman of the Rajya Sabha. A Minister can also become as a member
Administrative Law – Unit II 40 Al – Ameen College of Law, Bangalore

in this Scrutiny Committee. The duration of the Committee is that it will continue until a new Committee
is formulated by the Chairman.

Functions:

The functions of both these two Committees are to scrutinize regulations, rules, orders, etc. laid before
the House and to consider. Rule 320 of the Lok Sabha Rules, which are mentioned hereunder, gives a
clear idea regarding the functions of the Committees. Some of the functions of the Scrutiny Committees
are:
1. Whether the Order is in accord with the general object of the Constitution or the Act
2. Whether it contains any matter which should more properly dealt within the Act
3. Whether it contains imposition of any tax.
4. Whether it directly or indirectly bars jurisdiction of the Courts,
5. Whether it gives retrospective effect to any of the provisions in respect of which the Constitution
6. Whether it involves expenditure from the Consolidated Fund of India or the public revenues:
7. Whether any unusual or unexpected use of the powers conferred by the Constitution or the Act
8. Whether there has been unjustifiable delay in its publication or in laying it before Parliament
9. Whether for any reason it requires further elucidation.
OTHER CONTROLS

 To properly and precisely limit the power of the delegate defined in the parent Act
 The court also should interpret the provisions of the rules and regulations in such a manner as not to
give blanket powers to the executive authority.
 Delegation of power should be conferred only on trustworthy authorities
 Eg: In Maneka Gandhi v. Union of India, 1978: Supreme Court has observed it is true that when the
order impounding a passport is made by the central government, there is no appeal against it, but it
must be remembered that in such a case the power is exercised by the central government itself and
it can safely be assumed that the central government will exercise the power in a reasonable and
responsible manner. When power is vested in a high authority like the central government, abuse of
power cannot be lightly assumed.
 Certain Central Acts provide some additional safeguards such as they empower the State
Governments to frame rules, but prior approval of the Central Government is necessary, example
Section 17 of the Probation of Offenders Act, 1958.
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ADMINISTRATIVE DIRECTIONS

Administrative directions are in the nature of instructions which are issued by the government to the
various departments. Generally administrative directions are issued by the Superior Officers to their
subordinates and contain guidelines for exercise of powers. The executive function comprises both the
determination of the policy as well as carrying it into execution. As the governmental functions have
increased, it is necessary for the government to issue Administrative directions for the determination of
policy and its uniform application. In this way directions are issued for a variety of purposes. These
directions are generally issued when there is an absence of certain important rules regarding some issues
or in order to create better standard of rules when there are lacunas in the existing laws and statutes. The
various mechanisms used in issuing such directions are letters, circulars, orders, memoranda, pamphlets,
public notices, press notices and sometimes even as a notification in the government gazettes.

The Administrative directions has its genesis in Article 73 and 162 of the constitution. These two articles
deal with the administrative powers of the Union and State level government and the directions are
generally issued under it.

Article 73 talks about the executive power of the Union, extending to the matters in which Parliament
has rights to make laws

Article 162 talks about the executive power of the State, extending to the matters in which the state
legislature has power to make laws.

Above mentioned provisions mentioned about the executive powers of government to issue directions
and does not talk about statutory powers.

Administrative directions and Delegated Legislation:

Distinction between the directions and delegated legislation is, at times, denoted by designating
directions as ‘administrative quasi-law’ or ‘administrative quasi- legislation’

Delegated Legislation can be made only when the authority concerned has statutory power to do so.
However, statutory power is not required for issuing directions. Generally, directions are issued under
general administrative power of the government, although, sometimes statutory power may also be given
to issue directions.

Delegated Legislation is binding on both the administration and the individual. It is enforceable through
the Court at the instance of either the individual or the administration. On the other hand, a direction is
generally not so binding and enforceable. Barring a few exceptional cases, a direction does not confer
any enforceable right on the individual or impose an obligation on any person or body.
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Identification of Direction

Government legislations may be classified as either delegated legislation or directions.

 State of UP v. Kishori Lal, (AIR 1980, SC 680)

Supreme Court held that UP Excise Rules were administrative instructions because they never published
in the official gazette as required under the Statute.

 Fernandez v. State of Mysore (AIR 1967, SC1153)

The Supreme Court characterized the Mysore P.W.D. code as containing only ‘executive instructions’
as the code had been issued by the Government not under any statutory authority under its general
administrative powers.

 Kharak Singh v. State of U.P. (AIR 1963, SC1295)

The Supreme Court observed that Chapter XX of the U.P. Police Regulations as administrative
instructions.

Whether a particular piece of government legislation is ‘delegated legislation’ or ‘direction’ may

be determined on basis of the following factors:

• If it discloses the statutory provision under which it has been made, then should be regarded as a
‘rule’

• As to direction it is not essential to disclose the statutory provision under which it has been made.

• A piece of government legislation may be regarded as a ‘rule’ if it has been made under a specific
statutory provision which authorizes to do so.

• A piece of government legislation may be regarded as a ‘direction’ if it has been issued under a
specific statutory provision which has authorized to do so.

