DELEGATED LEGISLATION

Administrative Law
 INTRODUCTION

• In contrast to this increasing legislative activity, the legislatures are not able to find adequate
time to legislate on every minute detail.
• They have limited themselves to policy matters and have left a large volume of area to the
Executive to make rules to carry out the purposes of the Legislature.
• In such types of situation, the system of delegated legislation comes to our mind. i.e law
making that takes place outside the legislature and is expressed as rule,
regulations, orders, bye-laws, directions, scheme etc.
• This delegation is also known as ‘secondary legislation’ or ‘subordinate legislation’.
• The Act that gives the executive the power to legislate is called the ‘Enabling Statute’ or
‘Parent Act’. It allows the bodies beneath the legislature to make laws according to the
requirement.
• The important object of this is that any legislation by such delegation should be
according to the objectives as laid down in the Act.
 MEANING

• ‘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’ 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, can allow someone else or some body to make enactment. An Act
of Parliament makes the system of a specific or particular law and tends to contain an outline of the
purpose for the Act.
• By delegating the legislation to the Executive or any subordinate, it empowers different
people or bodies to integrate more details to an Act of Parliament.
• The numbers: From 1973-77, total of 302 laws passed by Parliament. Number of statutory orders and
rules passed in the same period: 25,414. (quoted in Avinder Singh v State of Punjab).
 ACCORDING TO SIR JOHN SALMOND,

“SUBORDINATE LEGISLATION IS THAT WHICH

PROCEEDS FROM ANY AUTHORITY OTHER THAN THE
SOVEREIGN POWER.”
 ACCOR DI NG TO M. P. J AI N,
T H E T E R M I S USE D I N T WO DI FFE R E NT SE NSE S:

“TO E XE R C I SE T H E L E G I SL AT I V E P OW E R B Y SU B O R D IN AT E AG E N T S ,

OR

TH E SU BSI D I ARY R UL ES TH EM SELVES W H ICH AR E M AD E BY TH E SUBO R D IN AT E

AU TH O R ITY IN P U R SU A N CE O F T H E P OW E RS C O N F E R RE D O N I T B Y T H E
L E G I SL AT U RE ” .
 ACCOR DI NG TO H AL SB URY

“W H E N AN I NST RUME NT OF A L E G ISLATI V E NATUR E I S MADE

B Y AN AUT H OR I T Y I N E XE R CISE OF P OW E R DE L EGATED OR
CONFE R R E D BY T H E L E G ISLAT UR E, I T I S C AL L E D
SUB OR DI NATE L E GI SLATI ON OR DE L EGATED L E G ISLATION.”
 Example of Delegated Legislation

T H E E S S E N T I A L C O M M O D I T I E S AC T, 1 9 5 5 , S TAT E S T H AT,

C E N T R A L G OV E R N M E N T I S E M P OW E R E D TO D E C L A R E A N Y
C O M M O D I T Y A S E S S E N T I A L C O M M O D I T Y.

T H U S , T H E S TAT U T E D E L E G AT E D I T S P OW E R TO T H E C E N T R A L
G OV E R N M E N T.
• Income Tax Rules: The Income Tax Act of India lays down the broad principles and provisions for taxation.
However, detailed rules regarding tax assessment, exemptions, filing procedures, etc., are formulated by the
Central Board of Direct Taxes (CBDT) under the authority provided by the Income Tax Act. These rules
provide specific guidelines on how the provisions of the Act are to be implemented in practice.
• Environmental Protection Regulations: The Environment (Protection) Act empowers the Central
Government to take measures to protect and improve the quality of the environment. Under this Act,
various rules and regulations have been framed, such as the Environmental Impact Assessment (EIA)
Notification, which lays down procedures for obtaining environmental clearance for various development
projects.
• Banking Regulations: The Reserve Bank of India (RBI) Act provides the legal framework for banking
regulation in India. However, detailed regulations governing aspects such as capital adequacy, lending norms,
anti-money laundering measures, etc., are formulated by the RBI through various notifications, circulars, and
guidelines issued to banks.
 NEED FOR DELEGATED LEGISLATION

• Parliamentary time:
The area, scope, or horizon of state activities are expanding day by day and it is difficult for the Parliament to
make laws on each and every matter. 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.
• Technical nature: (see various RBI, SEBI Rules)
With the progress and advancement in society, things have become more complicated and technical. So to
understand the technicality of each and every topic, legislature needs the expert of that particular area who
is well aware of each and every detail of that matter. Therefore, after framing policies by the parliament on
any topic, that topic is given to the government department or any particular person who knows about the
technicalities of that aand given the power to lay down the details.
 NEED FOR DELEGATED LEGISLATION

• 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. Also, Parliament cannot foresee the contingency while
enacting a law so to make it foresee the workload is being given to the executives.
• Experiment:
The practice of delegated legislation enables the Executive to experiment. This method or approach permits
the utilization of experience and implementation of the necessary changes in the application of the provision
made by the Parliament. The advantages of such a course is that it allows the delegated authority to consult
the interest of people at the ground level that what type of law is affecting them and then he makes an
experiment by altering the provisions. For example, in traffic matters of the road, certain rules may be
implemented for some time and could be removed if not effective.
 NEED FOR DELEGATED LEGISLATION

• Emergency:
The legislature is not equipped with the skills of providing an urgent solution to meet the situation of
emergency. Delegated legislation is the only way to meet that situation. Therefore, in times of emergency an
executive is given wide power to deal with that situation. Some examples of delegation in England during the
First and Second World War are the Defence of the Realm Act 1914-15, the Emergency Power Act, 1920, etc.
Similarly, in the case of inflation, flood, epidemic, economic depression, etc. immediate remedial actions are
necessary.
• Complexity of modern administration:
Modern administration used to take added responsibilities when it came to upraise the condition of the
citizens such as looking after their employment, health, education, regulating trade, etc. Therefore, the
complexity in modern administration and expansion of states’ function to the social sphere and economic
have allowed the formation of a new form of legislation and to give wide powers to various authorities on
various occasions.
 SABRIMALA

• Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

• The Act provides that places of public worship which are open to Hindus shall be
open to all sections and classes of Hindus.
• Further, Section 4 of the Act bestows the power to make regulation for the
particular temple with the authority in charge of a public place, which, in this case,
is the Sabarimala temple’s authority. A proviso to the section stipulates that no
regulation made under it shall discriminate against any Hindu for belonging to a
particular class or section.
• Rule 3(b) made by the state legislature under Section 4 laid down that women shall
not be entitled to offer worship in any place of public worship at such time during
which they are not allowed by custom and usage to enter the place.
 DECISION ON DELEGATED LEGISLATION

• Does the phrase “all classes” under the Act include “gender”? By Majority:Yes.
• The fundamental objective of this act was to bring social reform in the society and do away with all kinds of
exclusionary measures practiced in Hindu temples in Kerala. The bench concluded that the act was applicable
to women and was intended for their benefit.
• J. Misra (para 137) observed that when the rule making power is conferred under any statute on an authority,
the said power has to be exercised within the ambit of the statute.
• J. Chandrachud (para 90) further remarked that Rule 3(b) was in direct contravention to the proviso of
Section 4 as it discriminated against a class or section of Hindus. Additionally, all three concurring opinions
noted that the impugned rule violated Section 3, a non-obstante clause, as well as defeated the intentions of
the legislature as it discriminated against a suppressed class instead of emancipating it. Therefore, Rule 3(b)
was struck down for being ultra vires of the parent act.
 CRITIQUE

• Abandonment of legislative function by the Legislature and enhancement of

powers of Administrative: Democratic Legitimacy. Instead of various
advantages, delegated legislation has weakened the legislative control executive.
• Executive lacks accountability and hence, them being able to affect the life,
liberty and property of individuals without democratic restraints is
problematic.
• Parallel legislative body: Contravention of Separation of Powers.
• It is not stable in nature, it keeps on fluctuating on the ground of Political
changes.
 CONSEQUENTIAL SCOPE OF
DELEGATION

