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CtUSTi: R - I II

DEI.lCATrn ri l.J • I :OIAIJ ST TlJTE,..

Fa:rt - I ~pto 1935

The East India C.ompany first started its role as a bus·ness conc~rn

in India , but in course of time it ::i cau ired political P<>wer and influence

v1ni ch pass ed over to +he Crown in England. b proper le i sl;:iture was

provided ror I ndi <' till the erforcene nt of the provisi ons of the Act of

1861 . Viewed in this perspe ctive the Indian Cou~c;ls ' Act 1861 is a

land-~ ark in the legislative developme nt .

The Indian Councils ' Act, l CC l (under Se ct ion 2?) gave to t he

Governor- General- in- Gouncil \·.rit h additiona l nominat ed members power to

make l av:s for the \·hole of India . The Cons ti tutiona 1 position of the

l.ove,..nor- General therefore , W-'lS that the King- in- Pa!'liamen t v:.1s the

overeign body ~ hlch passed the ndian Councils ' Act and the fo-rr.cr was

!::Ubordin ate to the l atter . He could not do any thing for which there

was no 1-'a r 1 iaf!'!entary auj.. horizat ion.

Ac- aga inst this , the Governor- Gener~ l-in-Coun c: l with

leglshtiv e pm.ers es"tab li shed under the Indian Council,; ,1ct st0od ln

.; dif-'"crent posi-'-ion . Itc- chart er was t he Indian Counc: h' Act. Its
po\'. ers were necessari ly defined and unlimited . That pov•er aga.:.n at dny
time could be '.',ithdrawn a ltered ar.d expanded or further curtc>iled .

~-o reover , s th e po\;ers were conferred by an ct of ':3rit i sh Pa;:-liarnent,

the auesti on v.hether the action of Governo: - Gcnera l-in- Council 'n his

legislati v e capacity was v.:.thln or :thout :ts l egislativ e po\·er "@S

always capab le of being raised and decided by a Co 1rt of l u•, • According
l
to Dicey the distinction between sovereign legislature and a subordinate

law- making body i s drawn from tne fact that the subord.:.nate l egislatures

have a limited pov er of making laws . It is, therefore, clear that Indian

legis l a ture in 1861 and upto 1915 wa s a subordin:.te legislature and not

a sovereign l egis l ature. The fact ~ay not go unnoticed that the

Covemn.ent of India v-•as unitar y and not federal . There v1&s no distribution

of leg~slati ve rovers as bet 11-Jeen the Centre and the different Jrovinces.

Unlike En gl a nd, v.he re the legis l ature \"as supreme and ~ a!" in a

position to direct effectively the actions of the executive govemmert,

in lndia the position was different and the Governor Genera l \Jos appointed

by the Cro,·.n :=1nd even a fter the success ive ex pans ion of legis l at· ve body

before the C.Overnment of India Act 1915 in numbPrs it had no control over

the executive. Another fact i n respect of the Ind.:.an l egislature

functioning prior t o the Govern,, ent vf India Act of 1915 v•" s that the

control from the Secretary of State \"as jus tified on the ground that the

provincial legislatures were only enla rgement of the executive government

for the purpose of making laws and \.ere no more than mere cdvisory

bodies without any semb l an ce of power.

In the opinion o f Kania , C. J . the executive govern "X:!nt of India

was not responsible to the Indian l egis Ja ture and the composition of

Indian l egis l ature v-•as such that the executive Cffi cers2 t og ether·· ith the nominate<

1. Dicey ' La,.. o~ the Constitution ' p . 99 .

2. Re . Delhi Lawe- Act 1951 5 . C. K. 747, 762.
 members, Constituted the majority in the legislature. Obviously the

Legislative Q>uncil was practically a creature of executive government

of India and its functions were practically limited to registering the

3
decrees of the Exerutive Government.

