ADMINISTRATIVE LEGISLATION: ITS MERITS AND DEMERITS

A project report submitted in partial fulfillment of the course Administrative Law for the
requirement of degree of B.B.A., LL.B. (Hons.) for the Academic Session 2020-21

Administrative Law

Researched and Submitted By:

Amisha Prakash
B.B.A., LL.B. (Hons.)
3rd Year, 6th Semester
Roll no. 2005
Accession and Supervision:
Prof. Dr. Ali Mohammad & Prof. Dr. Fr. Peter Ladis F.
Faculty: Administrative Law

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA
Administrative Legislation: Its Merits and Demerits

ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.

First of all, I am very grateful to my subject teacher Prof. Dr. Ali Mohammad & Prof. Dr. Fr.
Peter Ladis F. the kind support and help of whom the completion of the project was a herculean
task for me. He donated his valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect data.

I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and family, who always stand aside
me and helped me a lot in accessing all sorts of resources.

I thank all of them!

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Administrative Legislation: Its Merits and Demerits

DECLARATION

I Amisha Prakash declare the work entitled “Administrative Legislation: Its Merits and
Demerits” being submitted to Chanakya National Law University for the project in the subject of
“Administrative Law” is original and where the text is taken from the authenticated books,
articles or web articles, appropriate reference is given. It is true in my best of knowledge.

(Signature of the Candidate)

Amisha Prakash Roll No :2005

Chanakya National Law University

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Administrative Legislation: Its Merits and Demerits

Contents
1) INTRODUCTION ................................................................................................................... 5
1.2) Research Questions .......................................................................................................... 7
1.3) Objectives ......................................................................................................................... 7
1.4) Hypotheses ....................................................................................................................... 8
1.5) Sources of Data ................................................................................................................ 8
1.6) Limitation ......................................................................................................................... 8
2) FORMS OF ADMINISTRATIVE LEGISLATION ............................................................... 9
3) CONTROL MECHANISM OF ADMINISTRATIVE LEGISLATION IN INDIA ............... 13
4) CONSTITUTIONALITY OF ADMINISTRATIVE LEGISLATION ................................. 16
5) CURRENT MONITORING OF ADMINISTRATIVE LEGISLATION ............................. 20
6) MERITS OF ADMINISTRATIVE LEGISLATION ............................................................ 22
7) DEMERITS OF ADMINISTRATIVE LEGISLATION ....................................................... 24
7.1) Excessive delegation as ‘Abdication’ ................................................................................ 26
7.2) Excessive Delegation and Constitutional objections ......................................................... 27
8) IMPACT OF COVID- 19 ON ADMINSTRATIVE LEGISLATION .................................. 28
8.1) Disaster Management Act, 2005 (DMA) .......................................................................... 29
8.2) Epidemic Diseases Act, 1897 ............................................................................................ 29
8.3) Enforcement of Section 144 .............................................................................................. 32
9) CONCLUSION AND RECOMMENDATIONS .................................................................. 34
BIBLIOGRAPHY ......................................................................................................................... 37
Books Referred: ........................................................................................................................ 37
Internet /Web Resources Referred: ........................................................................................... 37
Articles Referred ....................................................................................................................... 37
Statue/Code/Acts Referred........................................................................................................ 37

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Administrative Legislation: Its Merits and Demerits

1) 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. So, delegated legislation is a process by which the executive authority
is given powers by primary legislation to make laws in order to implement and administer the
requirements of that primary legislation.

Delegated legislation has been defined by Salmond as “that which proceeds from any authority
other than the sovereign power and is therefore dependent for its continued existence and validity
on some superior or supreme authority”1 Explaining the meaning of the expressions “delegated
legislation” and “delegating legislative power”, Fazl Ali, J. in Delhi Laws Act case observed:

“…the expressions “delegated legislation” and “delegating legislative power” are sometimes
used in a loose sense, and sometimes in a strict sense. These expressions have been used in the
loose sense or popular sense in the various treatises or reports dealing with the so-called delegated
legislation... There can be no doubt that if the Legislature completely abdicates its functions and
sets up a parallel Legislature transferring all its power to it, that would undoubtedly be a real
instance of delegation of its power. In other words, there will be delegation in the strict sense if
legislative power with all its attributes is transferred to another authority”.2

As was observed by Lord Coleridge, C.J.3 in, the word delegation implies that powers are
committed to another person or body which are as a rule, always a subject to resumption by the
power delegating.4 The word ‘delegate’ means little more than an agent. An agent exercises no

1
Salmond, Jurisprudence, 12th Edn., p. 116
2
Kania, C.J., In re. Delhi Laws Act, A.I.R. 1951 S.C. 332(338).
3
25 QBD 304
4
As cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334, 338 (para 8) : AIR 2005 SC 773

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Administrative Legislation: Its Merits and Demerits

power of his own but only the power of his principle.5 In general, a delegating body will retain not
only power to revoke the grant, but also power to act concurrently on matter within the area of
delegated authority except insofar as it may already have become bound by an act of its delegate.6
It is designate by various names, such as, rules, regulations, bye-laws, orders, schemes etc.7 As
pointed by Ray, C.J. in Sukhdev Singh v. Bhagatram8 , Rules, Regulation, Schemes, Bye-laws,
Orders made under Statutory powers are all comprised in delegated legislation.

Emphasizing the necessity of subordinate legislation, the Supreme Court in Gwalior Rayon Mills
Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax9 observed: most of the modern socio-
economic legislations passed by the Legislature lay down the guiding principles and the legislative
policy. The Legislatures because of limitation imposed upon by the time factor hardly go into
matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility,
elasticity, expedition and opportunity for experimentation. The practice of empowering the
executive to make subordinate legislation within a prescribed sphere has evolved out of practical
necessity and pragmatic needs of modern welfare State.

This power of delegation is a constituent element of the legislative power as a whole.10 So long as
the Legislature indicates in the operative provisions of the statute the policy and purpose of the
enactment, the mere fact that the legislation is skeletal or the fact that a discretion is left to those
entrusted with administering the law, is no basis for a contention that there has been excessive
delegation of legislative power, if the power or discretion has been conferred in a manner which
is legal and constitutional.11

The recent outbreak of Covid-19 and the government response which followed were
unprecedented. It has had far-reaching impacts on the lives of citizens. The most stringent
measures have been a nation-wide lockdown, travel ban, shutting down industries, schools and

5
Ibid
6
Battelley v Finsbury Boroughe Council, 1958 LGR 165
7
See, Tata Iron & Steel Co. v Workmen, Air 1972 SC 1918, K.I. Shephard v. Union of India, Air 1989 SC 568.
8
Sukhdev Singh v. Bhagatram AIR 1975 SC 1331, 1337: (1975) 1 SCC 421
9
Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax A.I.R. 1974 S.C. 1660 (1667).
10
Vasanlal Maganbhai Sanjanwala and the Pratap Spinning and Manufacturing Co. Ltd. v. the State of Bombay, A.I.R.
1961 S.C. 4; M/s. Tata Iron and Steel Co. Ltd. v. Workmen of M/s. Tata Iron and Steel Co. Ltd., A.l.R. 1972 S.C.
1917
11
Jyoti Parshad v. Union Territory of Delhi, A.I.R. 1961 S.C. 1602

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Administrative Legislation: Its Merits and Demerits

universities, mandatory quarantines etc. This affects various rights such as the right to liberty and
the freedom to travel and assemble. Criminal proceedings have also been initiated those violating
these administrative directions. The justification is the urgent need to protect public health.