• All governmental legislative power must be channeled through parliament to achieve

legitimacy.
• Therefore, the delegated authority must be dependent on the supreme legislative
authority for its existence.
• This scope outlines the parameters within which the delegated authority can operate
and the limitations imposed on its exercise.
• Understanding the consequential scope of delegation is essential in ensuring that
delegated bodies exercise their authority appropriately and within the intended
legislative framework.
Key aspects of the consequential scope of delegation include:

• Specific Powers Granted: The primary legislation should clearly specify the powers delegated to the
subordinate body. These powers may include the authority to make rules, regulations, orders, or
decisions on specific matters within the subject area covered by the primary legislation.
• Purpose and Objectives: The delegation should be accompanied by a clear statement of the purpose and
objectives for which the authority is being delegated. This helps ensure that delegated bodies
understand the legislative intent behind the delegation and exercise their powers accordingly.
• Limitations and Conditions: The primary legislation may impose limitations, conditions, or procedural
requirements on the exercise of delegated authority. These could include requirements for
consultation, parliamentary scrutiny, or adherence to specified principles or criteria.
• Subject Matter and Scope: The delegation should define the subject matter and scope within which the
delegated body can make decisions or regulations. This ensures that delegated authority is exercised
within the intended boundaries and does not exceed the mandate granted by the primary
legislation.
• Discretionary vs. Mandatory Powers: The primary legislation may confer discretionary powers, where the
delegated body has some flexibility in decision-making, or it may impose mandatory duties that must be fulfilled.
Clarity on the nature of the delegated powers helps ensure consistency and accountability in
decision-making.
• Review and Oversight Mechanisms: Mechanisms for review, oversight, and accountability should be
established to monitor the exercise of delegated authority and address any concerns regarding its
misuse or overreach.
 CONSEQUENTIAL SCOPE OF DELEGATION
• “four corners of the delegation”
• The grounds on which you can challenge delegated legislation (Indian Express v Union of India):
• Ultra Vires the Delegating Statute: Delegated legislation can be challenged if it goes beyond the
powers granted by the enabling Act (the statute that delegates authority to make rules or regulations).
• In Indian Council of Legal Aid & Advice vs. Bar Council of India, 1955, 1995 AIR 691 rule was framed by
bar council barring enrolment as advocate of person who had completed 45 years of age.
• However, Parent act only enabled bar council to lay down conditions subject to which an advocate shall
have right to practice. Thus, the rule was held to be inconsistent with the parent act.

• Ultra Vires the Constitution: Delegated legislation must comply with the provisions of the Indian
Constitution. If it violates any constitutional provision, such as fundamental rights or the division of
powers between the central and state governments, it can be challenged as ultra vires the Constitution.
• Air India vs. Nargesh Meerza, where a regulation was framed by Air India providing that service of an air
hostess will be terminated on her first pregnancy, this was held violative of Article 14 of Constitution.
 CONSEQUENTIAL SCOPE OF DELEGATION
• Ultra Vires some other Statute of India: If the delegated legislation is inconsistent
with or contravenes another statute in force in India, it can be challenged on this
ground.
• Kartar Singh v. State of Punjab (1994). certain provisions of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA) was challenged on various
grounds, including that they were ultra vires the Constitution and inconsistent with the
Code of Criminal Procedure, 1973 (CrPC). The Court's decision emphasized the
importance of ensuring harmony and coherence within the legal framework and
upholding fundamental principles of procedural fairness and due process, even in
special laws enacted to address specific concerns such as terrorism.
• Something considered Unreasonable (Article 14 – arbitrariness test):
Delegated legislation can also be challenged if it is considered unreasonable or
arbitrary, particularly in violation of Article 14 of the Indian Constitution, which
guarantees the right to equality. The arbitrariness test examines whether the delegated
legislation is arbitrary, discriminatory, or lacks a rational basis.
 HISTORY

• UK
• Doctrine of Parliamentary Sovereignty; which holds that Parliament is the supreme legal authority and can make
or repeal any law.
• Henry VIII Clauses:
A Clause, refer to provisions in legislation that grant ministers the power to amend or repeal primary legislation (Acts of
Parliament) without the need for further parliamentary scrutiny. Henry VIII Clauses are controversial because they allow ministers
to exercise legislative powers traditionally reserved for Parliament, potentially undermining parliamentary sovereignty and
democratic accountability.
• History – Statute of Proclamation, 1539, under which King Henry VIII was given powers to legislate by way of proclamations.
• Article 372 of the Indian Constitution:
• “(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of
this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in
the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not
be questioned in any court of law.
 UK: COMMITTEE ON MINISTERS’
POWERS (1932)

• “the delegation of legislative powers is legitimate for certain purposes, within

certain limits, and under certain safeguards. It is plain that it is in fact
inevitable.”

• Suggestion: “The precise limits of the law-making power which Parliament

intends to confer on a Minister should always be expressly defined in clear
language by the statute which confers it.”
• In addition, the report saw two defects in the current Parliamentary
system:
• The free delegation of law-making powers, and
• The non-availability of an effective machinery to oversee the exercise of delegated
powers.
• Hence, suggested setting up a Standing Committee in each House to:
• Look through legislation that delegates, and
• Look through delegated legislation.
 THE UNITED STATES

Constitutional Framework:
• Article I Section 1
All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives.
• Article. II. Section. 1.
The executive Power shall be vested in a President of the United States of America.
• Article. III. Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish.
 DELEGATED LEGISLATION IN THE US

• In theory: Strict adherence to Separation of powers

• Delegatus non potest delegare; is a latin maxim which mean that "no delegated powers can be
further delegated".
• Exception to Delegatus non potest delegare: Where a statute has itself authorized the
subordinate authority to further delegate its power, then no question arises as to the validity of
delegated legislation.
• In India in the case of Central Talkies Limited vs. Dwarka Prasad, (1961)where the U.P
control of rent and eviction act stated that no suit shall be filed for the eviction of tenant
without the permission of District Magistrate or any other person authorised by him, the power
to further delegate wads challenged on ground of excess delegation. Court held that since the
power to further delegate arises from the statue itself, hence it is not excess delegation.
• However, inevitability of delegation was soon recognized. The New Deal acted as a tipping point.
A balance was sought between separation of powers and growth of governmental functions
 FIELD V CLARK (1892)

