Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

PROJECT OF ADMINISTRATIVE LAW

Delegated legislation & it’s constitutionality with regard to Indian

provision

Submitted to: Submitted by–

Dr Aparna Singh & JINISHA BHATT

Dr. Rajneesh Yadav SEMESTER – 5TH

(ASST.PROF.) ROLL.NO-61

DR.RMLNLU SECTION-A

LIST OF CONTENTS
CHAPTER-1 Introduction

CHAPTER-2 Restraints on delegation of legislative power

CHAPTER-3 Control over delegated legislation

CHAPTER-4 Doctrine of excessive delegation

CHAPTER-5 Constitutionality of delegated legislation

CHAPTER-6 Importance of delegated legislation

CHAPTER-7 Conclusion

CHAPTER-8 Bibliography

ACKNOWLEDGEMENT
I sincerely express my deep sense of gratitude to Dr Aparna Singh & Dr. Rajneesh
Yadav for their extraordinary cooperation, invaluable guidance and supervision. This
project is the resultofhispainstaking and generous attitude.

I owe and respectfully offer my thanks to my noble parents for their constant moral
support and affection which helped me to achieve success in every sphere of life and
without their kind devotion this project would have been a sheerdream.

I sincerely acknowledge the efforts of all those who have directly or indirectly helped me
in completing my project successfully.

It is the kindness of these acknowledged persons that this project sees the light of the day.

I submit this project of mine with great humanity and utmost regard.

CHAPTER-1
 INTRODUCTION

Delegated legislation means permitting bodies beneath parliament to pass their own
legislation. The three main forms of delegated legislation are statutory instruments, by-laws
and orders in Council as well as rules and regulation that are made under various legislations/
Acts.

We have before us a judgment rendered by the apex Court of India, through which the
momentous of delegated legislation is reflected and certain aspects of the same are discussed
in great length. The case is that of In re Art. 143, Constitution of India and Delhi Laws Act
(1912) . The facts of the case being simple wherefore certain Sections of (a) Delhi Laws Act
(13 of 1912), S.7, (b) Ajmer-Merwara (Extension of Laws) Act (52 of 1947), S.2 and (c) Part
C States (Laws) Act (30 of 1950), S.2 are scrutinized by the Court for their constitutionality.
The issue thus being simple, whether they are intra or ulta-vires the Constitution of India.

The six-judge bench took interesting standpoints where the constitutionality of the first two
Acts under the scanner were upheld whereas the second part of Section 2 of the Part C States
(Laws) Act (30 of 1950) was held to be ultra-vires. Most certainly, the judgments of Chief
Justice Kania, Justice Fazl Ali and Justice Bose can said to be perfectly worded and
elaborately dealing with the topic.The importance of delegated legislation or for that matter
sub-delegation is so immense that even in England, which has no Constitution, this aspect
was raised when occasions of conferment of powers on Sub-ordinate bodies became frequent
and assumed large scope, questions about the advisability of that procedure were raised and a
Committee on the Minister’s Powers, what is generally described as the Donoughmore
Committee was appointed.

The Indian Legislature in 1861 and upto 1915 was a Sub-ordinate legislature and not a
sovereign legislature. Therefore under the Crown it was delegated legislative functions.
However, the legislations it made were reviewed by the Crown. This clearly implicates that
delegation of legislative function is not a very recent or new phenomenon. It has been in
existence since time ever on record. The simple reason for this being convenience.

CHAPTER-2

RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER

Even in the earliest years of British Parliament, broad power to legislate by proclamation
remained with the Crown. In 1539, Royal Power to issue proclamation for good order and
governance was recognized by Henry VIII’s Statute of Proclamations were enforced as if
made by Act of Parliament. However, the aforesaid statute was replaced in 1547. Thereafter,
the Acts of Parliament delegated power to the crown to make laws. 19th Century saw a great
increase in the delegation of legislative power to Government departments and other bodies.
Delegated legislation is an inevitable feature of modern governance for several reasons like
pressures on parliamentary time, technicality of subject-matter, the need for flexibility and
the State of emergency. U.K Emergency Power Act, 1920 makes permanent provisions
enabling the Executive to legislate subject to parliamentary safeguards in the event of certain
emergencies.