Yet, in India, the government response to Covid has almost entirely been by executive decree, with
little legislative sanction and judicial oversight. Though it has had a disproportionate impact on
the lower strata of the society, there has been little calls for checks, with the general view being
that in light of the crisis, a ‘state of exception’ exists. As the crisis progresses, more and more
sweeping measures are being implemented.

1.1) Research Methodology

This project work is a doctrinal research work. This is descriptive-cum-analytical in approach. It

is largely based on secondary & electronic sources of data. Books & other references as guided by
faculty of Administrative Law are primarily helpful for the completion of this project.

1.2) Research Questions

➢ What do we mean by delegation?

➢ What kind of supervision can the Judiciary undertake?

➢ Is delegated legislation is the good way to deal with it COVID-19?

1.3) Objectives
The present study is a modest attempt in this direction with the following objectives:

➢ To look into the Definition and meaning of Delegated Legislation.

➢ To assess the history of delegated legislation in India.

➢ To study the types of delegated legislation.

➢ To analyze the control mechanisms for delegated legislation in India.

➢ To analyze the criticisms faced by the concept of delegated legislation in India.

➢ to highlight the importance of delegated legislation in the light of COVID-19 and where
delegated legislation is linked with COVID-19.

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Administrative Legislation: Its Merits and Demerits

1.4) Hypotheses
➢ My first hypothesis is though delegated legislation helps in lessening the burden of the
parliament, at times it functions in such manner that may lead to injustice and arbitrariness.

➢ My second hypothesis is the government response to Covid has almost entirely been by
executive decree, with little legislative sanction and judicial oversight.

1.5) Sources of Data

The researcher has utilized the primary and secondary sources of information in the project. The
primary sources include judicial enactments, international enactments etc. The secondary sources
books, web journals, magazines, articles and blogs.

1.6) Limitation
There was limited access to data. The time available to study research problem and to measure
change over time is constrained by the deadline of the assignment.

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Administrative Legislation: Its Merits and Demerits

2) FORMS OF ADMINISTRATIVE LEGISLATION

There are various forms of administrative legislation. The reason for this is that there is no uniform
pattern of delegation in the delegating legislations. Although there are various forms of delegation,
the parameter for determining the question of validity is the same, that is, the legislature must lay
down the policy of the Act. It is therefore that the doctrine of excessive delegation has been
invoked in a large number of cases to determine the validity of provisions delegating legislative
power. Some of these cases are discussed here to illustrate the working of the principle. The cases
have been classified from the point of view of the nature of the power conferred under following
broad categories:

(a) Amplification of policy.

(b) Modification.

(c) Removal of difficulties.

(d) Inclusion and Exclusion.

(e) Taxation.

➢ Amplification of policy

A good example of amplification of policy is Section 3 of the Essential Supplies (Temporary

Powers) Act, 1946. Section 3 of the Act reads as follows:

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 the equitable distribution and
availability at fair prices, may by notified order provide for regulating or prohibiting the
production, supply and distribution thereof and trade and commerce therein.

The validity of Section 3 was challenged on the ground of excessive delegation. Under this
provision the executive was authorized to promulgate delegated legislation not only to fill in details
in the statute but even to decide question of policy. However, in Hari Shanker Bagla v.State of
Madhya Pradesh12, the Supreme Court upheld the delegation on the ground that the legislature has

12
Hari Shanker Bagla v.State of Madhya Pradesh AIR 1954 SC 465

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laid down the essential principles or policy of the law, namely, -”maintenance or increase of supply
of essential commodities and securing equitable distribution and availability at fair prices.”
Delivering the judgment, Mahajan, C.J., observed:

“The preamble and the body of sections sufficiently formulate the legislative policy and the ambit
and the character of the Act is such that the details of that policy can only be worked out by
delegating them to a certain authority within the framework of that policy.”13

➢ Modification

Power of modification has also been given to administrative authorities in cases which may be
characterized as “legislation by reference”.14 This is a device by which the power to modify is
delegated to make the adopted statute fit into the adoptive statute. For example, section 21 of
Excess Profits Act, 1940 provides that the provisions of the section of Income Tax Act, 1922
mentioned therein shall apply with such modifications as may be made by rules.

➢ Removal of difficulties- (Henry VIII clause)

Sometimes, power is conferred on the government to modify the existing statute for the purpose
of removing difficulties so that it may be brought into full operation. When the legislature passes
an Act, it cannot foresee all the difficulties which may arise in implementing it. Legislature,
therefore, introduces in the statute a “removal of difficulty” clause envisaging that government
may remove any difficulty that may arise in putting the law into operation.

Generally, two types of “removal of difficulties” clauses are found in the Indian statutes. One, a
narrow one which empowers the executive to exercise the power to remove difficulties consistent
with the provisions of the enabling Act. In such a case, the Government cannot change any
provisions of the statute itself; e.g., Section 128 of the States Re-organization Act, 1956 lays down
as under:

13
Ibid
14
Allen, Law In. the making p. 51 (7th Ed.); Law and Orders, p. 172 (3rd Ed.)

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Administrative Legislation: Its Merits and Demerits

If any difficulty arises in giving effect to the provisions of this Act, the President may by order do
anything not inconsistent with such provisions which appear to him to be necessary or expedient
for the purpose of removing difficulty.

If the statute provides so, it is not objectionable. According to Committee on Minister's Powers15
the sole purpose of Parliament in enacting such a provision is “to enable minor adjustments of its
own handiworks to be made for the purpose of fitting its principles into the fabric of existing
legislation, general or local” Sir Cecil Carr's16 view is that the device is draftsman's insurance
policy in case he has overlooked something. In exercise of such powers the government cannot
modify the Parent Act nor can make any modification which is not consistent with the Parent Act.17

➢ Inclusion and Exclusion:

As a matter of common practice, legislature passes law to confer power on the government to
bring individuals, bodies or commodities within, or to exempt them from, the purview of a statute.
In this way, the range of operation of a statute can be expanded or reduced through the device of
delegated legislation.