• Background:
• In 1890, Congress passed the Tariff Act of 1890, also known as the McKinley Tariff Act. The Act authorized the
President to impose tariffs on certain goods imported into the United States based on reciprocal trade
agreements with foreign countries.
• The validity of the McKinley Tariff Act of 1890 questioned, gave the President the power to suspend the
provisions of an act relating to the duty free introduction of certain goods in the United States.
• There were multiple suits filed by importers to obtain a refund of duties, claimed to have been illegally
obtained on imported merchandise under the Tariff Act approved October 1, 1890.
• Several import businesses, including Marshall Field & Co., the defendant, argued that the tariff represented an
unconstitutional delegation of legislative power to the President.
• “Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by the Constitution”- Non-delegation
Doctrine
• Key Issue:
• The main issue in Field v. Clark was whether Congress could delegate its authority to regulate foreign
commerce, specifically the power to impose tariffs, to the President?
 FIELD V CLARK (1892)
• Arguments:
• The plaintiffs argued that the delegation of tariff-setting authority to the President violated the Constitution's non-delegation
doctrine, which holds that Congress cannot delegate its legislative powers to another branch of government.
• The defendants, representing the government, contended that Congress had not abdicated its legislative responsibility but
merely provided guidelines and criteria for the President to follow in negotiating and implementing reciprocal trade
agreements.
• Judgment:
• The Supreme Court, in a unanimous decision, upheld the constitutionality of the delegation of authority to the President
under the Tariff Act of 1890. The Court held that Congress had not impermissibly delegated its legislative power but had
instead provided specific standards and conditions under which the President could exercise his authority to impose tariffs.
The Court reasoned that Congress's delegation of authority to the President was a valid exercise of its power to regulate
foreign commerce.
• In this case there was no delegation of power since "what the President was required to do was simply in
execution of the act of Congress. It was not making of the law”
• Significance:
• Field v. Clark established an important precedent regarding the scope of Congress's power to delegate legislative authority to
the executive branch. The Court's decision upheld a broad interpretation of Congress's authority to delegate powers to the
President, provided that Congress provides adequate standards and guidelines for the exercise of such powers. This case
contributed to the development of the "intelligible principle" test, which remains the prevailing standard for assessing the
constitutionality of delegated legislative authority in the United States.
• “That Congress cannot delegate legislative power to the President is a principle
universally recognized as vital to the integrity and maintenance of the system of government
ordained by the Constitution.
• The Act of October 1, 1890, in the particular under consideration, is not inconsistent with that
principle. It does not in any real sense invest the President with the power of
legislation… Congress itself prescribed in advance the duties to be levied, collected, and paid
on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country
while the suspension lasted.
• “As the suspension was absolutely required when the President ascertained the existence of a
particular fact, it cannot be said that in ascertaining that fact, and in issuing his proclamation in
obedience to the legislative will, he exercised the function of making laws. Legislative power
was exercised when Congress declared that the suspension should take effect upon
a named contingency. What the President was required to do was simply in
execution of the act of Congress. It was not the making of law. He was the mere
agent of the lawmaking department to ascertain and declare the event upon which
its expressed will was to take effect.”
• “The legislature cannot delegate its power to make a law, but it can
make a law to delegate a power to determine some fact or state of
things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. There are
many things upon which wise and useful legislation must depend which cannot
be known to the lawmaking power, and must therefore be a subject of inquiry
and determination outside of the halls of legislation.

• Hence, upheld the vires of the Act in question.

 PANAMA REFINING CO V RYAN (1935)

• Facts: New Deal Legislation. § 9(c) of title 1 of the National Industrial Recovery Act provided:
• “(c) The President is authorized to prohibit the transportation in interstate and foreign
commerce of petroleum and the products thereof produced or withdrawn from storage in
excess of the amount permitted to be produced or withdrawn from storage by any State law or
valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly
authorized agency of a State…”
• Section 1 of the Act: Policy of Congress
• "to remove obstructions to the free flow of interstate and foreign commerce which tend to
diminish the amount thereof;"
• "to provide for the general welfare by promoting the organization of industry for the purpose of
cooperative action among trade groups;"
• "to induce and maintain united action of labor and management under adequate governmental
sanctions and supervision;“
• “to eliminate unfair competitive practices, …”
 PANAMA REFINING CO V RYAN (1935)

• The President issued the foregoing prohibition by Executive Order, and then authorized the
Secretary of Interior to exercise all of the powers vested in the President under Section:9(c).
• The Secretary of Interior then issued regulations to carry out the President’s orders, which
required all petroleum producers to file monthly statements, under oath, with the Division of
Investigations of the Department of the Interior.
• Further, the President approved a “Code of Fair Competition for the Petroleum Industry,” and
designated the Secretary of Interior with all of the powers vested in him under the Act and the
Code.
• Section:9(c) was challenged on the ground that it was an unconstitutional delegation of legislative
power by Congress.

• Issue: Whether S 9(c) delegated legislative power to the President?

 DECISION

• “Section 9(c) does not state whether or in what circumstances or under what conditions the President is to
prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the state's
permission. It establishes no criteria to govern the President's course. It does not require any finding by
the President as a condition of his action. The Congress in § 9(c) thus declares no policy as to the
transportation of the excess production. So far as this section is concerned, it gives to the President an
unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as
he may see fit.
• On the insufficiency of the policy declaration in the title of the Act: “this broad outline is simply an introduction of
the act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent
sections.”
• “The question whether such a delegation of legislative power is permitted by the Constitution is
not answered by the argument that it should be assumed that the President has acted, and will
act, for what he believes to be the public good. The point is not one of motives, but of
constitutional authority, for which the best of motives is not a substitute.
• “The Congress manifestly is not permitted to abdicate or to transfer to others the essential
legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to
complex conditions involving a host of details with which the national Legislature cannot deal
directly. The Constitution has never been regarded as denying to the Congress the necessary
resources of flexibility and practicality which will enable it to perform its function in laying down
policies and establishing standards, while leaving to selected instrumentalities the making of
subordinate rules within prescribed limits and the determination of facts to which the policy as
declared by the Legislature is to apply. Without capacity to give authorizations of that sort, we
should have the anomaly of a legislative power which, in many circumstances calling for its
exertion, would be but a futility. But the constant recognition of the necessity and validity of such
provisions and the wide range of administrative authority which has been developed by means of
them cannot be allowed to obscure the limitations of the authority to delegate, if our
constitutional system is to be maintained.
• “Thus, in every case in which the question has been raised, the Court has recognized that there are limits of
delegation which there is no constitutional authority to transcend. We think that § 9(c) goes beyond those
limits. As to the transportation of oil production in excess of state permission, the Congress has declared no
policy, has established no standard, has laid down no [Link] is no requirement, no definition of
circumstances and conditions in which the transportation is to be allowed or prohibited.
• Declared the section to be ultra vires
 CARDOZO’S DISSENT

• “In the laying of his interdict, he is to confine himself to a particular commodity, and to
that commodity when produced or withdrawn from storage in contravention of the policy and
statutes of the states. He has choice, though within limits, as to the occasion, but none
whatever as to the means. The means have been prescribed by Congress. There has been
no grant to the Executive of any roving commission to inquire into evils and then,
upon discovering them, do anything he pleases.”
• “I am persuaded that a reference, express or implied, to the policy of Congress as declared in §
1, is a sufficient definition of a standard to make the statute valid. Discretion is not
unconfined and vagrant. It is canalized within banks that keep it from overflowing …
Under these decisions, the separation of powers between the Executive and Congress is not a
doctrinaire concept to be made use of with pedantic rigor. There must be sensible
approximation, there must be elasticity of adjustment, in response to the practical
necessities of government, which cannot foresee today the developments of
tomorrow in their nearly infinite variety.
 CARDOZO’S DISSENT

• “The ascertainment of these facts at any time or place was a task too intricate and special to be
performed by Congress itself through a general enactment in advance of the event. All that
Congress could safely do was to declare the act to be done and the policies to be promoted,
leaving to the delegate of its power the ascertainment of the shifting facts that would determine
the relation between the doing of the act and the attainment of the stated ends. That is what it
did.
• It said to the President, in substance: you are to consider whether the transportation of oil in
excess of the statutory quotas is offensive to one or more of the policies enumerated in § 1, … If
these standards or some of them have been flouted, with the result of a substantial obstruction to
industrial recovery, you may then by a prohibitory order, eradicate the mischief.
• “The statute was framed in the shadow of a national disaster. A host of unforeseen contingencies
would have to be faced from day to day, and faced with a fullness of understanding unattainable by
anyone except the man upon the scene. The President was chosen to meet the instant need.
 JUSTICE CARDOZO: CHANGING
DISSENT TO MAJORITY

• “So long as a policy is laid down and a standard established by

statute, constitutional delegation of legislative power is involved in
leaving to selected instrumentalities the making of subordinate rules
within prescribed limits and the determination of facts to which the
legislation is to apply" [Schechter Poultry Corp. v. United States, 295
U.S. 495].
 NATIONAL BROADCASTING CO V. US

• The Federal Communications Commission established Chain Broadcasting Regulations in 1941