Kinds of direction

Directions may be specific or general, directory or mandatory. A specific direction is one which is
applicable to a particular purpose or a particular case. But a general direction lays down general
principles, policies, practices or procedures to be followed in similar cases.

Distinction between Direction and Rule

Rules are made under the statutory powers conferred by the legislature. Rules are legislative in nature
and are enforceable. Directions are administrative in character and not ordinarily enforceable. The
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government may change directions at any time without much formality. Directions are less formal than
rules. A direction can be amended by issuing another direction.

RULE ADMINSTRATIVE DIRECTIONS

Rule is a law and has binding force. Administrative direction is not law. It has no
binding force
Rule has been recognized as law, as per Article It has no such type of force.
13 clause (3) sub-clause (a) of Constitution.
Rules are the supplement to the Acts. Administrative directions may supplement the
rule, but they cannot supplant them.
These are issued by the supreme legislation or These are issued by higher authority to lower
subordinate legislation. authority or to public.
A rule cannot be amended by administrative An administrative direction can be amended by
instruction rule.
The rules may be framed by legislature, judiciary It is purely administrative.
and administrators.
Rule is superior to Administrative direction Administrative direction is inferior to rule.
Enforceability of Directions

The power to issue directions flow from the general executive power of the administration. They can be
specific, general, directory and mandatory. And the given instruction is of what kind it depends on the
provisions of statute which is authorizing the administrative agency to issue such directions. Though
these administrative directions are not enforceable in court of law but their noncompliance may
command certain disciplinary actions.

 Fernandez v. State of Mysore (AIR1967 SC 1753)

The Court held that regarding enforceability of Administrative directions that PWD instructions are
unenforceable as they are not issued under any statutory authority but are issued under general
administrative power. However, these instructions are non-enforceable but their noncompliance may
lead to disciplinary actions towards the concerned officer.

 Jagjit Singh v. State of Punjab (AIR 1978 SC 988)

Supreme Court held that if administrative instructions are in consonance with the statutory rule, they
become binding and can be enforced by court of law.

 Amitabh Srivastava vs. State of M.P, (AIR 1982 SC 827): Critical Judgement

The court held that the administrative directions can modify statutory rules too and thus allow
enforcement of directions over rules.
Administrative Law – Unit II 44 Al – Ameen College of Law, Bangalore

 Union of India v. Charanjeet S. Gill ((2000)5 SCC 742)

 The Court stated that Administrative instructions issued in the absence of any statutory authority
has no force of law, and it cannot supplement any provision of law, rules acts and regulations.
 These directions provide government with the power to fill up gaps which are there in the present
rules and laws.
 Administrative directions cannot take away rights vested in the persons governed by the act if
they do not have any statutory backing.

Need for Administrative Instruction

The need to resort to administrative direction and also delegated legislations arises because of the wide
discretion that has been conferred on the executive by statutes to deal with the peoples’ problems in a
welfare state. There are several reasons for the device of administrative directions being preferred over
statutory rules; certain formalities such as laying before the parliament, prepublication, consultation of
affected interests, publication in the gazette may be perquisites for promulgation of rules. Such
prerequisites do not exist for issuing administrative directions and consequently, they are easy to change
and issue. Further, administrative directions may have to be issued and useful, in the event of a
completely new kind of problem having to be dealt with, without any past experience. The trial and error
method may in fact be necessary to allow for rules having some stability later. Till the problem has been
dealt with for an adequate duration, the guidelines for administrative action could be laid down through
administrative instructions which can be changed or modified based on the gained experience. The
issuance of directions where principles for the exercise of power could be laid down with some degree
of stability is an anomaly. Instructions may be relied on when the exigencies or the scenario is fluidic
and subject to rapid change. Thus, principles for the exercise of power must be stated with precise
articulation and have to be in a state of quick changes. Lastly, a temporary situation could preferably be
dealt with through directions rather than rules.
Administrative Law – Unit II 45 Al – Ameen College of Law, Bangalore

REFERENCES

• U.P.D. KESARI, ADMINISTRATIVE LAW (Central Law Publication 2017).

• K.C. JOSHI, AN INTRODUCTION TO ADMINISTRATIVE LAW (Central Law Publication

2019).

• S. P. SATHE, ADMINISTRATIVE LAW (7 ed. LexisNexis 2012).

• I. P. MASSEY, ADMINISTRATIVE LAW (9 ed. EBC 2018).

• C. K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW (4 ed. EBC 2010).

• C. K. THAKKER, ADMINISTRATIVE LAW (2 ed. EBC 2012).

• J. J. R. UPADHYAYA, ADMINISTRATIVE LAW (7 ed. Central Law Agency 2011).

• GADE VEERA REDDY, THE ADMINSTRATIVE LAW (Sujatha Law Books 2011).

• M.P. JAIN AND S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, (6th ed. LexisNexis
2010).

• Study Material for Administrative Law, KLE SOCIETY’S LAW COLLEGE, (Dec. 02, 2022,
05:05 PM), [Link]

COMPILED BY: SUBIN THOMAS

(28/12/2022)