➢ Taxation

Taxing power is an inherent power of any State. In a democratic system, taxation is exclusively
the function of legislature. The fundamental canon of democracy is “no taxation without
representation.” Taxation is, therefore, a strong weapon in the hand of legislatures to control the
executive. However, delegation has permeated even the tax area. When legislature passes the
statute to levy a tax, it leaves some elements of taxing power to the executive. The doctrine of
excessive delegation is applied by the Court to determine the validity of the delegation of taxing
power. The permissible limits of a valid delegation of taxing power can be comprehended by
analysing the individual cases decided by the Supreme Court.

15
The Committee on Minister's Powers Report, 1932 p. 36.
16
Concerning English Administrative Law. 1941 p. 44.
17
Jalan Trafiing Co. v. Mill MazcJoor Sabhll. AIR 1967 SC 691; Sinai v. Union of India. AIR 1975 SC 797

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Administrative Legislation: Its Merits and Demerits

Power may be delegated to government to exempt an item from the purview of tax. In Orient
Weaving Mills v. Union of India18 , a provision authorizing the Central Government to exempt any
excisable goods from duty was held valid against the plea of excessive delegation.

18
Orient Weaving Mills v. Union of India AIR 1963 SC 89

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Administrative Legislation: Its Merits and Demerits

3) CONTROL MECHANISM OF ADMINISTRATIVE LEGISLATION IN INDIA

➢ Parliamentary Control19

Every delegate is subject to the authority and control of the principal and the exercise of delegated
power can always be directed, corrected or cancelled by the principal. Hence parliament control
over delegated legislation should be living continuity as a constitutional necessity. The fact is that
due to the broad delegation of legislative powers and the generalized standard control also being
broad, the judicial control has shrunk, raising the desirability and the necessity of parliamentary
control.

In India the parliamentary control of delegated legislation is implicit as a normal constitutional

function because the executive is responsible to the parliament.

Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power
is not usurped nor transgressed under the guise of what is called subordinate legislation. It can
control the following:

1. Normal Delegation: - a) Positive: - where the limits of delegation are clearly defined in the
enabling Act b) Negative: - does not include power to do certain thing (these not allowed)

2. Exceptional Delegation: - a) Power to legislate on matters of principle (policy) b) Power is

amend Act of parliament (In re Delhi laws Acts) 20

W.B. State Electricity Board v. Desh Bandhu Gosh21 it was held that Regulation 34 of the West
Bengal State Electricity Regulation which had authorized the Board to terminate the Service of
any permanent employer on three months notice or pay in lieu there of. This hire & fire rules of
regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport Corporation
Limited v. Brojo Nath Ganguly22wherein rule 9 of the service rules of the CIWTC conferred power
to terminate on similar lines as in the case of Desh Bandhu Ghosh the court went on to say that no

19
www.legalservicesindia.com/article Doctrine Of Permissible Limits under Delegated Legislation.under the Indian
Constitution: of India.
20
Delhi laws Acts AIR 1951 SC 332
21
W.B. State Electricity Board v. Desh Bandhu Gosh (1958) 3 SCC 116.
22
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly AIR1986SC1571.

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Administrative Legislation: Its Merits and Demerits

description of Rule 9(i) can be given than to call it “the Henry VIII clause”. It confers absolute and
arbitrary power upon the Corporation and therefore invalid.

➢ Procedural Control

Parliamentary control over administrative rule is admittedly weak because the legislators are
sometimes innocent of legal skills. A constant search therefore is on for an alternative mechanism
which besides providing an effective vigil over administrative rule making can guarantee effective
people participation for netter social communication, acceptance and effectively of the rules.

Procedural control mechanism has the potential to meet the above noted requirements for allowing
specific audit of rules by those for whose consumption they are made.

Procedural control mechanism operates in three components:

1. Drafting

2. Antenatal publicity

3. Consultation

4. Postnatal publicity

➢ Judicial Control

Judicial Control over Delegated Legislation Judicial control over delegated legislature is exercised
at the following two levels: - 1. Delegation may be challenged as unconstitutional; or 2. That the
Statutory power has been improperly exercised. The delegation can be challenged in the courts of
law as being unconstitutional, excessive or arbitrary. The scope of permissible delegation is fairly
wide. Within the wide limits, delegation is sustained it does not otherwise; infringe the provisions
of the Constitution. The limitations imposed by the application of the rule of ultra vires are quite
clear. If the Act of the Legislature under which power is delegated, is ultra vires, the power of the
legislature in the delegation can never be good. No delegated legislation can be inconsistent with
the provisions of the Fundamental Rights. If the Act violates any Fundamental Rights the rules,
regulations and bye-laws framed there under cannot be better. Where the Act is good, still the rules
and regulations may contravene any Fundamental Right and have to be struck down. Besides the
constitutional attack, the delegated legislation may also be challenged as being ultra vires the

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powers of the administrative body framing the rules and regulations. The validity of the rules may
be assailed as the stage in two ways:— (i) That they run counter to the provisions of the Act; and
(ii) That they have been made in excess of the authority delegated by the Legislature.

Illustrative cases: Kruse. v. Johnon23- It was laid down that a bye-law would be unreasonable if
it is found to be (i) partial or unequal i.e. its operation as between different classes; (ii) manifestly
unjust: (iii) disclosing bad faith; and (iv) involving such oppressive or gratuitous interference with
the right of the people that it could find no justification in the minds of reasonable men.

Chadran v. R.24: A rule or bye-law must be within the power entrusted to the legislature. For
example an Act of the U.P. State was devised to control the transport of goods and passengers by
ferries and authorised the Commissioner to make rules for the safety of the passengers and
property. But actually, the Commissioner forbade the establishment of private ferries within a
distance of two miles from another ferry. That rule was struck down.

23
Kruse. v. Johnon [1898] 2 QB 91.
24
Chadran v. R (1952) Alld. 793.

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4) CONSTITUTIONALITY OF ADMINISTRATIVE LEGISLATION

In India, Legislatures, consistent with their sovereign character, have been held to possess wide
powers of delegation. This power is, however, subject to limitations. The Legislature cannot
delegate essential legislative functions, which consist in the determination or choosing of the
legislative policy and of formally enacting that policy into a binding rule of conduct. The
Legislature cannot delegate ‘unanalyzed and uncontrolled power’. The delegation is valid only
when the legislative policy and guidelines to implement it are adequately laid down and the
delegate only is empowered to carry out the policy within the guidelines laid down by the
Legislature.

The question, whether any particular legislation suffers from excessive delegation, has to be
decided having regard to the subject matter, the scheme, the provisions of the statute including its
preamble, and the facts and circumstances in the background of which the statute is enacted.