• To govern the licensing and content of chain broadcasting stations.
• National Broadcasting Co sued the Government for such enforcement of the regulations.
• At the first stage: United States District Court for the Southern District of New York dismissed the complaint,
ruling for the government.
• Then in appeal, Supreme Court ultimately affirmed the dismissal of the complaint, ruling that the government had
the power to enact and enforce the regulations in question.
 INDIAN POSITION

• Delegated legislation often arises in the context of executive action, where the executive exercises powers delegated to it by
legislation enacted by Parliament or the state legislatures. This delegation ensures administrative flexibility while maintaining
parliamentary sovereignty.
1. Article 357:
• Article 357 of the Indian Constitution deals with the exercise of the legislative powers of the President to give effect to laws
made by Parliament for certain Union territories.
• This article empowers the President to direct that any Act of Parliament (or part thereof) shall not apply to a Union
territory, or shall apply to a Union territory subject to specified modifications or exceptions.
• Essentially, Article 357 authorizes the President to delegate the power to extend or modify laws made by Parliament to
Union territories, thereby allowing for tailored application of laws to specific regions.
2. Article 372:
• Article 372 of the Indian Constitution deals with the continuance in force of existing laws and their adaptation.
• This article allows for the adaptation and modification of pre-constitutional laws (laws in force before the commencement of
the Constitution) to bring them into accord with the provisions of the Constitution.
• It grants the President the power to make such adaptations and modifications by order, ensuring the harmonization of
existing laws with the constitutional framework established by the Constitution of India.
• Article 372 ensures continuity in the legal system and provides a mechanism for the smooth transition from pre-
constitutional laws to the post-constitutional legal order.
 INDIAN POSITION

• Article 53 vs. Articles 245 and 246:

• Article 53 of the Indian Constitution vests the executive power of the Union in the President, to be exercised either
directly or through officers subordinate to him in accordance with the Constitution.
• Articles 245 and 246 delineate the legislative powers of Parliament and the state legislatures, specifying the extent of
their jurisdiction to make laws.
• While Article 53 confers executive power on the President, Articles 245 and 246 provide the framework for
legislative authority. The interplay between these provisions illustrates the separation of powers between the
executive and legislative branches of government.
• In summary, these constitutional provisions explicitly mention delegation of powers, either by conferring authority on
the President to modify laws for Union territories (Article 357), enabling the adaptation of pre-constitutional laws
(Article 372), or delineating the executive and legislative powers of the Union and the states (Article 53 in
conjunction with Articles 245 and 246).
 DELEGATED LEGISLATION IN INDIA

• Pre constitutional Position:(Queen v. Burrah- 1878): Calcutta HC, relying on the doctrine of
‘delegates non potest delegare,’ held that the Indian Legislature, itself being a delegate of the
Imperial Parliament, could not further sub-delegate its power under Section 9 of the
Government of India Act, 1858.
• On appeal, Privy Council reversed the judgment of the Calcutta HC. It held that the Council of
the Governor-General was a supreme legislature with plenary powers and entitled to transfer
certain powers to the Provincial Executive. Laws passed by the subordinate executive authority
on the basis of such transfer of power were held to be valid. Termed it “Conditional Legislation”.
• Post constitutional period before In re Delhi laws case: Jatinder Nath v. Province of Bihar
1949: it was held that in India, there could be no delegated legislation beyond conditional
legislation.
• In re Delhi laws act: three acts up for scrutiny
• Judges contemplated the British and American systems
 IN RE DELHI LAWS ACT CASE. (1951)

(a) Section 7 of the Delhi Laws Act, 1912.

“The Provincial Government may, by notification in the official gazette,
extended with such restrictions and modifications as it thinks fit to the
Province of Delhi or any part thereof, any enactment which is in force in
any part of British India at the date of such notification.”
(b) Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947:
The central government may, by notification in the official gazette,
extend to the Province of Ajmer Merwara with such
restrictions and modifications as it thinks fit any enactment
which is in force in any other province at the date of such
notification.
(c) Section 2 of the Part C States (Laws) Act, 1950:
“The Central Government may, by notification in the official Gazette, extend
to any Part C State (other than Coorg and the Andaman and Nicobar Islands)
or to any part of such State, with such restriction and modifications as
it thinks fit, any enactment which is in force in a Part A State at the date of
the notification; and provision may be made in any enactment to be
extended for the repeal or amendment of any corresponding law
(other than a Central Act) which is for the time being applicable to
that Part C State.”
 CONTENTIONS
Arguments against the Government (N. C. Chatterjee) Arguments for the Government (M.C. Setalvad, Attorney
• Power of legislation is given to the legislature and General)
whatever the Constitution wants to provide it must • The power of legislation includes power of delegation.
expressly state. For example, during emergency the law • There is no expressed restriction on delegation.
making power is delegated to the president. • No abdication of power, which means so long the
• Doctrine of Separation of Powers: this was borrowed legislature has the power to control the executive,
from the US Constitution which follows strict separation. anything can be delegated. Abdication means
• Delegatus non potest delegare: The power of legislation abandonment of sovereignty, formal or virtual surrender
can’t be further delegated. of powers. This is not the case here. The legislature
retains the power to retain the laws made by the
executive.
• Indian legislature is not a delegate. It is a sovereign
body.
• Modification is not substantial change: It means only an
incidental change.
• Relies on Queen v. Burrah 5 I.A. 178.
DECISION: SPECTRUM OF OPINIONS

Justice
Fazl Ali
Justice
Mukherjee

Justice
Kania
 KANIA J: MINORITY

• The essentials of legislative function are the determination of the legislative

policy and its formulation as a rule of conduct.
• the legislative authority can delegate if it stands the three basic tests:
• It must be a delegation in respect of a subject or matter which is within the scope of the
legislative power of the body making the delegation (competency of the legislature).
• Such power of delegation is not negatived by the instrument by which the legislative body is
created or established; (power isn’t ultra vires).
• It does not create another legislative body having the same powers and to discharge the
same functions which it has, if the creation of such a body is prohibited by the instrument
which establishes the legislative body itself. (no abdication of legislative powers).
 KANIA J MINORITY

• So far as section 7 of the Delhi Laws Act gives power to the executive (Central) Government
to extend Acts passed by the Central Legislature to the Province of Delhi, the same may be
upheld. The question then remains in respect of the power of the executive government to
extend Acts of other Provincial legislatures (with or without restrictions or modifications) to
the Chief Commissioner's Province. It is obvious that in respect of these Acts the Central
Legislature has not applied its mind at all. It has not considered whether the Province of Delhi
requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare
of the people of the Province or for its government. They are passed by other Provincial
legislatures according to their needs and circumstances.
• In my opinion, therefore, to the extent section 7 of the Delhi Laws Act permits the Central
executive government to apply any law passed by a Provincial legislature to the Province of
Delhi, the same is ultra vires the Central Legislature. To that extent the Central Legislature has
abdicated its functions and there- fore the Act to the extent is invalid. Similar opinion for the
Ajmer Merwara act and Part C states laws act
 KANIA J (MINORITY)

• Conditional Legislation is permissible

• The legislature cannot delegate laying down of a rule of conduct
• The power of modification or alteration of laws cannot be delegated
• The power of repealing laws cannot be delegated
 FAZL ALI J

• At the first sight, these provisions appear to be very wide, their most striking features being
these :-
➢ There is no specification in the Act by way of a list or schedule of the laws out of which the
selection is to be made by the Provincial or the Central Government, as the case may be, but
the Government has been given complete discretion to adopt any law whatsoever
passed in any part of the country, whether by the Central or the Provincial
Legislature.
➢ The Government concerned has been empowered not only to extend or adopt the laws but
also to introduce such restrictions and modifications as it thinks fit; and in the Part C
States (Laws) Act, 1950, power has been given to the Central Government to make a provision
in the enactment extended under the Act for the repeal or amendment of any
corresponding law (other than a Central Act) which is for the time being
applicable to the Part C State concerned.
 FAZL ALI J