I)Jring this period the judicial opinion was that the legislature could

not delegate its law-makirg power. It could only permit conditional legislation

and not delegated legislation. lnspite of this denial we find that in a number

of statutes the power has been delegated in some form. A brief survey of

these statutes is given below.

Under the Police Act, 1861 the Inspector General of Police ¥11Els

effl>Owered to make orders and rules from time to time subject to the a ppr oval

of tile State Government as he shall deem expedient relative to the organisation,

classification and distribution of the Police Force the places at which the
4
ment>ers of the force shall reside etc.

In the Stage carriages Act, 1861 the State Government was effl)Owered

by notification in the official Gazette to make rules to carry out the

purposes and objects of this Act in the territories under its administration
5
or any part of the said territories. Such a power of making rules and
6
issuing orders was not delegated in th~aste Lands ( Cladms ) Act 1863.

3. Ibid 763.

4. The Police Act 1861.

5. The Stage carriages Act, 1861.

6. The Waste Lands .&et ( Claims ) 1863.

J7
 ---,

This type of delegation of legislative power to the State Governments

7
continued in several other Acts.

The cases of delegation of rule-rraking power continued Dill tiplying.

In the Land Iq>rovement Loans A.et, 1883, the Provincial Government was

effl)•were4 to make rules by notification in the offiei~l Gazette consistent

with this Act to provide for the manner of making applications for loans,

the Officers by Whan loans may be g1'8nted etc.8

Some Acts authorised sul>-delegation of powers. For example under the

Punjab District Boards Act, 1883; the District Boards were given powers to

delegate them to the Chairrran, Vice-Chainnan, Secretary, Civil Surgeon,

Medical OfHcer of Health or any officer of the Department of Public

Instruction under sections 20 and 27, with the previous sanction of the

Provincial Governnent. The Provincial Government, was also empowered to make

rules ooder this Act by notification for any class of such votes for prescribing

the manner in which the oath or 'affirmation of allegiance under section 11-A

shall be administered etc. The Provincial Government was also given further

rule-making power to invest with judicial powers officers appointed to enquire

0
into the condlct of eleetions! The District Boards were empowered in this

behalf by the Provincial Government to make regulations for canying out all
11
or any of the purposes of this Act. The Provincial Government was empowered

further by notification in the Gazette to exclude local areas from the operation
12
of the Act. In the lndianTea Cess Act 1903 Central Government was given the

7. See also Outh Taluqdars, Relief Act 1870, the Indian Olri stian Marriage Act,
1872. The Northern India Ferries Act, 1878, Prison &ct 1894. The Indian
Lunacy Act, 1912.
8. Section 10(<1..) and { b), The Land Imp,rovement Loans ~ ct 1883.
9. Section 55( a), The Punjab District Boards Act, 1883.
10. Section 55 (A) Ibid.
11. Section 66 (1) Ibid.
12. Section 67 Ibid.
·,/J,
---------------------------- -~----

power to make rules after consulting the Board and after previous µiblication
13
to carry out the purposes of this A.ct.

The Patents and Designs Act 1911 empowered the Central Government to

make rules. Under this Act it was laid down that, " The power to make

rules under this section shall be subject to the condition of the rules
14
being made after previous µiblication." In the sub-section 2-A it was

further laid down, " Nothing in sub-section ( 2) shall apply in the case of

rules made for the purpose specified in clause (eee) of sub-section (l)J

and any such rules may modify any of the provisions of this Act, so far as
It 15
may be necessary for that purpose. Section 77 ( 3) of the Act also

specified, " All rules made under this eection shall be published in the

official gazette and no such publication shall have effect, as if enacted

16
in this Act. •
../
'
In some of the Acts, the High Courts were empowerd to make rules,

consistent with the Act. Cxle such case is related to the " The Indian

Companies &ct, 1913, section 216( l ).

Olring the war period from 1914 to 1918, extensive use of delegated

legislation was made. The executive in the context of the exigencies of war

got the blanket authority to make rules and issue orders whereever it liked

without a grain of salt.