In Pandit Banarasi Das Bhanot v State of Madhya Pradesh25 it was held that the power to tax is a
well-recognized legislative power, ample latitude has been allowed to the Legislature to leave to a
delegate the power to work out details of a tax policy. In upholding a power delegated to the State
Government for amending the Schedule relating to exemptions in a Sales Tax legislation, Justice
Venkatarama Aiyer observed that it is not unconstitutional for the Legislature to have it to the
executive to determine details relating to the working of taxation laws, such as the selection of
persons on whom the tax is to be paid, the rates at which it is to be charged in respect of different
classes of goods and the like.

In Harishankar Bagla v State of MP26 the Supreme Court held that while sustaining the legality of
section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which gave wide powers to the
Central Government to make orders for regulating or prohibiting the production, supply and
distribution of essential commodities, was satisfied that it had laid a clear principle and offered
sufficient guidance. It was held that the power conferred by the section therein is to be exercised
for maintaining or increasing supplies of any essential commodity, or for, securing their equitable
distribution and availability of fair prices.

25
Pandit Banarasi Das Bhanot v State of Madhya Pradesh 1958 AIR 909, 1959 SCR 427
26
Harishankar Bagla v State of MP 1954 AIR 465, 1955 SCR 313

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The Constitution Bench of Supreme Court in Kishan Prakash Sharma v Union of India27 the
Supreme Court laid down the test of constitutional limit of delegated legislation. The Supreme
Court in this case held that the Legislature must set the limits of the power delegated by declaring
the policy of the law and by laying down standards for guidance of those on whom the power to
execute the law is conferred. Thus, the delegation is valid only when the legislative policy and the
guidelines to implement it are adequately laid down and the delegate is only empowered to carry
out the policy within the guidelines laid down by the Legislature. The Legislature may, after laying
down the Legislative policy, confer discretion on an administrative agency to work out the details
within the frame work of the policy. When the Constitution entrusts the duty of lawmaking to
Parliament and Legislatures of the States, it impliedly prohibits them to throw away that
responsibility on the shoulders of some other authority. An area of compromise is that Parliament
cannot work in detail the various requirements of giving effect to the enactment and, therefore,
that area will be left to be filled by the delegate.

The Supreme Court in State of Rajasthan v Basant Nahata28 held that the necessity of the
Legislature’s delegating its power in favor of the executive is a part of legislative function. It is a
constituent element of the Legislative power as a whole under article 245 of the Constitution. Such
delegation of power, however, cannot be wide, unanalyzed or unguided. The Legislature, while
delegating such power is required to lay down the criteria or standard so as to enable the delegatee
to act within the framework of the statute. The principle on which the power of the Legislature is
to be exercised is required to be disclosed. It is also trite that essential legislative functions cannot
be delegated. The procedural powers are, therefore, normally left to be exercised by the executive
by reason of a delegated legislation.

There cannot be any doubt whatsoever that the court shall not invalidate a legislation on the ground
of delegation of essential legislative function or on the ground of conferring unguided,
uncontrolled and vague powers upon the delegate without taking into the preamble of the Act as
also other provisions of the statute in the event they provide good means of finding out the meaning
of the offending statute.

27
Kishan Prakash Sharma v Union of India (2001) 5 SCC 212 : AIR 2001 SC 1493
28
(State of Rajasthan v Basant Nahata 2005) 12 SCC 77: AIR 2005 SC 3401

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The Supreme Court in Delhi Race Club Limited V. Union of India29 held that there two broad
principles in delegation of legislative functions:

➢ that delegation of non essential legislative function of fixation of rate of imposts is a

necessity to meet the multifarious demands of a welfare State but while delegating such a
function laying down of a clear legislative policy is pre requisite; and
➢ while delegating the power of fixation of rate of tax, there must be in existence, inter alia,
some guidance, control, safeguards and checks of the Act concerned.

It is manifest that the question of application of the second principle will not arise unless the impost
is a tax. Therefore, as long as the legislative policy is defined in clear terms, which provides
guidance to the delegate, such delegation of a non-essential function is permissible.

In Holystar Natural Resources (P) Limited V. Union of India30 it was contended that Section
2(1)(o) of SARFAESI Act was violative of Article 19(1)(g) of the Constitution of India as it gave
uncontrolled discretion and arbitrary power in the hands of financial institutions/RBI to declare
any entity as an NPA. Under the SARFAESI Act, the borrower had a very limited to right to
question the proceedings and the consequences provided in the Act were drastic. Consequently,
by empowering the banks/financial institutions/RBI to determine what NPA is, there had been a
disastrous effect on business, profession and trade of the borrowers. The court analyzed the
provisions of Section 2(1)(o) of the Act which defines NPA as an asset or accountable receivable
of a borrower, which has been classified by banks or financial institutions in terms or RBI
guidelines as substandard, doubtful and loss asset. Clause 4.1 of RBI guidelines classifies NPA
into the above three categories. Once the account finds place in any of these categories, it becomes
an NPA with respect to clause 2.1 RBI guidelines. The classification is done taking into account
the degree of well-defined credit weakness and extent of dependence on collateral securities for
realization of dues. The Legislature has left it to RBI to identify, define and classify different assets
in accordance with the current international best practices as well as the changing economic
scenario of the country. The Court is of the opinion that the Legislature has defined NPA and the
RBI issued guidelines to improve quality of assets of the bank and to recover public money

29
Delhi Race Club Limited V. Union of India (2012) 8 SCC 680
30
Holystar Natural Resources (P) Limited V. Union of India 2014 (1) TMI 1639

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Administrative Legislation: Its Merits and Demerits

speedily. There is no excessive delegation or scope for the banks to act upon basing on their whims
and fancies, but they are governed by the guidelines issued by the RBI which is empowered to
issue such guidelines under Section 21 of Banking Regulation Act, 1949.

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5) CURRENT MONITORING OF ADMINISTRATIVE LEGISLATION

Delegated legislation deserves discussion because it is the chief mechanism by which executive
power is exercised. McCubbins, Noll and Weingast point out the problem elected representatives
face in ensuring that bureaucrats comply with their policy preferences.31 Parliamentarians
generally lack the enabling framework to monitor bureaucratic performance. Effective monitoring
of regulations framed by bureaucrats is thus an essential part of an effective oversight framework.

Parent statutes in India circumscribe powers that have been delegated to the executive.32 They also
state the manner in which Parliament will exercise a check on the rule-framing power of the
government.33 Parliamentarians may agree to modify the rule by voting on it before the end of the
next session (that is the session after the one in which the thirty days expire). This has rarely, if
ever happened. However, both Houses have a Committee on Subordinate Legislation that
examines regulations tabled in Parliament.