• It will be a contradiction to describe such legislation as amounting to abdication of

powers, because from the very nature of the legislation it is manifest that the
legislature had the power at any moment of withdrawing or altering any
power with which the authority chosen was entrusted, and could change or
repeal the laws which the authority was required to make applicable to the State or
States concerned.
• In each case the agency selected was not empowered to enact laws, but it could
only adapt and extend laws enacted by responsible and competent
legislatures. Thus, the power given to the Governments in those Acts was
more in the nature of ministerial than in the nature of legislative power.
The power given was ministerial, because all that the Government had to do was
to study the laws and make selections out of them.
• It was pointed out to us that in the Acts with which we are concerned, power has been given to extend not
only Acts of the Central Legislature, which is the author of the Acts in question, but also those of the
Provincial Legislatures. But it seems to me that the distinction so made does not affect the principle involved.
• Discussion of Henry VIII clause and the safeguards of time limitation: absence thereof not fatal for validity
• Repeal or amendment of any corresponding law which is for the time being applicable to the Part C State
concerned: No doubt this power is a far-reaching and unusual one, but, on a careful analysis, it will be
found to be only a connected of the power of transplantation and modification.
 MUKHERJEE J

• The answer is that delegation of legislative authority could be permissible but only
as ancillary to, or in aid of, the exercise of law-making powers by the proper
legislature, and not as a means to be used by the latter to relieve itself of its own
responsibility or essential duties by devolving the same on some other agent or
machinery.
• Abdication of legislative function: distinction between "seeking the assistance of a
subordinate agency in the framing of rules and regulations which are to become a
part of the law," and "conferring on another body the essential legislative function
which under the constitution should be exercised by the legislature itself."
• In my opinion, it is not enough that the legislature retains control over the
subordinate agent and could recall him at any time it likes, to justify its arming the
delegate with all the legislative powers in regard to a particular subject.
• Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the courts
cannot and should not interfere with the discretion that undoubtedly rests with the legislature itself in
determining the extent of delegation necessary in a particular case.
• the standards to guide the administrative agency may be laid down in very broad and general terms. It is
enough if the legislature lays down an intelligible principle which can be implemented by the subordinate
authorities for specific cases or classes of case
• Modification: . I do not think that the executive government is entitled to change the whole nature or policy
underlying any particular Act or take different portions from different statutes and prepare what has been
described before us as "amalgam" of several laws– can modify but not to the extent of changing its basic policy
• The executive government is given authority to alter, repeal or amend any laws in existence at that
area under the guise of bringing in laws there which are valid in other parts of India. This, in my
opinion, is an unwarrantable delegation of legislative duties and cannot be permitted. The last
portion of section 2 of Part C States (Laws) Act is, therefore, ultra vires the powers of the Parliament
 ESSENTIAL LEGISLATIVE FUNCTIONS

What can be delegated among the following?

• Commencement
• Framing of rules
• Supplying details after general principles are laid down
• Repeal of laws
• Inclusion/ Exclusion
• Exemption without policy
• Suspension of provisions
• Modifications
• Sub-Delegation
 NJAC: WAS FORMULATED UNDER 99 TH
AMENDMENT TO THE CONSTITUTION

• Added Article 124A which established the NJAC: CJI, two other judges,
minister of law and justice, two eminent persons (nominated by the PM,
Leader of opposition and the CJI)
• Added Article 124 C. Article 124C authorizes the Parliament to “regulate the
procedure for the appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts and empower the
Commission to lay down by regulations the procedure for the discharge of its
functions, the manner of selection of persons for appointment and such other
matters as may be considered necessary by it.”
 NJAC ACT

• Preamble: An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for
recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and
Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or
incidental thereto.
• Memorandum Regarding Delegated Legislation: The matters in respect of which the rules and regulations may be
made are generally matters of procedure and administrative details and it is not practicable to provide for them in
the Bill itself. The delegation of legislative power is, therefore, of a normal character
• Statement of Objects and Reasons: The National Judicial Appointments Commission Bill, 2014 seeks to broad
base the appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary,
executive and eminent persons and ensures greater transparency, accountability and objectivity in the
appointment of the Judges in the Supreme Court and High Courts.
 IMPUGNED PROVISIONS IN THE NJAC
ACT

11. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the
provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:–– (a) the fees and allowances
payable to the eminent persons nominated under sub-clause (d) of clause (1) of article 124A of the
Constitution;
Power of President to require reconsideration.
Officers and employees of Commission.
Procedure to be followed by Commission in discharge of its functions. Power to make rules.
Procedure for transfer of Judges.
(b) the terms and other conditions of service of officers and other employees of the Commission under
sub-section (2) of section 8;
(c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made
by the rules.
12. (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act, and the rules
made thereunder, to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any
of the following matters, namely:—
(a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sub-section (2) of section
5;
(b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under sub-section (3)
of section 5;
(c) the criteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of section 6;
(d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of section 6;
(e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6;
(f) other procedure and conditions for selection and appointment of a Judge of the High Court under sub-section (8) of
section 6;
(g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court under
section 9;
(h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of section 10;
(i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the quorum at
its meeting, under sub-section (2) of section 10;
(j) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be
made by regulations.
 POWER OF INCLUSION AND
EXCLUSION

• The executive having the power to expand or reduce the range of application
of the parent act
• How is it done: power to amend schedules
• Delegation of such a power has been held valid if policy is apparent from the
act
 HAMDARD DAWAKHANA V. UNION OF
INDIA 1960

• Drug and Magic Remedies (Objectionable Advertisement) Act (XXI of 1954)

• "An Act to control the advertisement of drugs in certain cases, to prohibit the advertisement for
certain purposes of remedies alleged to possess magic qualities and to provide for matters
connected therewith."
• Counter Affidavit of the respondents: I say that the main object and purpose of the Act is to prevent
people from self medicating with regard to various serious diseases. Self-medication in respect of
diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health
of the community and is likely to affect the well-being of the people. Having thus found that some
medicines have tendency to induce people to resort to self-medication by reason of elated
advertisements, it was thought necessary in the interest of public health that the puffing up of the
advertisements is put to a complete check and that the manufacturers are compelled to route their
products through recognized sources so that the products of these manufacturer could be put to
valid and proper test and consideration by expert agencies.
 HUMDARD DAWAKHANA V. UOI, AIR 1960 SC 554

• Facts:
• The drugs controller on December 4, 1958, gave notification to the petitioners telling them that they were in
contravention of Section 3 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 and
asked them to take back the products that were sent, along with that controller stopped the sale of forty of the
products as mentioned in the petition.
• which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs
having magic qualities for curing diseases was challenged on the ground that the restriction on advertisement
abridged the freedom.
• The petitioners contended that the drugs bore the Unani nomenclature which had been recognized throughout
the world for several centuries past.
• The counter-affidavit was submitted by the respondents and stated that the main purpose of the act is to
prevent people from self-medicating about various serious diseases and found that some medicines tend to
induce people to resort to self-medication by reasons of elated advertisements. It was thought to be necessary
to put a complete check on.
 RELEVANT PROVISIONS

• S.3 " Subject to the provisions of this Act, no person shall take any part in the publication of any
advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that
drug for .......................................... ......................................................... .........................................................(d) the
diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or
condition which may be specified in rules made under this Act
• S. 16 (1) "The Central Government may by notification in the official gazette make rules for carrying
out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules
may
(a) specify any disease or condition to which the provisions of s. 3 shall apply;

• Challenged: Infringes Art 19. Also, excessive delegation

 HUMDARD DAWAKHANA V. UOI, AIR 1960 SC 554

• Issue: Whether conferment of power on executive to add to diseases falling within

mischief of statute amounts to delegation of legislative power?
• Whether statute was empowering executive to seize offending articles, without providing
safeguards?
 CONDITIONAL LEGISLATION

