DELEGATED LEGISLATION

CONTENTS

INTRODUCTION
CLASSIFICATION OF DELEGATED LEGISLATION
TYPES OF DELEGATED LEGISLATION
NEED FOR DELEGATED LEGISLATION
DELEGATED LEGISLATION IS IMPORTANT BECAUSE OF
SEVERAL REASONS
ADVANTAGES OF DELEGATED LEGISLATION
DISADVANTAGES OF DELEGATED LEGISLATION
REASONS FOR GROWTH
PURPOSE BASED CLASSIFICATION
CASE LAWS
DELEGATED LEGISLATION IN INDIA
CONCLUSION
BIBLIOGRAPHY
Introduction

The Constitution of Indian empowers Legislature to make laws for the country. One of the significant
legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously
such powers cannot be conferred on other institutions. But keeping in mind various multifarious
activities of a welfare State, it is not possible for the legislature to perform all the functions. In such
situation, the delegated legislation comes into the picture. Delegated Legislature is one of the
essential elements of administration whereby the executive has to perform certain legislative
functions. However, one must not forget the risk associated with the process of delegation. Very
often, an overburdened Legislature may unduly exceed the limits of delegation. It may not lay down
any policy; may declare any of its policy as vague and may set down any guidelines for the executive
thereby conferring wide discretion to the executive to change or modify any policy framed by it
without reserving for itself any control over subordinate legislation. Therefore, even though
Legislature can delegate some of its functions, it must not lose its control completely over such
functions.

Classification of Delegated Legislation

There are several ways for classifying delegated legislation-

I. Title based classification

Parliament does not follow any particular policy in choosing the forms of delegated legislation.

Delegated legislation may also be classified on basis of the nature and extent of delegation of
legislative power. According to the Committee on Ministers' powers, there are two types of
parliamentary delegation.

The Committee on Minister's Powers recommended for the simplification of nomenclature. It

suggested for confining the term 'rule' to the statutory instrument regulating procedure, the term
'regulation' to describe the substantive administrative rule--making and the term 'order' to be
confined to instruments exercising executive and quasi- judicial decisions1. .

II. Nature based classification

1. Normal Delegation

There are two types of normal delegation:

A. Positive delegation.-Where the limits are clearly defined in the Parent Act, it is called positive
delegation.

B. Negative delegatlon.-Where the delegated power does not include power to do certain things, it is
known as negative delegation e.g. power to legislate on matters of policy or power to impose tax.

2. Exceptional Delegation.

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Dr.kailash rai-Administrative Law
Exceptional delegation is also known as Henry VIII clause. Instances of exceptional delegation may
be as follows:

A.Power to legislate on matters of principle.

B. Power to amend Acts of Parliament.

C. Power giving such a wide discretion that it is almost impossible to know the limits.

D.Power to make rules which cannot be challenged in a court of law.

therefore that delegated legislation appears in several forms viz., rules, regulations, orders,
notification, bye-law, scheme and direction ending as the Act of Parliament from which it was
created.

Types of delegated legislation

Delegated Legislation is a term which covers the vast amount of legislation made by government
agencies and the Governor-General under authority of Acts of Parliaments, which delegate this
power to agencies. This type of legislation is also known as Subordinate Legislation or, Legislative
Instruments. Within the broad area of Delegated Legislation the following more specific terms are
sometimes used:

Regulation

The most common form of delegated legislation. Used for legislation of general application
emanating from a government department.

Rule

Legislation specifying procedural formalities, e.g court procedures such as the High Court Rules.

Ordinance

Primary legislation of non self governing territories, made by a federal government department to
apply to a particular territory. Also used for the legislation of some State local government bodies.

By-law

Made by a statutory corporation having effect only within the area of responsibility of the authority.
Also used for the legislation of some State local government bodies

There is also a range of other delegated legislation which includes: Decisions, Declarations,
Determinations, Directions, Orders, etc.

Need For Delegated Legislation

The process of delegated legislation enables the Government to make a law without having to wait
for a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to
modify or alter sanctions under a given statute or make technical changes relating to law. Delegated
legislation plays a very important role in the process of making of law as there is more delegated
legislation each year than there are Acts of Parliament.2

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M.P.Jain,principles of Administrative Law
Delegated Legislation is important because of several reasons.

Delegated Legislation reduces the burden of already overburdened Legislature by enabling the
emxecutive to make or alter the law under the authority of Legislature. Thus, this helps the
Legislature to concentrate on more important matters and frame policies regarding it.