In the cantonment Act, 1924, the Central Goverrwent was empowered

to meke rules after previous publication consistent with this &ct to

T~
13. Section 7 ( 1) and ( 2) . The Indian "Cess A ct, 1903.
"1
y 14. Section 17(2) The Patents and Design Act, 1911.
15. Section 77 (2-A) Ibid.
16. Section 77 (3) Ibid.
 regulate all or any of the following matters for the purpose of holding

of elections under this Act, namely s (a) the division of a Cantonment

in wards, (b} the determination of the number of members to be elected

17
by each wards . Under this Act power was also delegated to the Cantonment

Boards to make bye-laws with the a pproval of the Central Government,

consistent with this Act to determine the days and hours during which

the markets and private slaughters houses be rana in opened and other

allied matters. Under this Act, the executive officers were given powers

to manage the affairs of the Boards.

This delegation of rule-making powers to the subordinate authorities

continued a ftei,jvards also. Under the Criminal Tribes Act, 1924, the

Provincial Governments were enpowered to vary specified area or place of

residence of criminal tribes and to restrict or settle criminal tribes in

..l ..
,...._ . 18
an '-"other province.

In the Provident Fund Act , 1925, also the Central Government was

empowered to make rules after previous ~blication and notification in the

official gazette for carrying the puxposes of this Act. 19

The practice, further continued in the Coal Grading Board Act, 1925.

The Indian Succession Alct , 1925, the Indian Trade Union /\\ct, 1926. In the

last one Act besides the power to make reg..ilations, having been delegated

to the appropriate governnents, publication of regulations in the

official Gazette, previous t o their enforcement was made mandatory. It was

also laid down that the reg..ilations will be made without prejudice to the

17. Section 111, The cantonment Act, 1924.

10. Section 12 and 13, the Criminal Tribes Act, 1924.
19. Section 12 (l), The Provident Funds &ct, 192:>.
 4 _,._

generallity of the foregoing power for the purpose of carrying into

20
effect the provisions of the Act. There was similar delegation of

rule-making power in the subsequent Acts. In the Indian Forests A.ct ,

1927, the Provincial Goverrments were ef'll)owered to issue notifications and

make rules regulating the disposal of forest produce besides making rules
21.
to regulate transit of forest produce.

In the Indian Tarriffs Act, 1934, the Central Government was

empowered to alter protective duties by notification in the official

22
gazette. It was also laid down in the Section 12 of the Act that" all

notifications published under this Act may be cancelled°>' the authority

publishing the same".

Thus) the delegated legislation was carried out under the various
( Central Alcts. Some of them have been referred to .~ome general features

may be noted here=-.unders ( i) Pc,,ver of ma king rules was delegated to the

Central and Provincial Governnents and in some ~ cts to the local bodies

like Corporations, Cantonment Boards etc. (ii) Previous publi0'3tion of

rules in the official gazettee was necessary. (iii) Powers to make

regulations on the subjects delegated to the Provincial Governments besides

the issue of notifications in the Provincial subjects was made mandatory

on the provincial governments.

20. Sections 29( 1) and 30 ( 1) and ( 2), The Indian Trade Un ion Act.
21. Section 41, The Indian Forests Act, 1927.
22. Section 4, (1) and ( 2) The Indian Tariffs Act, 1934.

V\ l
t Part - II s 1935 Onwards.

Delegation of rule-making power has been carried on an increasing scale

from 1935 onwards. The nature of the legislature upto 1950 continued to be

the same. It was a creature of the British Act. Hence the powers and

jurisdiction were defined and limited.