“when the delegate is given the power of making rules and regulations in order to fill in the details
to carry out and serve the purposes of the legislation the manner in which the requirements of the
statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated
legislation.
But when the legislation is complete in itself and the legislature has itself made the law and the
only function left to the delegate is to apply the law to an area or to determine the time and
manner of carrying it into effect, it is conditional legislation.”
 HUMDARD DAWAKHANA V. UOI, AIR 1960 SC 554

• Kapur, J:-
• The Broad legislative Policy is to be laid down and details may be supplied by the Executive
within the Statutory limits.
• Definite boundaries are to be set and administrative discretion is to be exercised within those
limits.
• Parliament has established no criteria, no standards and has not prescribed any principle on which
a particular disease or condition is to be specified in the Schedule. It is not stated what facts or
circumstances are to be taken into consideration to include a particular- condition or disease.
• The power of specifying diseases and conditions as given in s. 3(d) must therefore be held to be
going beyond permissible boundaries.
 TAXATION POWER

• Article 265 of the Constitution: Taxes not to be imposed save by authority of law. No tax shall
be levied or collected except by authority of law: law enacted by a competent legislative function.
• Power to tax is an inherent power of any state, and is regarded as an inherent legislative
function.
• Permissible limits of valid delegation of taxing power?
• Power of exemption from tax or extension of the tax on other items may be delegated
• Fixation of rate only if legislative policy has been laid down
• Taxation charging statute has to be interpreted strictly
• General authorization of carrying out purposes of the act does not include taxation: specific
delegation required.
 G WA L I O R R AYO N S I L K M F G . C O.
V.
A S S I S TA N T C O M M I S S I O N E R O F S A L E S TA X [ 1 9 7 4 ]

Section 8(2) of Central Sales Tax Act: The tax payable by any dealer on his turnover in so far as the
turnover or any part thereof relates to the sale of goods in the course of interstate trade or
commerce not falling within sub-section (1)
(a) in the case of declared goods, shall be calculated at the rate applicable to the sale or purchase
of such goods inside the appropriate State; and
(b) in the case of goods other than declared goods, shall be calculated at the rate of ten per
cent or at the rate applicable to the sale or purchase of such goods inside the
appropriate State, whichever is higher; and for the purpose of making any such calculation
any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the
appropriate State, notwithstanding that he, in fact, may not be so liable under that law.
Argued: fixation of rate of tax is a legislative function and as the Parliament has, under section
8(2) (b) of the Act, not fixed the rate of central sales tax but has adopted the rate applicable to the
sale or purchase of goods inside the appropriate State in case such rate exceeds 10 per cent, the
Parliament has abdicated its legislative function. The above provision is consequently stated to be
constitutionally invalid because of excessive delegation of legislative power.
 HELD

• The object of law thus is that the rate of the central sales tax shall in no event
be less than the rate of local sales tax for the, goods in question though it may
exceed the local rate in case that rate be less than 10 per cent. (Khanna J)
• You do not not want the central tax to be less than the local state tax as it
would be a disincentive to the intra-state purchasers. So you cannot set a
maximum limit without knowing the local sales tax.
• It is also not possible to fix the maximum rate under section 8(2)(b) because
the rate of local sales tax varies from State to State. The rate of local sales tax
can also be changed by the State legislatures from time to time. It is not within
the competence of the Parliament to fix the maximum rate of local sales tax
 G WA L I O R R AYO N S I L K M F G . C O. V. A S S I S TA N T C O M M I S S I O N E R O F S A L E S TA X [ 1 9 7 4 ]

• Khanna, J.:-
• The legislative policy is to fix the rate of sales tax to a minimum of 10 percent to
avoid evasion. This is also to discourage interstate sale of goods to unregistered
dealers.
• Local Sales tax depends on the State Government to fix. The Central Government
cannot come up with a precise amount of local sales tax.
• So determination of such tax is not abdication of legislative power. However
sufficient guidelines must be provided in the act for the executive to fix the rate of
tax.
 KHANNA J: MAJORITY

• The rule against excessive delegation of legislative authority flows from and is a necessary postulate of the
sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of
legislative policy the views of individual officers or other authorities, however competent they may be, for that of
the popular 'will as expressed by the representatives of the people.
• The legitimacy of delegation depended upon its being vested as an ancillary measure which the legislature
considered to be necessary for the purpose of exercising its legislative powers effectively and completely. The
legislature must retain in its own hands the essential legislative function. Exactly what constituted "essential
legislative function" is difficult to define in general terms, but this much is clear that the essential legislative
function must at least consist of the, determination of the legislative policy and its formulation as a
binding rule of conduct.
• “Abdication”: We are also unable to subscribe to the view that if the legislature can repeal an enactment, as it
normally can, it retains enough control over the authority making the subordinate legislation and, as such, it is not
necessary for the legislature to lay down legislative policy, standard or guidelines in the statute
• Mukherjee was right in Delhi Laws case
• 8(2)(b) is not ultra vires
 G WA L I O R R AYO N S I L K M F G . C O. V. A S S I S TA N T C O M M I S S I O N E R O F S A L E S TA X [ 1 9 7 4 ]

• Essential Legislative function which cannot be delegated is to determine

the legislative policy. Only the task of subordinate legislation to fulfil the
purposes of the act can be delegated. When the legislative policy is clear or
a standard is laid down, the Court should not interfere.
• What guidance is to be given and to what extent is to be decided on a case-
case basis depending on the provisions of a particular act.
• Even though delegation is necessary for the purpose of governance, legislative
policy cannot be substituted by the discretion of individual officers.
• Abdication test is not sufficient. If determination of a crime is to be left at the
hand of the executive, the result will be disastrous.
• A clear Legislative policy was laid down in this case.
 G WA L I O R R AYO N S I L K M F G . C O. V. A S S I S TA N T C O M M I S S I O N E R O F S A L E S TA X [ 1 9 7 4 ]

• Mathew, J:-
• Delegation means handing over a function to a different agency with complete power of
revocation in one’s hands. Delegation does not involve complete abdication of power.
• In re Delhi Laws Act case, it is laid down that Essential Legislative functions cannot be
delegated. But the case does not lay down any principle for determining future cases.
• What is then Essential Legislative Function? The Essential Legislative function is that the
Parliament cannot abdicate its functions. That is, for modern administration even though
extensive legislation is allowed which is proven from the use of Henry VIIIth clauses, the
legislature ought not to create a parallel legislature and must hold the power to repeal and
amend the laws.
• In this case, the Parliament can repeal or amend the laws made by State Governments. Hence
valid Delegation.
 MATHEW J: MINORITY

• Delegation often involves the granting of discretionary authority to another, but this authority is purely derivative.
The, ultimate power always remains in the delegator and is never renounced.
• Abdication: the conferment of arbitrary power by the legislature upon a subordinate body without reserving to
itself control over that body and the self-effacement of legislative power in favour of another agency either in
whole or in part. In other words, the legislature should not abdicate its essential function.
• If Parliament can repeal the provision, there can be no objection on the score that Parliament has
abdicated its legislative function. It retains its control over the fixation of the rate intact. In other
words, so long as Parliament can repeal the provisions of s.8 (2) (b) adopting the higher rate of tax fixed by the
State legislatures, it has not abdicated its legislative function.
• We think that the principle of the ruling in Shama Rao v. Pondicherry (supra) must be confined to the facts of the
case.
• MK Papiah v Excise Commissioner (1975) case in effect went against the
majority in the Gwalior Rayon case despite Papiah being just a two judge
bench (Gwalior Rayon was 5 judges). Judgment by Mathew, J. (his minority
opinion in Gwalior Rayon was turned into a majority)