It allows the law to be made by those who have the required knowledge and experience. For
instance, a local authority can be permitted to enact laws with respect to their locality taking into
account the local needs instead of making law across the board which may not suit their particular
area.

The process of delegated legislation also plays a significant role in an emergency situation since
there is no need to wait for particular Act to be passed through Parliament to resolve the particular
situation.

Finally, delegated legislation often covers those situations which have not been anticipated by the
Parliament during the time of enacting legislation, which makes it flexible and very useful to law-
making. Delegated legislation is, therefore, able to meet the changing needs of society and also
situations which Parliament had not anticipated when they enacted the Act of Parliament.

Advantages of Delegated Legislation:

Delegated legislation is both necessity as well as risk because it has certain advantages as well as
disadvantages. As regards advantages, its important advantage is that it saves valuable time of
Parliament, which is everywhere over worked and has no time to go into the details of the legislative
piece being enacted by it.

Then its another advantage is since the Parliament is not always in session it is this type of legislation
which fills the gap when emergencies like floods, famine, etc., arise. With its help it is possible to
experiment with some types of legislative measures, which if proved success, on that comprehensive
legislation can be undertaken.

It is delegated legislation which ensures flexibility because legislative measure can easily be
modified, if local conditions so warrant. This proves of considerable advantage for departments
which deal with such matters as labour welfare, social welfare, child and family welfare, etc.

It is delegated legislation which enables the government to use fully available talents for law making
purposes. The executive can also consult various affected interests by a particular piece of
legislation, which means willing compliance of laws, rules and regulations.
Disadvantages of Delegated Legislation:

But delegated legislation has its own advantages. There are critics who believe that it poses a threat
to the authority of the Parliament and liberties of the people. In delegated legislation the authorities
consult only organised interest while great mass of unorganised interests are neither consulted nor
can be consulted.

Not only this but usually executive tries to legislate on a matter which is easy to implement leaving
difficult matters to their own care. Then in practice it has been found that delegated legislation
directly or indirectly deprives the citizens of judicial protection.

Then executive laws may not be properly publicised and thus the people may not be aware of the
very existence of any piece of legislation. Delegated legislation means flexibility in legislation which
can result in confusion and uncertainty.

About its danger the ex-Chief Justice of England Hewart said, “It is despotism more sinister, but less
visible, which was emerging slowly but surely and the liberties’ of the people were very much in
danger.”

Reasons for Growth

1. Law making or ever widening modern welfare and service state is not possible. For the nature and
quality of work required 365 days – may not be sufficient and if overburdened the parliament can’t
give quality legislation. Also it is occupied with important policy matters and rarely finds time to
discuss matters of details.

2. Filling in Details of legislation- The executive in consultation with the experts or with its own
experience of local conditions can better improvise. Also legislation has become highly technical
because of the complexities of a modern govt.

3. Need for flexibility: - Ordinary legislative process suffers from the limitation of lack of experiment.
A law can be repeated by parliament itself, if it required adjustment administrative rule making is
the only answer between two sessions.

4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis legislation is
needed.

5. When Govt. action required discretion – rule making power of administrative agencies is needed
when the government needs to have discretion to carry out the policy objectives.

6. Direct participation of those who are governed is mere possible in delegated legislation.
Purpose based classification: -

1. Enabling Acts: - Appointed day clause: under this the executive has to appoint a day for the Act to
come into operation.

2. Extension and application Acts

3. Dispensing and Suspending Acts: - to make exemption from all or any provision of the Act in a
particular case or class of cases or territory, when circumstances warrant it. These are meant to
enable the administration to relieve hardship which may be occasioned as a result of uniform
enforcement of law.

4. Alteration Acts. : - Technically alteration amounts to amendment, yet it is a wide tern & includes
both modification and amendment.

Power to modify Acts has mostly been delegated as a sequel to the power to the power of extension
and application of laws.

The power of modification is limited to consequential changes, but, it overstepped it suffers

challenge on the ground that it is not within the legislative intent of modification.

In Queen v. BurahThe Privy Council held, that the 9th section of the Act conferring power upon the
Lieutenant-Governor to determine whether the Act of any part of it should be applied to a certain
district, was a form of conditional legislation and did not amount to delegation of legislative
powers3.

It is like “removing difficulty” so that the various states may coexist.