The validity of statutory instrument may be challenged on two main grounds i.e. the content
and substance of the instrument is ultra vires the parent Act and that the correct procedure has
not been followed in making the instrument. However, since 1998 the scope for challenges to
the validity of delegated legislation has been significantly widened. Human Rights Act, 1998
casts a duty to interpret the legislation consistently with the European Convention Rights
where it is possible to do so. Thus, the requirement of a valid subordinate law is that it should
be in conformity with European Convention Law.

The doctrine of severability has also been in the context of delegated legislation. It has been
held that where either on the grounds of substance or procedure an instrument is to some
extent defective this does not mean necessarily that whole instrument is a nullity. It may be
operative to its lawful extent or be binding on the persons not affected by the defect of
procedure.1 The decision of such severance is permissible only when after deletion the
unlawful part of substance of provision remains essentially unchanged in purpose and effect
from what had been intended.2

CHAPTER-3

CONTROL OVER DELEGATED LEGISLATION

1
Dunkley v. Evans, (1981) 1 WLR 1522
2
DPP v. Hutchinston, (1990) 3 WLR 196
The controls over delegated legislation operate at two levels:

(a) At the point of delegation of power by the legislature

The question here is: how much power should the legislature be permitted to delegate? This
is known as pre-natal control. The question at this stage is whether the Legislature should be
free to delegate any amount of legislative power to the Executive, or the Legislature should
be restrained in this respect?

(b) At the point of exercise of delegated power by the Administration

The question here is subject to what restraints and safeguards should the delegate function in
exercising the delegated legislative powers? In short, what control mechanism should be put
into being so as to minimize the hazards of the technique of delegated legislation? This is
known aspost- natalcontrol.

The various controls can be listed in the following manner –

1) Judicial control
2) Procedural control
3) Parliamentary control

1) Judicial control

Delegated legislation is also subject to control through the Court. A piece of delegated
legislation can be deemed by the Court to be ultra vires. This means that the body that
created the delegated legislation acted beyond the powers conferred to them by
statute. An example where a body would have acted ultra vires would be if the
delegated legislation goes beyond what Parliament intended or where the procedural
rules to be followed in relation to the delegated legislation have not been followed.
Any Court action which is brought challenging delegated legislation is done through
the means of Judicial Review. If the Court finds that a piece of delegated legislation is
ultra vires then that legislation can be declared void.

a) Doctrine of ultra vires

The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine
envisages that an authority can exercise only so much power as is conferred on it
by law. An action of the authority is intra vires when it falls within the limits of
the power conferred on it but ultra vires if it goes outside this limit. When a piece
of delegated legislation is declared to be ultra vires, it is void and unenforceable. It
cannot affect the rights and duties of any person. Until a rule is declared invalid by
a court, it is presumed to be valid. The doctrine of ultra vires has two aspects –
 i) Substantive– which implies that the delegated legislation goes beyond the scope
of power conferred by the parent statute, or it is in conflict with the delegated
statute and hence is invalid.

ii) Procedural – implies that in the making of delegated legislation, the rule making
authority may be required by the parent statute to follow certain rules. These
procedures can be mandatory or directory. Non-observance of mandatory
procedure would make the rules so made ultra vires.

Implied restrictions

To strengthen judicial control over subordinate legislation, the courts do not confine
themselves merely to the phraseology of the provisions of the parent statute, but go beyond it
and imply certain restrictions on the delegated legislative power.3 The underlying idea is that
the courts do not envisage that the rule making.

a) Exclusion of court’s jurisdiction

Unless there is a specific grant of power to it for the purpose access to the court is not to be
denied save by clear words to that effect in the statute. The courts jealously guard the right of
the people to take recourse to the courts to settle their disputes.

b) Retrospective rules

Another implied restrictions is against making rules with retrospective effect. There is no
prohibition in the Constitution of India against ex post facto laws, except in the area of
Criminal law. The reason underlying the proposition is that retrospective rules may
prejudicially affect the vested rights of the people and so it is proper that only the legislature,
and not the delegate, makes such rules.

c) Delay in rule making

A usual practice for parliament is to leave to the executive to bring an Act enacted by it into
force at some future date. The judicial attitude is not to interfere in such a situation and leave
the matter to the executive but if the delay is hampering the operation of law then judiciary
can interfere.

d) Exclusion of judicial review

A formula used at times in the interpretation of statutes is that the rules enacted under the
Act would have effect as if the rules were enacted or included in the Act itself. Its legal
effect is not beyond doubt as the judicial review has not yet been definitive about its
implications.