• Later case of Registrar of Coop Societies v Kunjabmu (1980):

“We do not wish in this case to search for the precise principles decided in the
Delhi Laws Act case, nor to consider whether MK Papiah beats the final retreat
from the earlier position. For the purposes of this case we are content to accept
the ‘policy’ and ‘guidelines’ theory.”
 RAJNARIAN SINGH V THE CHAIRMAN,
PATNA ADMINISTRATION (1952)

• 5 Judges. Unanimous.
• Section 3(1)(f ) : it empowers the delegated authority to pick any section it chooses
out of the Bihar and Orissa Municipal Act of 1922 and extend it to "Patna"; and
second, it empowers 'the Local Government (and later the Governor) to apply it
with such "restrictions and modifications" as it thinks fit.
• The Governor of Bihar picked section 104 (Assessment of Taxes), modified it and
extended it in its modified form to the Patna Administration and Patna Village areas.
• Sections 4, 5 and 6 of the Original Act stated that no municipality competent to tax
shall be thrust upon a locality without giving its inhabitants a chance of being heard
and of being given an opportunity to object.
• Issue: Whether the impugned notification travels beyond the vires of the Act in question.
• Also, the validity of S 3(1)(f) of the Act.

Court:
• “In our opinion, the majority view of Delhi Laws case was that an executive authority can be authorized
to modify either existing or future laws but not in any essential feature. Exactly what constitutes
an essential feature cannot be enunciated in general terms, and there was some divergence of view about this
in the former case, but this much is clear from the opinions set above : it cannot include a change of
policy.”
• “It follows that when a section of an Act is selected for application, whether it is modified or not, it must be
done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject
to that limitation we hold that section 3(1)(f) is intra vires…”
• “The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act.
Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it
is ultra vires.”
• The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no
municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being
heard and of being give n an opportunity to [Link], the Local Government is under a statutory
duty imposed by the Act in mandatory terms to listen to the objections and take them into consideration
before reaching a decision.
• In our opinion, this is a matter of policy, a policy imposed by the Legislature and embodied in sections
4, 5 and 6 of the Act. We are not able to brush this aside as negligible and it cannot, in our opinion, be left to
an executive authority to tear up this guarantee in disregard of the Legislature's solemnly expressed mandate.
To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case(1) say,
cannot be done by a delegated authority.

• This test of modification upheld in the Lachmi Narain v UOI (1975) case as well.
 LACHMI NARAIN 1976

• Bengal Finance (Sales Tax) act extended to the UT of Delhi.

• Six months after enactment, a mandatory clause of notice period was removed under power of
modification. Challenged.
• The power of extension and modification given in the statute challenged
• Held: The power to make restrictions and modifications in the enactment sought to be extended is
not a separate and independent power but is an integral constituent of the power of
extension. It can be exercised only along with, and not apart from, the power of extension.
• This power exhausts itself once the enactment is extended
• Only such modifications can be made which are necessary in adjusting and adapting the enactment
suitably. Modifications cant be made to change the central purpose or any essential features of the
act.
• The said notice period clause was mandatory and not directory
 SUB-DELEGATION

General rule –
• prohibited unless expressly (or by necessary implication) allowed by the statute that delegates the legislative
power, and
• only to the extent strictly allowed by the provision that authorises it.
Example: Essential Commodities Act: Section 5:
“5. Delegation of powers—The Central Government may, by notified order, direct that [the power to make
orders or issue notifications under section 3] shall, in relation to such matters and subject to such conditions, if any,
as may be specified in the direction, be exercisable also by-
(a) such officer or authority subordinate to the Central Government; or
(b) such State Government or such officer or such authority subordinate to a State Government; as may be
specified in the direction.”
 HARSHANKAR BAGLA (1954): IMPUGNED PROVISIONS

Essential Supplies (Temporary Powers) Act, 1946

3. (1) The Central Government, so far as it appears to it to be necessary or expedient for
maintaining or increasing supplies of any essential commodity, or for securing their equitable
distribution and availability at fair prices, may by order provide for regulating or prohibiting
the production, supply and distribution thereof and trade and commerce therein
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order
made thereunder may provide
(a) for regulating by licenses, permits or otherwise the production or manufacture of any
essential commodity;.........
(d) for regulating by licenses, permits or otherwise the storage, transport, distribution,
disposal, acquisition, use or consumption of any essential commodity;
4. The Central Government may by notified order direct that the power to make
orders under section 3 shall, in relation to such matters and subject to such conditions,
if any, as may be specified in the direction, be exercisable also by
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to a State
Government as may be specified in the direction.
6. Any order made under section 3 shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act or any
instrument having effect by virtue of any enactment other than this Act
►Order: Section 3: No person. shall transport or cause to be transported by rail, road,
air, sea or inland navigation any cloth, yarn or apparel except under and in accordance
with-
(i) a general permit notified in the Gazette of India by the Textile Commissioner, or
(ii) a special transport permit issued by the Textile Commissioner.
 HARSHANKAR BAGLA V STATE OF MP 1954

Facts:
• The appellant Harishankar Bagla and his wife, Gomti Bagla, were arrested by the Railway Police, for
contravention of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, read with Section 3 of the
Cotton Textiles (Control of Movement) Order, 1948. They were accused of transporting “new cotton cloth”
from Bombay to Kanpur, without any legal permit.
• The High court upheld the constitutionality of Sections 3 and 4 of the Act as well as the impugned order.
Although Section 6 was held to be unconstitutional (due to it being inconsistent with the provisions of the
Railway Act), the court clarified that the unconstitutionality of Section 6 would not affect the prosecution of
the appellants in this case
 CONTENTIONS

The appellants argued that,

o Sections 3 and 4 of the Act and Section 3 of the Order contravene the
fundamental right of the appellants guaranteed by Article 19(1) (f) and (g) of the
Constitution. (property and profession)
o Sections 3 and 4 of the Act were also claimed to be ultra vires on the ground of
excessive delegation of legislative power.
o Since Section 3 of the Act is inextricably connected with Section 6, and the
latter had been declared ultra vires by the High Court , Section 3 should also be
declared unconstitutional on that ground.
Cotton Textiles (Control of Movement) Order, 1948
• infringed the rights of a citizen guaranteed in sub-clauses (f) and (g) of article 19(1) of the
Constitution. These sub-clauses recognize the right of a citizen to dispose of property
and to carry on trade or business.
• Response: Not an absolute right. Can be restricted in public interest. This is one such instance. Clause 3
of the Control Order does not deprive a citizen of the right to dispose of or transport cotton textiles
purchased by him. It requires him to take a permit from the Textile Commissioner to enable him to
transport them. The requirement of a permit in this regard cannot be regarded as an unreasonable
restriction
• Excessive Delegation and Sub-delegation
• Essential Legislative functions not delegated here. Sub delegation authorized in the act
• Legislature has sufficiently formulated the legislative policy: “for maintaining or increasing supplies of any
essential commodity” etc
• Ambit and character of the act is such that details can be worked out by delegation only. Hence broad
limits of delegation
• Section 6 unconstitutional: Compared with the Part C States provision up for questioning in Delhi Laws case.
There, the effect was repeal of law. Here it is merely bypassing of some laws by the order in case of a repugnancy.
By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains un-
repealed but during the continuance of the order made under section 3 it does not operate in that field for the
time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions
• The bypass is also authorized by the legislature rather than the delegate. The power of the delegate is only to
make an order under section 3. Once the delegate has made that order its power is exhausted. Section 6 then
steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect
notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being
supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre-
existing law and no exception could be taken on the ground of excessive delegation to the Act of
the Parliament itself. There is no delegation involved in the provisions of section 6 at all.
 JALAN TRADING COMPANY (PRIVATE LIMITED ) V.
MILL MAZDOOR UNION (1967)
The Payment of Bonus Ordinance 3 of 1965 was promulgated by the President on May 29, 1965, with
immediate effect due to the demand for payment of bonus for the years 1961 and 1962.
The Payment of Bonus Act, 1965:
• Section 10 - Every employer has to pay every employee in an accounting year minimum bonus which has to be four per
cent of the salary or wage earned by the employee during the accounting year or Rs. 40 whichever is higher, whether there
are profits in the accounting year or not. If the employee is below the age of 15 then they have to be paid a minimum of Rs.
25.
• Section 33 - The Act is made applicable to pending industrial disputes (regarding payment of bonus relating to any
accounting year not being an accounting year earlier than the accounting year ending on any day in the year 1962)
immediately before May 29, 1965, before the appropriate Government or any Tribunal or other authority under the
Industrial Disputes Act, 1947, or under any corresponding law, or where it is pending before the Conciliation officer or for
adjudication.
• Sub-s. (2) of Section 34 - Special overriding provisions regarding payment of bonus to employees computed as a
percentage of gross profits reduced by direct taxes payable for the year, (subject to the maximum prescribed by s. 11), when
the bonus has been paid by the employer to workmen in the "base year" as defined in Explanation II.
• Section 36 - Appropriate Government is invested with power to exempt an establishment or a class of establishments
from the operation of the Act, provided the Government believes that having regard to the financial position and other
relevant circumstances of the establishment, it would not be in the public interest to apply all or any of the provisions of
the Act.
• Section 37 - Power is conferred upon the Central Government by order to make provision, not inconsistent with the
purposes of the Act, for removal of difficulties or doubts in giving effect to the provisions of the Act.
 JALAN TRADING COMPANY (PRIVATE LIMITED
) V. MILL MAZDOOR UNION (1967)