The nature of the Indian legislature went under change under the

Constitution ~ct of 1950. It became a plenipotentiary law-making body. It

was not subordinate to any outside agency like the British Parliament.
-c However, it is also a creature of the Constitution. In India Parliament is
'
not a sovereign law-ma.Icing body but a suprene law-na king body subject to the

Constitution. TI-AJs the Indian Parliament is more like the United States'

Congreli.s than the British Parliament •

.f

The Statutes made under the period have conferred various tYPes of

powers on authorities - the Central Government, State Governments and other

1
bodies. The prevailing form of power has been the power to make rules,

ragulations and bye-laws. As a general practice the provision for making

rules has been provided in one section of the &ct, while in sorre other
2
cases such a provision is there in several sections. The powers is given

in general terms in one clause of the delegating section, followed by

another clause specifying some matters.

The recipients of delegated legislative power have been the Central

1. Under Section 21 of the Gneral Clauses Act, 1897 the power to issue
notifications orders, rules or bye-laws includes a power exercisable in
the like uanner and subje,.~o like sanctions and conditions if any to
add to amend, vary or res~ee any notifications, order, rules or bye-
laws so issued.
2. The Motor Vehicles Act, 1939, the Factories Act, 1948, The Tripura Land Reve.Y\J,,\.l,
o...w:t Lcw-4. . Reforms Act, 1960.
Goverrnent in a normal way. But in some cases the power is delegated to other

authorities too which are subordinate to the Central Government to the State

Government and also to the authorities which are independent of the O!ntral

Government. The authorities which are not under the Central Government are
3 4 5
for exarrple, the President, The State Goverments, the Supreme Court,
6 7
the High Courts, and Statutory Corporations. The other categories of

recipients includes the Central Board of Revenue,8 and the Inspector

9 10
General of Police, cantonment Boards, the Joint Canrnittee of both
11 12
Houses of Parliament, the Union Public Service Conmission, and others.

Nature of Delegations There have been two types of delegation of

powers normal and abnormal. The normal practice of delegation is to grant

'
power in general terms and thel'e ~ a few subjects in particular and without
prejudice to the generality of the foregoing powers. Abmormal delegation

3. Section 12, Representation of Peoples Act, 1950.

4. Section 13 (3), Central Sales Tax Act, 1956.
5. Section 643, Canpanies Act, 1956.
6. Section 41( 1) Special Ma rriage Act, 1~4, Section 34, Advocates Act, 1961
Section 10 Arbitration ( Protocol and Convention) Act, 19371 section 44
Arbitration Act, 1940, Section 45 Banking Companies Act, 1949.
7. The Damodar Valley Corporation Act, 1948, The Employees State Insurance
Act, 1948, The Tea Act, 1953.
8. Section 20 and 85, Estate Duty~ct, 1953.
9. Section 12, The Pol ice Act, 1961.
lo. Section 282, The cantonments Act, 1924.
11. Section 9, The Salaries and Allowances of Members of Parliament Act, 1954.
12. Section 97, The Delhi Municipal Corporation, Act, 1957.
4-
l
takes many fonns. Wide powers are delegated through flexible phrases.
13
For exafl'l)le, to give effect to the provisions of the Act, for carrying out
14
the purPoses of the A4ct, to carry into effect the provisions of this
15 16
section, such other matters as may be neceasary or expedient. A

tendency has been noticed that a clause is incorporated in some statutes

by which del egated legislatiion has effect notwithstanding anything

17
inconsistent contained in any other laws. Such a clause widens the

scope of delegation.

In some of the Acts the Parliament has empowered the subordinate

authorities to declare that contravention of sub-laws made thereunder shall

18
be a penal offence. However, it may be mentioned that all A.cts do not
19
contain such provisions.