2) Procedure control

3
Halsbury’s Laws of India
 It is not always possible for Parliament to exercise effective control over delegated
legislation. So, procedural safeguards are necessary:

Methods of Procedural Control:

 Prior Consultation of Interests which are likely to be affected by the proposed

delegated legislation.
 Prior publicity of rules and regulations.
 Publication of delegated legislation being made mandatory.

3) Legislative and parliamentary controls

a) Memorandum of delegation

A rule of procedure of each House of Parliament requires that a bill involving proposal for
delegation of legislative power must be accompanied by a memorandum explaining such
proposals and drawing attention to their scope and stating also whether they are of
exceptional or normal character.

b) Laying Procedure and judicial review

The laying procedure does not exclude judicial review of delegated legislation. Laying of
rules has no effect on their legal validity. Laying confers no sanctity or immunity on the
rules. The laying provision has no impact on judicial review on the rules or on the doctrine of
ultra vires.

c) Committee on Subordinate legislation

The parliamentary control is further exercised through two committees on subordinate

legislation. Each House of Parliament has a committee subordinate legislation. The LokSabha
Committee and the RajyaSabha Committee. Their existence keeps the administration on its
guard, and discourages it from doing things which it discourages it from doing things which
the Committees have criticized, and thus the administration becomes more careful in using its
power of rule making.

CHAPTER-4

DOCTRINE OF EXCESSIVE DELEGATION

In applying the test of “excessive delegation”, apart from considering the breadth of the
discretion conferred by an Act to promulgate delegated legislation, the courts also examine
the procedural safeguards contained in the Act against misuse of power, as for example,
laying of the ruled before the Legislature, consultation with the interests affect. A completely
unlimited blanket power where there is neither any guidance to the delegate, nor any
procedural safeguards against any improper exercise of power by the delegate can be held
invalid as excessive delegation.

Following case laws would elaborate on the mentioned doctrine –

 H.R Banthia v. UOI4

S 5(2)(b) of Gold ( Control) Act, 1968 empowered the Gold Administrator, so far as it
appeared to him to be necessary or expedient for carrying out the purposes of the Act, to
regulate the manufacture, distribution etc. of gold.

SC declared the provision invalid because it was very wide and suffered from the vice of
“excessive delegation” Court also took into consideration the fact that the power of the
administrator was not subject to any procedural safeguard while that of the Government
under S 114 of the same was, thus this power was even broader than that conferred on the
Government.

 St. Jonhn’s Teachers Training Institute v. Regional Director, NCTE

It was held in this case that question whether a particular legislation suffers from the vice of
excessive delegation has to be examined in the context of subject matter, the scheme, the
provisions of statute including its preamble and the facts and circumstances in the
background of which statute is enacted.

SUB-DELEGATION

Sub - delegation = When a body or person receive delegated powers indirectly under a
statute.This appears in conflict with the general rule that a delegate is not able to delegate
further, “delegatus non potestdelegare.”In India sub delegation without express authority is
invalid.

CHAPTER-5

CONSITUTIONALITY OF DELEGATED LEGISLATION

4
AIR 1970 SC 1453
The term ‘constitutionality of administrative rule-making’ means the permissible limits of the
Constitution of any country within which the legislature, which as the sole repository of law
making power, can validly delegate rule-making power to other administrative agencies.

The question of permissible limits of the Constitution within which law-making power may
be delegated can be studied in three different periods for the sake of better understanding:

1. When the Privy Council was the highest court of appeal :

The Privy Council was the highest court of appeal from India in constitutional matters till
1949. The question of constitutionality came before the privy Council in the famous case of
R v. Burah5-

An Act was passed in 1869 by the Indian legislature to remove Garo Hills from the civil and
criminal jurisdiction of Bengal and vested the powers of civil and criminal administration in
an officer appointed by the Lt-Governor of Bengal. The Lt-Governor was further authorized
by S.9 of the Act to extend any provision of this Act with incidental changes to Khasi and
Jaintia Hills. One Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills
and was sentenced to death. The Calcutta High Court declared S.9 as unconstitutional
delegation of legislative power by the Indian legislature on the ground that the Indian
legislature is a delegate of British Parliament, therefore, a delegate cannot further delegate

The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the
constitutionality of S.9 on the ground that it was merely a conditional legislation.