• The contention of the Petitioner

• The Act is invalid as it amounts to fraud on the Constitution or otherwise is a colorable exercise of legislative
power.

• The contention of the Respondents

• Section 34(2) is not invalid because the ratio was intended to stabilize the previous grant of bonus and to maintain in
favour of labour whatever was achieved by collective bargaining in the base year.

• Fact in Issue:
1. Whether Section 10, 32, 33, 34(2), 36 and 37 of the Payment of Bonus Act, 1965 are ultra vires?
2. Was there excessive delegation of power when the Parliament to enacted a law relating to bonus?
 JALAN TRADING COMPANY (PRIVATE LIMITED
) V. MILL MAZDOOR UNION (1967)
• The Parliament has the power to legislate in respect of bonuses to be paid to industrial employees. By enacting
the Payment of Bonus Act, the Parliament has not attempted to trespass upon the province of the
State Legislature. Parliament has normal power within the framework of the Constitution to enact legislation
which modifies principles enunciated by this Court as applicable to the determination of any dispute, and by
exercising that power the Parliament does not amount to fraud on the Constitution.
• Section 10 of the Bonus Act: Authority of the Parliament to legislate in respect of bonus is not denied and the
provision for payment of bonus is not open to attack on the ground of infringement of fundamental
rights other than those declared by Art. 14 and Art.19 (1)(g) of the Constitution.
• Concerning Section 33: the court held that it was patently discriminatory and the classification made on
that basis is not reasonable. When there are two industrial units- one has a dispute with its workmen or some of
them pending before the Government/ authority under the Industrial Disputes Act and relating to an accounting year
ending in the year 1962.
• For the years 1962, 1963 and 1964 this industrial unit will be liable to pay a bonus according to the statutory formula
prescribed by the Act, whereas another industrial unit in the same industry which may be regarded as reasonably
similar would be under no such obligation, if it has on May 29, 1965, no dispute relating to bonus pending because
the dispute has not been raised or has been settled by agreement or by the award. There is neither logic nor
reason in the different treatment meted out to the two establishments.
 JALAN TRADING COMPANY (PRIVATE LIMITED
) V. MILL MAZDOOR UNION (1967)
• Section 34: imposes a special liability to pay bonus determined on the gross profits of the base year on an
assumption that the ratio which determines the allocable surplus is the normal ratio not affected by any special
circumstance. The concept of bonus as allocation of an equitable share of the surplus profits of an establishment to
the workmen who have contributed to the earning has reality, any condition that the ratio on which the share
of one party computed based on the working of an earlier year, without taking into consideration the
special circumstances is arbitrary and unreasonable.
• Condition for the exercise of power under Section 36: is that the Government holds the opinion that it is not
in the public interest to apply all or any of the provisions of the Act to an establishment or class of establishments, and
that opinion is founded on a consideration of the financial position and other relevant circumstances. Parliament has
laid down principles and has given adequate guidance to the appropriate Government in implementing the provisions
of s. 36. The Power so conferred does not amount to delegation of legislative authority. Section 36
amounts to conditional legislation, and thus, is not void.
• Section 37: which authorizes the Central Government to provide by order for removal of doubts or difficulties in
giving effect to the provisions of the Act, delegates legislative power which is not permissible.
• The invalidity of Sections 33, 34(2) and 37 do not affect the validity of the, remaining provisions of the Act. The
proceeding that was pending in court before the Act came into force and also those that are covered under Section
33 would be decided based on the full bench formula.
• Therefore, Writ Petitions Nos. 3 of 1966 and 32 of 1966, declared Section 33 and 34(2) to be invalid as they infringe
Art. 14 of the Constitution, and section 37 was also declared invalid as it delegates to the executive authority
legislative powers.
 JALAN TRADING COMPANY (PRIVATE LIMITED
) V. MILL MAZDOOR UNION (1967)

• The minority view:

• Hidayatullah, J. took a libral view;
• “Parliament has not attempted to set up legislation. I have stated all that it wished in the subject of bonus in
the Act. Apprehending, however, that in the application of the new act doubts and difficulty might arrive and
not leaving there solutions to the court with the attendant delays and expense, parliament have chosen to give
power to the Central Government to remove doubt and difference by a suitable order.”
 GAMMON INDIA LIMITED AND OTHERS V. UNION OF
INDIA & ORS. ETC (1974)

Contract Labour (Regulation and Abolition) Act, 1970:

Object of the Act: regulation of Contract Labour regime and to improve the standards of workers
deployed as contract labour by ensuring suitable working conditions and wages.
Provision in question:
Section 34: “Power to remove difficulties…. to the Central Government”
Empowers the Central Government to make rules, which are inconsistent to the provisions of the Act for
removal of difficulty.
Issues:
1. Whether the fees prescribed for registration, licenses or renewal of licenses amount to levy of a tax
which are, therefore, beyond the rule-making powers of the Central and State Government?
2. Whether Section 34 of the Act empowering the Central Government to make any provisions for
removal of difficulty is excessive delegation thereby making it unconstitutional?
 GAMMON INDIA LIMITED AND OTHERS V. UNION OF
INDIA & ORS. ETC (1974)

• Whether the fees prescribed for registration, licenses or renewal of licenses amount
to levy of a tax which are, therefore, beyond the rule-making powers of the Central
and State Government?
• Power to impose tax is an essential legislative function. The fees prescribed for registration, licence
and renewal of licences do not amount to levy of tax. There is no arbitrary power or excessive
delegation of legislative authority with regard to grant of licence.
• “Essential legislative function” checked with the object of imposition of fees was to charge for the
service provided and compensate the cost incurred by the legislature in arranging the mechanisms
for registration and other purposes. Considered within permissible limits of delegated legislation.
• Whether Section 34 of the Act empowering the Central Government to make any
provisions for removal of difficulty is excessive delegation thereby making it
unconstitutional?
• Section 34 is delegation of power to remove difficulties to the executive for smooth
implementation of the Act. Refused to accept that such delegation amounts to excessive delegation
by interpreting it to be the provision for internal functioning of the administrative machinery. Does
not amount to excessive delegation.