Data collated earlier indicates that the number of regulations “examined by the Lok Sabha
Committee from February 2016 to December 2018 is around three percent of the total number of
subordinate legislations laid before the Lok Sabha in the same period”.34 The government often
agrees to modify the regulations after meeting with the Committees. For the 14th Lok Sabha, the
government accepted 83% of the recommendations made by the Lok Sabha committee. However,
there is also a huge time lag between the initial report of the Committees and the response of the
government. As a result, by the time the Action Taken Report is published an average time of six
years has passed from the promulgation of the rule.35 Sadly, the Committee on Subordinate

31
Mathew D McCubbins, Roger G Noll & Barry R Weingast, Administrative Procedures as Instruments of Political
Control, 247, 3 Journal of Law Economics and Organization 243, 243, (1987) (They state that politicians delegate
policymaking authority to bureaucrats as a matter of course. The problem is that politicians often lack the resources
to monitor the performance of bureaucrats in compliance with their own policy goals. They argue that resultantly
bureaucrats depart from the policy choices in the absence of effective oversight. This is because of “personal
preferences, derived from some combination of private political values, personal career objectives, and, all else equal,
an aversion to effort, especially effort that does not serve personal interests”).
32
Bills are also required to contain a Memorandum on delegated legislation explaining the clauses delegating rule-
making powers, and certifying that such delegation is of a normal character.
33
For example, see Civil Liability for Nuclear Damage Act, §§ 48(2) and 48(3). § 48(3) is illustrative of a standard
clause present in most laws, stating that any rules under a statute shall be laid before the Parliament for a total period
of thirty days of sittings of the Parliament
34
Anirudh Burman, Subordinate Legislation in Parliament, PRS Legislative Research (February 25,2018)
(unpublished)
35
Id.

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Administrative Legislation: Its Merits and Demerits

Legislation of the Lok Sabha was itself forced to recently observe that: “One disquieting feature
observed by the Committee in regard to the issue of statutory orders by the Government was the
enormous delay in laying them on the table of the House thereby depriving the House of timely
scrutiny of such Rules. (emphasis added)”.36

This lack of effective monitoring is of critical importance especially because over time bureaucrats
tend to gain greater experience over their domain.37The information asymmetry between the
executive and the legislature only gets exacerbated over time.

36
Committee on Subordinate Legislation, Fifteenth Lok Sabha, Non Implementation of OftRepeated
Recommendations of Committee on Subordinate Legislation, Lok Sabha by Various Ministries, Twenty-First Report
, 2011, available at http://www.prsindia.org/administrator/ (Last visited on March 28, 2021 at 8 :10pm)
uploads/media/Subordinate%20Legislation/Report%20on%20Subordinate%20Legislation. pdf (Last visited on
March 28, 2021 at 8 :50pm)
37
See McCubbins et al, supra note 17.

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Administrative Legislation: Its Merits and Demerits

6) MERITS OF ADMINISTRATIVE LEGISLATION

➢ One of the advantages of delegated legislation is it permits the Government to amend a law
without having to wait for a new Act to be passed by the parliament. Further, it is to be
noted that delegated legislation can be used only to make technical changes to the law, such
as altering sanctions under a given statute. Any essential legal function cannot be carried
out through delegated legislation. Nor a delegated body can lay down a legislative policy.
For example, a Local Authority have power given to them under certain statutes to allow
them to make delegated legislation and to make law which suits their area. Delegated
legislation provides a very important role in the making of law as there is more delegated
legislation enacted each year than there are Acts of Parliament. In addition, delegated
legislation has the same legal standing as the Act of Parliament from which it was created.
➢ Another important reason why delegated legislation is important is 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.
➢ It is to be noted that it is humanly impossible for the parliament to look upon all the matters.
As there would be some tasks which will require some specific kind of expertise. So, in
such situation delegated legislation would be very beneficial. 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 is in a better position to decide what is best for their locality and can make a law
to suit their local needs.
➢ Fourthly, 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.
➢ Also delegated legislation is more flexible in nature in comparison to the legislative body
I.E parliament. Delegated Legislation can be used to battle a situation that Parliament had
not anticipated at the time it enacted the piece of legislation, which makes it very useful to

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Administrative Legislation: Its Merits and Demerits

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.38
➢ Another strong merits delegated legislation has is Experiment: The practice of delegated
legislation enables the Executive to experiment. For example, in traffic matters of the road
an experiment method can be conducted and in the wake of its application necessary
changes can be made in the provisions. 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.
➢ A portion of law-making power of the legislative is conferred or bestowed upon a
subordinate authority. Rules & regulations which are to be framed by the latter constitutes
an integral portion of the statute itself.

38
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur

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Administrative Legislation: Its Merits and Demerits

7) DEMERITS OF ADMINISTRATIVE LEGISLATION

Delegated legislation is not without its criticisms. Firstly, it has been suggested that by having
delegated legislation to make and/or amend laws etc it lacks democracy as too much delegated
legislation is made by unelected people. Secondly, delegated legislation is subject to less
Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over
delegated legislation and this can lead to inconsistencies in laws. In addition, delegated legislation
therefore has the potential to be used in ways which Parliament had not anticipated when it
conferred the power through the Act of Parliament. One further demerits of delegated legislation
is the lack of publicity surrounding it. When law is made by statutory instrument the public are not
normally notified of it whereas with Acts of Parliament, on the other hand, they are widely
publicized. One reason for the lack of publicity surrounding delegated legislation is because of the
volume of delegated legislation made and this results in the public not being informed of the
changes to law. There has also been concern expressed that too much law is made through
delegated legislation.

➢ Many a times what happens that the legislature passes only the skeleton laws and general
policies, leaving the rest upon the executive body. So, there is a bifurcation of wide
discretion and power to the executive body which might be misused to trump upon the life
and liberty of people.
➢ It lacks democracy as too much delegated legislation is made by unelected people.
➢ Even though judicial control could be exercised to check the legality of delegated
legislation, it becomes very technical and complex when it is to be applied in reality.
➢ There is no central system available to look into inconsistencies in delegated legislations
and suggest remedies accordingly.
➢ Delegated legislation is the lack of publicity surrounding it. When law is made by statutory
instrument the public are not normally notified of it whereas with Acts of Parliament, on
the other hand, they are widely publicized. One reason for the lack of publicity surrounding
delegated legislation is because of the volume of delegated legislation made and this result
in the public not being informed of the changes to law. There has also been concern
expressed that too much law is made through delegated legislation.