5. Power to make rules “ to carry out the purpose of the Act”

6. Classifying and fixing standard Acts: - Power is given to fix standard of purity, quality or fitness for
human consumption.

7. “Clarify the provision of the statutes Acts”. To issue interpretation on various provision of the
enabling Act.

Case laws

In the case of Western Indian theatre, Ltd. v. Cantonment Board Poona Cantonment the different
rates of entertainment tax imposed on two different Cinemas was challenged. The court rejected it
saying that keeping in mind the Large accommodation, the locality, the no of visitors and overall
circumstances the imposition of different rate of tax is justified and is not discriminatory4.

LakshmiNarain v. UOI the Supreme Court clearing the position stated that No useful purpose is
served by calling a power conferred by a status as conditional legislation instead of delegated
legislation5.

3
App case.889
4
AIR1959 SC 582
5
AIR 1976 SC 714
There is no difference between them in principle, for conditional legislation like delegated legislation
has “a content howsoever small restricted, of the law making power itself’ – and in neither case can
the person be entrusted with the power to beyond the limits which circumcise the power.”

In Inder Singh v. State of Rajasthan the Supreme Court upheld the validity of the Rajasthan
Tenant’s Protection Ordinance on the ground that it is conditioned legislation. The Ordinance was
promulgated for two years but S.3 had authorized the governor to extend its life by issuing
notification if required6.

Tulsipur Sugar Co. Ltd. v. Notified Area Committee was the case where notification issued u/s 3 of
U.P. Towner Area Act, 1914 vide which the Limits of Tulsipur town had been extended to the village
Shitalpur it was held as conditional legislation. It laid down that conditional legislation cannot be
characterized as subordinate legislation. It is strange logic as the latter is a broader term and
includes the former7.

K. S. E. Board v. Indian aluminum the act governing the regular production, supply of essential
articles but what is essential Article was left to executive. The supreme court held it as a conditional
legislation8.

Devi Das v. State of Punjab wher the court held it valid that the Executive can levy tax at a rate
between 1% and 2% but if the Govt. levys sales tax at such rates an it “deem fit' it is invalid9.

S.B. Dayal V/s State of up

the apex court meted out the philosophy as “In a modern society taxation is an instrument
of planning. It can be used to achieve the economic and social goals of the state for that reason the
power to tax must be a flexible power”10.

Delegated Legislation in India

(i) Pre-Constitution Period.

As regards pre-Constitution period relating to delegated legislation in India, Queen v. Burah[22] 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

6
AIR 1957 SC 510
7
AIR 1980 SC 882
8
AIR 1976 SC 1031
9
AIR 1967 SC 1895
10
AIR 1972 SC 1168
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 permissible11.

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
authorised 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. .

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 JatindraNath 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.

(ii) Post-Constitution Period

(a) Constitutionality of Delegated Legislation. - As the decision in JatindraNath 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.,

(i) Section 7 of the Delhi Laws Act, 1912;

(ii) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and

(iii) Section 2 of the Part C States (Laws) Act, 1950, were in issue in Delhi Laws Act Case

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App case.889
In Re Delhi Laws Act case may be said to be "Siddhanatawali" as regards constitutionality of
delegated legislation. The importance of the case cannot be under-estimated inasmuch 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
legislature12. 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 in it by the Constitution. Essential
legislative power means laying down policy of law and enacting 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.

CONCLUSION

In the end we can conclude that the delegated legislation is important in the wake of the rise in the
number of legislations and technicalities involved. But at the same time with the rise in delegated
legislation, the need to control it also arises because with the increase in the delegation of power
also increases the chance of the abuse of power. The judicial control apart from the legislative and
procedural control is the way how the delegation of power can be controlled. Thus, the delegated
legislation can be questioned on the grounds of substantive ultra vires and on the ground of the
constitutionality of the parent act and the delegated legislation.

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Indian law institute,cases and materials on Administrative law in india,1966,p220
BIBLIOGRAPHY
BOOK :
M.P.JAIN-PRINCIPLES OF ADMINISTRATIVE LAW
C.K.TAKWANI AND M.C.THAKKER-LECTURES ON ADMINISTRATIVE
LAW
Dr.KAILASH RAI- ADMINISTRATIVE LAW

ONLINE DATABASE SOURCES :

http://en.m.wikipedia.org.wiki
http://indiankanoon.org
http://www.lexology.com
http://www.supremecoutrcases.com