The decision of Privy Council was interpreted in two different ways –

a) One interpretation was that since the Indian legislature is not a delegate of British
Parliament, there is no limit on the delegation of legislative functions.
b) Second interpretation said that since the Privy Council has validated only conditional
legislation, therefore, delegation of legislative power is not permissible.

The doctrine of conditional legislation was again applied by the Privy Council in
Emperor v. Benoari Lal6 when it upheld the constitutionality of an ordinance passed by
the Governor-General for the establishment of special courts and delegated power to the
provincial governments to declare this law applicable in their provisions at any time they
deem fit.

Therefore during the period the Privy Council was the highest court of appeal, the
question of permissible limits of delegation remained uncertain.

2) When Federal Court became the highest court of appeal

5
ILR 4 Cal 172(1879)
6
AIR 1945 PC 48
 The question of constitutionality of delegation of legislative powers came before the
Federal Court in JatindraNath Gupta v. Province of Bihar7

In this case the validity of S 1(3) of the Bihar Maintenance of Public Order Act, 1948 was
challenged on the ground that it authorized the provincial government to extend the life of
the Act for one year with such modifications as it may deem fit. The Federal Court held
that the power of extension with modification is unconstitutional delegation of legislative
act. In this manner for the first time it was laid down that in India that legislative powers
cannot be delegated. However, Fazal Ali, J.in his dissenting opinion held that the
delegation of the power of extension of the Act is constitutional because according to him
it merely amounted to a continuation of the Act.8

3) When SC became the highest court of appeal

There were a few (Delhi being one of them) Part C States, under the direct administration
of the Central Government without having a Legislature of their own, Delhi being one of
these. Parliament had to legislate for these States. As it was very difficult for Parliament
to find the necessary time to do so in view of its other manifold engagements. Parliament
passed a law .the Part C States (Laws) Act , 1950. The Act authorized the Central
Government to extend to any part C State, with such restrictions and modifications as it
thought fit, any enactment in force in Part A State while doing so, the Government could
repeal or amend any corresponding law ( other than a Central Law) which might be
operative at the time in the Part C State concerned.

SC was called to adjudge the validity of this above-mentioned provision. On two points there
was a unity of outlook. Firstly, Parliament as well as State Legislature in India need to
delegate the legislative power and Secondly, there should be some limits set on their capacity
to delegate.

The judges, however, differed on the question as to what were to be the permissible limits
within which the Indian Legislature could legislate its delegated power?

By a majority the Court laid down that the Legislature should no delegate its essential
legislative function which comprises the formulation of policy and enacting it into a binding
rule of conduct.

CHAPTER-6

7
AIR 1945 PC 48
8
Id., p. 194
 IMPORTANCE OF DELEGATED LEGISLATION

Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can
be amended and/or made without having to pass an Act through Parliament, which can be
time consuming. Changes can therefore be made to the law without the need to have a new
Act of Parliament and it further avoids Parliament having to spend a lot of their time on
technical matters, such as the clarification of a specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant expert
knowledge. By way of illustration, a local authority can make law in accordance with what
their locality needs as opposed to having one law across the board which may not suit their
particular area. A particular Local Authority can make a law to suit local needs and that Local
Authority will have the knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it arises without having
to wait for an Act to be passed through Parliament to resolve the particular situation.

Finally, delegated legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of 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.

CHAPTER-7
 CONCLUSION

Inspite of the elaborate procedures laid out for making laws, it has to be pointed out that the
laws enacted by Legislatures provide a fertile ground for numerous legal controversies and
the accomplishment of the objects underlying the socio-economic legislations gets postponed
indefinitely on account of challenges against the statutes enacted before the Courts of Law.
Plenary power of law making are entrusted to elected representatives, but in reality, the
political government, instructed by the bureaucracy, gets bills passed through either by the
aid of whip or by other methods. Thus law making has remained, more or less, exclusive
prerogative of a small cross-section of elites. It affects not only the quality of the law made
but reinforces centralised system of power. There must, therefore, be social auditing by
public at large. Constitutional legitimation of unlimited power of delegation to the executive
by the legislature may, on critical occasions, be subversive of responsible government and
erosive of democratic order. Parliament control over delegated legislation should be living
continuity as a constitutional necessity.

CHAPTER-8
 BIBLIOGRAPHY

1. Administrative Law, SP Sathe, 7th Edition,2004

2. Principles of Administrative Law, M.P Jain and S.N. Jain, 7th Edition,2011

3. Administrative law by C.K Takwani