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Administrative Legislation: Its Merits and Demerits

➢ Though Subordinate Legislation is now universally accepted as ‘inevitable and

indispensable’, it is generally agreed that the tendency to delegate to the Executive the
legislative powers is dangerous. Political scientists and others interested in the subject have
felt that the concerned departments or the authorities to whom the ancillary legislative
powers have been delegated, regulate matters of substantive nature which may closely
affect the rights and interests of the citizens. In certain circumstances, people may be denied
liberties by the administrators who are armed with legislative powers.
➢ Another risk inherent in the system of subordinate legislation is that officials in their zeal
to achieve a particular objective may impose an undesirable burden on citizens by requiring
them to comply with various conditions and formalities which might be restrictive of
individual rights and freedom. Such tendencies strengthen the bureaucracy and result in
undesirable complexities and difficulties. Two pertinent questions, therefore, crop up.
First, how much power should be delegated by the Legislature to the subordinate
authorities? And second, what restraints or safeguards should be imposed upon the
authorities exercising delegated legislative powers? Today, the problem is not about the
desirability or otherwise of delegated legislation but it is with regard to the control and
safeguards which can be introduced to ensure effective parliamentary control over
subordinate legislation so that the powers conferred are not abused or misapplied.39
➢ Thus, summing up, even though delegated legislation helps in lessening the burden of the
parliament, at times it functions in such manner that may lead to injustice and arbitrariness.
Also, there is no hiding to the fact that whenever any subordinate legislation is scrutinized,
a lot of complexities arises thereby making the process inefficacious. Delegation helps in
ensuring better administration. Justice P B Mukherjee has stated “Delegated legislation is
an expression which covers a multitude of confusion. It is an excuse for the legislators, a
shield for the administrators and a provocation to the constitutional jurists. It is praised as
a necessity and felt as inevitable in our world where social economic technological
psychological and administrative speed outstrips the spacious and placid traditional
legislative ideals and processes. It is criticized as an abdication of power by legislators and

39
http://164.100.47.194/loksabha/writereaddata/Abstract/subordinate_legislation.pdf (Last visited on March 28, 2021
at 9:50pm)

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Administrative Legislation: Its Merits and Demerits

an escape from the duty imposed on them by voters of democracy” . But if the same is not
handled properly, will lead to undesired results. As it could be seen in many cases that the
legislative body only make the skeleton laws and the other important things are delegated
to a executive body which may make the process arbitrary. As by doing this it would allow
the delegated body to enjoy wide powers and discretions. Such bifurcation of powers is
highly problematic. If we really want to make the practice of delegated legislation a living
continuity, it is imperative for us to make a separate central system which would directly
look after the affairs of delegated legislation. To come up with a uniform guideline which
would govern the working of the delegated body.

7.1) Excessive delegation as ‘Abdication’

Abdication means abandonment of sovereignty. When the legislature does not legislate and
entrusts that primary function to the executive or to an outside agency, there is abdication of
legislative power. Abdication may be partial or total. The power to delegate is subject to the
qualification that the legislature does not abdicate or efface itself by setting up a parallel
legislature.40

But the delegation of legislative power need not necessarily amount to abdiction or complete
effacement. What constitutes abdication and what class of cases are covered by that expression is
always a question of fact and it cannot be defined nor a rule of universal application can be laid
down.41

The legislature cannot part with its essential legislative function which consists in declaring its
policy and making it a binding rule of conduct. A surrender of this essential function would amount
to abdication of legislative powers in the eyes of law. The Court can interfere if no policy is
discernible at all or the delegation is of such an indefinite character as to amount to abdication.42

40
Gwalior rayon Silk Mfg. Co. v. Asst. Commissioner, (1974) 4 SCC 98, Mahe Breach Trading Co. v. Union Territiory
of Pondicherry, (1996) 3 SCC 741.
41
Ibid.
42
In re Delhi Laws Act, AIR 1951 SC 332., Devi das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895.

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Administrative Legislation: Its Merits and Demerits

7.2) Excessive Delegation and Constitutional objections

Delegation of power to the executive is of two kinds i.e. Legislative and Executive. The grant of
legislative power is challenged on the ground that of excessive delegation whereas the grant of
executive power may be challenged on the ground of its alleged violation of the right to equality
guaranteed by Art. 14 or violation of any rights guaranteed under Art.19.The delegation of power
is upheld once it is accordance to the policy and standards laid down by the Courts.43

Excessive delegation of legislative power can be assailed under Article 14 of the Constitution as
being capable of being used in a discriminatory manner. When the High Court Judges (Conditions
of Service) Act 1954 as amended in 1986 and 1988, which provided for revised pensions for
judges, left the discretion to fix the dates on which such amendments were to come in force to the
state governments, it was held that conferment of such power could act discriminatorily because
every state government might fix a different date for that purpose thus making revised pensions
applicable to the judges on different dates depending upon the state in which the High Court was
located.44

The Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions
(Regulation) Act 1966, both on ground of excessive delegation as well as violation of the Art. 14
of the Constitution as it did not contain adequate guidelines to the executive for the exercise of the
delegated legislative power.45

43
Sathe, S.P., “Administrative Law”, 7th Edition, Lexis Nexis Butterworths. P . 54.
44
M.L.Jain v. India AIR 1989 SC 669.
45
A.N. Parasuraman v. Tamil Nadu (1989) 4 SCC 683.

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Administrative Legislation: Its Merits and Demerits

8) IMPACT OF COVID- 19 ON ADMINSTRATIVE LEGISLATION

COVID-19 pandemic has caused global health crisis of our time and the greatest challenge we
have faced globally since World War II. Since its emergence in China in December 2019 last
year, the virus has spread to almost every continent.46
India being a country that is well known for its rich historic culture and traditional values catered
a major chunk of the population of our country through tourism, are left unemployed. People all
over the globe are either unemployed or have been majorly affected due to the sudden outbreak
of the pandemic.
The pandemic really has put forward a great challenge in front of the government that none of us
had ever expected of. As the virus had been newly discovered, it has no cure or vaccine ready
yet. The Indian government had to react quickly as India being a densely populated country
would cause this virus to spread like a wildfire.47
As mentioned earlier, this does not have any cure or vaccine as of now and is a newly discovered
virus, the Indian law was compelled to delegate powers in the hands of experts due to a few
reasons as listed below:

➢ Emergency Situation:
Quick action was needed as this virus has now caused a global pandemic which was the
major concern for every authority around the globe when the virus was first reported.
➢ Pressure on Parliamentary time:
This virus has now affected every country and only a few have been able to handle the
situation very well. To tackle such situations, there was not enough time for the government
to think upon and act accordingly. The decisions were taken in a haste in order to contain
and avoid the spread of the virus.
➢ Lack of expertise:

46
https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (Last visited on 2nd March 2021 at 5:30pm)
47
https://adminlawblog.org/2020/05/05/devansh-kaushik-the-indian-administrative-response-to-covid-19/(Last
visited on March 3, 2021 at 8 :50pm)

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It cannot be expected by the Parliament's members to tackle such situations as these

situations are very critical in nature so the people who are expert in handling these
situations should probably look after it. Therefore, experts should be hired.48

Coming to the conclusion, the situation of COVID-19 is an emergency situation which no one was
prepared for and India had no laws made for a such a condition so it was required to take quick
decisions for which delegated legislation is the best way to deal with it.
Mainly two laws, i.e., Disaster Management Act, 2005 and Epidemic Diseases Act, 1897, were
followed by the government to handle the spread of corona virus in India.