Under some of the Acts the Government is empQwered to exten~a law to

different persons, areat;, industries, establishments, 3uch laws may be

classified thus, Statutes which authorise the Government to extenl other

20
Statutes by issuing notifications to this effect. There were laws which

13. Section 26(1) The Khadi and Village Industries Conmission Act, 1956.
14. Section 27( l), The Coal Bearing Areas ( Acquisition and Development )
let, 1957.
15. Section 10( 3), The Life Insurance CorpQration Act, 1956.
16. Section 4 (2-C), The Prevention of Food Adulteration, Act, 1954.
17. Section 4(1), The Administration of Evacuee Property Act, 1950.
'
Section 34(3), Reserve and Auxill'ary Air Forces Act, 1952, Section 44{2)(m)
18.
Air CorPorations Act, 1953. ~

11. Notaries Act, 1952, Salt Cess Act, 1953.

20. Section 1(5), Employees State Insurance Act, 1948, Section 3(2) HindU
Minority and Guardianship Act, 1956.
y
 21
empower the Government to extent!. provisions of other Acts. The first

type of extension is where the Parent Act empawers the Government to

extend the provisions of the Act so as to cover matters which are not

specified in the Act. The second type is the territorial extension of the

Act. In this case, the government is authorised to extend laws to new

localities. In the third category the Government is authorised to extend the

22
life of a dying Statute.

Mention may be made of a few Statutes which anpower the Government to

suspend or relax provisions of these Statutes. 23 Then there are statutes

which empower the Government to grant exemption to certain persons, areas,

industries, establishments from the operation of such statutes. 24 Some of

the Statutes also provide delegation of paw er to the government to make

necessary modifications in the statutes themselves. Besides there are a

few statutes concerning reorganisation of states or acquisition of

territories which empower the government to make necessary changes and

modifications in these statutes. Such statutes further entrust the government .

with the power to repeal or anend statutes or provisions thereof for purposes
25
of such adaptions and modifications. The Government is also further,

21. Section 3 cantonments ( Extension of Rent Control Loans) Act, 1957,

section 10, Oadra and Nagar Haveli Act, 1961 and the Delhi Laws Act, 1912.
The Hindu Adoptions and Maint enance Act, 1956.
22. Section 1(3) The Bihar Maintenance of Public Order Act, 1947.
23. The Tea Act, 1953, the Coir Industry Act, 1953, the Cardamon.
24. Section 27, Forward Contracts Regulation Act, 1952, the Minimum wages Act,1948
the Motor Workers Transport Act, 1961.
25. Section 44, The Bihar and West Bengal ( Transfer of Territories ) Act, 1956,
The Andhra Pradesh and Madras ( Alteration of Boundaries) Act, 1959, The
Bombay Reorganisation &ct, 196o.
 4C

empowered to ditect, by notification in the official gazette that prtvisions

of these statutes shall, in their application to certain cases, be subject

to such conditions, exceptions and modifications as may be specified in the

26
notification.

iA few Statutes empower the Government to issue necessary orders and make

such provisions or give such directions for the removal of doubt or difficulty,
27
which may arise in the operation of the Act.

In sorre of the statutes, the provisions is there to oust the jurisdiction

28
of the Courts. Then thete are quite a few statutes which authorise the making

of rules and regulations in the field of taxation. Such statutes may be

w
classified thus1 Statutes which e"l>oer the governnent to fix rates of tax,
"
duty, cess or fee. This class of Statutes are placed in three distinct

groups - Acts which eOl)ower the government to fix rates of tax, below

specified upper limiti;9 Acts which empower the government to determine the
30
rate of duty within the upper and lower limits, and the Acts v.hich

eq,ower the Government to avail of wide powers about the fixing of rates
31
without mentioning or specifying any limits.

26. The Marine Insurance Act, 1963.

27. Section 19-A, The Bnployee s ' Provident Fund Act' 1952.
28. Section 641( 1), Companies '4ct, 1956.
29. Section 2, Iron, ere, Mines Labour Welfare Cess Act, 1961, the Rubber
Act, 19471 Produce cess Act, 1966.
~. Section 3 ( l), The Coal Mines Labour We lfare Fund Act, 1947.
31. Section 10(1) The Central Silk Board &ct, 1948, The Cotton Textiles
Cess Act, 1948.