8.1) Disaster Management Act, 2005 (DMA)49

The main motive behind the formation of the Disaster Management Act was to deal with
disasters at both the levels of government, i.e. Central and State.
Under Section 6(2)(a) of the Act50, the national authority has the power to lay down or make
policies on disaster management and exercising this power the Central and the State government
took measures in order to ensure social distancing so as to prevent the spread of COVID-19.
Section 10(2)(l) of the Act51 empowers the Central government to “lay down guidelines for, or
give directions to, the concerned Ministries or Departments of the Government of India, the State
Governments and the State Authorities regarding measures to be taken by them in response to
any threatening disaster situation or disaster.” Referring to this, the lockdown was initiated for
the time period of 21 days first and was then so on planned and carried out.
The Union Home Secretary also delegated power to the Union Health Secretary so as to have a
better look and be ready to deal with the pandemic, COVID-19.
Therefore, this law has helped the administrative authorities a lot to take decisions regarding
COVID-19.

8.2) Epidemic Diseases Act, 189752

48
http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-
Control.html (Last visited on March29, 2021 at 9 :30pm)
49
Disaster Management Act, 2005
50
Section 6(2)(a) Disaster Management Act, 2005
51
Section 10(2)(l) Disaster Management Act, 2005
52
Section 2A Epidemic Diseases Act, 1897

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Due to the absence of any recent legislation, India had to refer to this British colonial era legislation
which is 123 years old, i.e., the Epidemic Diseases Act to take into control the outbreak. This Act,
although too small, is more oriented towards the current crisis of COVID-19. This law empowers
the State to conduct search operations and also to punish the people who are violating the
provisions of the law.

This Act contains only four sections.

Section 153 states about the title and to what extent this act could be applied to.
Under Section 2A of the Act54, the Central government is empowered to inspect ships and
vessels leaving or arriving in the territories of India and also empowers the government to detain
such vessels if required. The travel ban exercised by the government belongs to this section.
Whenever any state government is satisfied that any part of his territory is going to get attacked
by any dangerous disease, then he many do any such thing as prescribed in this law to control the
outbreak of the disease.
Referring to this section, many states, like Delhi, Odisha, Maharashtra, Karnataka have made
their own rules and regulations for coping up with quarantine measures.
Section 355 provides with the penalties for disobeying the regulations made by the government
under section 2 and 2A. The punishment for such disobedience shall be the same as Section 188
of Indian Penal Code (IPC)56, that is, a sentence of simple imprisonment for one month, a fine, or
both.
Section 457 protects the government and its employees and officers from any prosecution, civil or
criminal, for doing anything in good faith.
When this act was enacted at that time United Nations and World Health Organization did not
have any sort of existence. Therefore, this Act lags behind in implementing the guidelines issued
by these organizations time and again.
Both the Diseases Management Act and Epidemic Diseases Act delegates substantial
discretionary power to the government.

53
Section 1Epidemic Diseases Act, 1897
54
Epidemic Diseases Act, 1897
55
Section 3Epidemic Diseases Act, 1897
56
Section 188 of Indian Penal Code,1860
57
Section 4 Epidemic Diseases Act, 1897

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Testing the Administrative Response

Three types of control can mainly be exercised on delegated legislation, i.e., judicial review,
legislative oversight, and in-built procedural controls but as per the current situation which is
going on in India all of them are restricted.
Courts are functioning with a limited and restricted number of people and are only hearing
matters that are urgent in nature.

In the case Sukhdev Singh v Bhagat Ram,58 the Supreme Court empathized the importance of
delegated legislation in the Constitution of India. The Court held that delegated legislation is
only an effective remedy during emergencies situation and it can only be applied in those
situations where a quick action is needed and expected from the Government side. Only on those
emergency situations delegated legislation comes into the picture because a second delay in the
decision making can cost a huge loss to the Country.

Parliament has been broken off without assigning a day for a further meeting or hearing in mid-
session and neither the Lok Sabha nor Rajya Sabha or its committees can be back together to
exercise oversight. The questionable laws are also not designed to deal with the scale of the
present crisis and lack procedural controls.

The higher judiciary is slowly transitioning towards filing of cases digitally and virtual hearings,
therefore, it becomes its right to throw a light and draw upon the various administrative doctrines
from the past in order to keep or maintain a balance between civil liberties and public welfare.

The doctrine of proportionality still remains applicable. The Doctrine of Proportionality is used
when any action taken by an administrative body is such that no reasonable authority would have
taken such measures to fulfil the objective or the punishment is so disproportionate that it shocks
the conscience of the court, in these kinds of cases, the court is empowered to review the
quantum of punishment by itself or remit it to tribunals for reconsideration.

58
Sukhdev Singh v Bhagat Ram 1975 AIR SC 1331

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Different actions or measures taken by the government can be challenged on these grounds.
These limitations on executive action can be traced to fundamental rights under article 14 ,19 and
21, as affirmed by various judicial precedents. The writ jurisdiction of the High Courts and
Supreme Court is thus attracted.

The National Lockdown

The national lockdown imposes restriction on conducting huge gatherings and movement, having
the motive behind it to exercise social distancing. Scientific evidences have said that such a
measure, if taken, would lower the number of cases as it has been growing rapidly. Keeping an
eye on all the necessities and requirements of the public, a curfew or total ban or prohibition on
individual movement has not been yet imposed as per the imposed guidelines.
However, implementation on the ground level has tended to be unsatisfactory with police
enforcing a de-facto curfew by indiscriminately attacking violators, including those with
considerable reasons for stepping out.

Compulsory Quarantine

As per the provision of Epidemic Diseases Act, detention of people who are suspected of being
infected does have a degree of legislative backing. Authorities have largely also adhered to
boundaries of proportionality, imposing home quarantines on low-risk patients and limiting
quarantine to the incubation period of the virus.
Local administrations in some parts of the country are trying to follow suit. This affects the right
to privacy of the affected individuals. It renders them vulnerable to public stigma, discrimination
and even compromises their safety.

8.3) Enforcement of Section 14459

The executive rule-making at the local level has been made by magistrates and commissioners
acting under the powers conferred on them under S.144 of CrPC. It empowers them to issue
orders within their jurisdictions to “direct any person to abstain from a certain act or to take
certain order with respect to certain property in his possession” where there is an anticipated risk

59
Section 144 in The Code of Criminal Procedure, 1973

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Administrative Legislation: Its Merits and Demerits

to human “life, health, or safety”.

Several problematic orders issued under s.144 can thus be potentially challenged on these
grounds such as arbitrary closure of warehouses, ban on individual movement on public roads as
being disproportionate and arbitrary.

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Administrative Legislation: Its Merits and Demerits

9) CONCLUSION AND RECOMMENDATIONS

Delegated legislation simply means giving power or the authority to the person who holds lower
rank to legislature who has knowledge and awareness regarding the current scenario. It is the
best process for the Parliament to enact a law as it gets a positive result by trusting this method
i.e., delegated legislation where the power of decision making in any emergency situation is
given in hands of the individual who's responsible for it.
So as to save the time of Parliament. And so far, this process has been the best process to enact a
law. And also, this process can recognize and meet the changing needs of the society. There's a
rapid growth and increase of delegated legislation because the process involves various factors
which gives positive result within short period of time.
When law made by the executive is contradicting by the constitution or ultra vires the present act
from which it has got the authority of making law then it could be considered that the law is
invalid and nullified by the court. Judicial Control over delegated legislative works at two levels.
The first one being Challenging the delegation as unconstitutional and the second one being the
improper utilization of judicial power. Delegated Legislation cannot outlive disputing with the
provisions endowing Fundamental Rights. Judicial control is based on the doctrine of ultra vires.
The Constitution of India authorize power to legislature to entrust it's purpose to other
jurisdiction Since India is a welfare state with multiple functions to perform, it is hectic for the
Legislature to handle all of these at the same time on its own. So, the Legislature is further
empowered by the Constitution of India to delegate its purpose to other jurisdictions. In
delegated legislation, the executive has to perform certain legislative purpose. Article 312 of the
Constitution of India puts an emphasis on it.
There are several reasons specified in this research that why delegated legislation is important in
our country as well as in the whole world. And it has also become very important and
unavoidable topic of today's time and it has also become a sensible topic now days. The role of
Delegated legislation in the Government is much required because sometimes there comes a
emergency situation and a single second delay can cause a huge loss to the country.

Entrustment of legislative power without laying down policy is inconsistent with the basic
concept on which our constitutional scheme is founded. Our Constitution-makers have entrusted
the power to legislate to the elected representatives of the people, so that the power is exercised

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Administrative Legislation: Its Merits and Demerits

not only in the name of the people, but by the people. The rule against excessive delegation of
legislative authority is a necessary postulate of the sovereignty of the people. It is not claimed to
be nor intended to be a panacea against the shortcomings of public administration. Governance
of the State in manner determined by the people through their representatives being of the
essence of our form of government, the plea that a substitute scheme for governance through
delegates may be more effective is destructive of our political structure.60

Like that of COVID-19 pandemic which has caused global health crisis of our time and the
greater challenge we have faced globally since World War II. This has given a highlighted
example of having delegated legislation in the Constitution of India.

My first hypothesis was though delegated legislation helps in lessening the burden of the
parliament, at times it functions in such manner that may lead to injustice and
arbitrariness and it is partially proved because Though delegated legislation helps in lessening
the burden of the parliament, at times it functions in such manner that may lead to injustice and
arbitrariness. Also, there is no hiding to the fact that whenever any subordinate legislation is
scrutinized, a lot of complexities arises thereby making the process inefficacious. Delegation
helps in ensuring better administration.

But if the same is not handled properly, will lead to undesired results. As it could be seen in
many cases that the legislative body only make the skeleton laws and the other important things
are delegated to a executive body which may make the process arbitrary. As by doing this it
would allow the delegated body to enjoy wide powers and discretions. Such bifurcation of
powers is highly problematic. If we really want to make the practice of delegated legislation a
living continuity, it is imperative for us to make a separate central system which would directly
look after the affairs of delegated legislation. To come up with a uniform guideline which would
govern the working of the delegated body.

My Second hypothesis was that the government response to Covid has almost entirely been
by executive decree, with little legislative sanction and judicial oversight and it is proved
because the government response to Covid has almost entirely been by executive decree, with

60
Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232

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little legislative sanction and judicial oversight. Though it has had a disproportionate impact on
the lower strata of the society, there has been little calls for checks, with the general view being
that in light of the crisis, a ‘state of exception’ exists. As the crisis progresses, more and more
sweeping measures are being implemented.

Recommendations

➢ If in India the control of Parliament over the delegated legislation has to be made a living
continuity, then it is important that the job of the advisory groups of the Parliament must
be fortified and a different law like the Statutory Instruments Act, accommodating
uniform standards of laying and production, must be passed.
➢ The board of trustees might be enhanced by a specific authority body to make the
watchfulness of assigned enactment progressively successful. Other than the different
measures mentioned above, it should be taken to reinforce the control of Parliament over
designated enactment.
➢ The tenets and standards created by the Legal Executive should be connected by the
necessities of the advanced age.
➢ In spite of the fact that there are no express arrangements in the Constitution of India to
allow the appointment of authoritative power, the legal pattern saw in regard of assigned
enactment is as per the aim of establishing fathers our Constitution whose principal concern
was the flexibility of the Constitution with changing needs of the time.

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Administrative Legislation: Its Merits and Demerits

BIBLIOGRAPHY

Books Referred:
➢ Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa
Nagpur.
➢ I.P.Massey, Administrative Law, (7th ed.2008).
➢ Takwani C.K. (2007) Lectures on Administrative Law. Eastern Book Company, Lucknow.
➢ BASU, D.O., Commentary on the Constitution of India, Vol. II (Calcutta, S.C. Sarkar and
Sons Ltd. 3rd ed., 1956)
➢ Document on Centre-State Relations, Indian Journal of Public Administration, Vol. 23
➢ JAIN, S.N., Judicial Review of Administrative Action: Pros and Cons of the Swaran Singh
Committee Recommendations, 16 Indian Advocate 55 (1976)

Internet /Web Resources Referred:

➢ www.jstor.org
➢ https://indiankanoon.org/
➢ https://www.who.int/
➢ https://www.manupatrafast.com/
➢ www.mondaq.com

Articles Referred
➢ Delegated Legislation – a Mixture of General Principles of Law and an Individual Mind-
Mirko Pečarič
➢ Delegated legislation in India- Diva Rai
➢ Delegated Legislation- Re Delhi Laws Act Case- Aditya Thejus Krishnan
➢ Analysis of The Concept of Delegated Legislation- By Guest Post

Statue/Code/Acts Referred
➢ Disaster Management Act, 2005
➢ Disaster Management Act, 2005
➢ Constitution of India,1950
➢ Indian Penal Code, 1860

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Administrative Legislation: Its Merits and Demerits

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