National Law Institute University

Bhopal

ADMINISTRATIVE LAW I

Ninth Trimester
2011

Topic: Constitutionality of delegated Legislation

Submitted to: Made by:

Prof. Sushma Sharma Katyayini Sharma
Associate Professor 2008BALLB 12
INDEX

S.NO. TOPIC PAGE NO.

1. INTRODUCTION………………………………………...3

2. GROWTH OF THE CONCEPT OF

DELEGATED LEGISLATION…………………………4-6

3. CONSTITUTIONALITY OF DELEGATED
LEGISLATION…………………………………………..7-9

4. INDIAN SCENARIO……………………………………10-14
 Privy Council and delegated legislation………...10-11
 Delegation held invalid by federal court………..11-12
 Delegated legislation and Indian Constitution…12-14

5. ESSENTIAL LEGISLATIVE FUNCTIONS………….15-16

6. CONCLUSION……………………………………………17

7. BIBLIOGRAPHY………………………………………18

2
INTRODUCTION

With the growth of the administrative process in the Twentieth Century,

administrative rule-making or delegated legislation has assumed tremendous
proportions and importance. Today the bulk of the law which governs people comes
not from the legislature but from the chambers of administrators. The fact is that the
direct legislation of parliament is not complete, unless it is read with the help of rules
and regulations formed thereunder, otherwise by itself it becomes misleading.
In the present day concept of free market economy there has been a tremendous
growth of administrative and regulatory forces which has made outsourcing of law
making power to the administrative authorities a compulsive necessity.therefore,
legislature limits its functions to merely laying down policy and guidelines of the law,
outsourcing all ancillary law making power to the administrative authorities to make
law relevant to the needs of the people.
The term delegated legislation is difficult to define. However, if defined, in a simple
way, delegated legislation refers to all law making which takes place outside the
legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes,
directions or notifications, etc. In other words when an instrument of a legislative
nature is made by an authority in exercise of power delegated or conferred by the
legislature it is called surbordinate legislation or delegated legislation. 1 Salmond
defined delegated legislation as “that which proceeds from any authority other than
the sovereign power and is, therefore, dependant for its continued existence and
validity on some superior or supreme authority”. The term delegated legislation may
be used in two senses, it may mean:
(i) exercise of law making power by the administrative authority delegated to
it by the legislature, or,
(ii) the actual exercise of law making power itself in the forms of rules and
regulations.

1
HALSBURY’S LAWS OF ENGLAND, 4th Edn., Vol 44, pg 981-84

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GROWTH OF THE CONCEPT OF DELEGATED LEGISLATION

Delegated legislation is not a new phenomenon. Ever since the statutes came to be
made by parliament, delegated legislation also came to be made by an authority to
which the power was delegated by Parliament. Going back into history one can find
the Statute of Proclamation, 1539 under which Henry VIII was given extensive
powers to legislate by proclamations. This proves the fact that there was and will
always be need for delegated legislation. The exigencies of the modern state,
especially social and economic forums, have given rise to delegated legislation on a
large scale, so much so that a reasonable fear arises among the people that they are
being ruled by the bureaucracy.2
The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws, as
against this the total number of statutory orders and rules passed in the same period
was approximately 25, 414. Corresponding figures for States and Union Territories
are not available, but the number of rules issued under the delegated powers may well
be astronomical.3
The modern trend is that Parliament passes only skeletal legislation. A classical
example may be the Imports and Exports (Control) Act, 1947, which contains only
eight sections to provide through the rule making power delegated to them under
legislation and leaves everything to the administrative agencies and delegates the
whole power to the administrative agency to regulate the whole complex mechanism
of imports and exports. The examples may be multiplied. This trend brings us to the
need matrix of the phenomenon of delegated legislation or administrative rule
making.
The basis of need matrix of administrative rule making lies in the fact that the
complexities of modern administration are so baffling and intricate and bristle with
details, urgencies, difficulties and need for flexibility that our massive legislatures
may not get off to a start if they must directly and comprehensively handle legislative
business in all their plenitude, proliferation and particularisation. Therefore, the
delegation of some part of legislative power becomes a compulsive necessity for

2
Sgricultural Marjet Committee v. Shalimar Chemical Works (1997) 5 SCC 516
3
Avinder Singh v. St. of Punjab (1979) 1 SCC 137

4
viability. If the 525-odd parliamentarians are to focus on every miniscule of
legislative detail leaving nothing to subordinate agencies the annual output may be
both unsatisfactory and negligible. Law making is not a turnkey project, ready made
in all details and once this situation is grasped the dynamics of delegation easily
follows. With the growth in the administrative process of rule making there were
several reasons which were compelling for the growth of delegated legislation.

1. Pressure upon Parliamentary Time:

As a result of the expanding horizons of the state activity, the bulk of legislation is so
great that it is not possible for the legislation to devote sufficient time to discuss all
the matters in detail. Hence there is need for a delegation of power.

In the case of Arvindar Singh v. State of Punjab the municipality would have been
directly responsible to the locality has been a strong factors is support of broad
delegation to municipality, this factor was absent here. Further, in the instance
situation, the residents lost their right to object levy of the tax which they could have
exercised if municipality and not the state government. S.C. Cited study of Prof.
Bakshi, he conducted survey in 1973 to 1977, according to that particular survey
number of legislation, 302 legislation passed by legislature throughout country.
Whereas that time executive passed during four years period 25,440 legislation and
basic requirement of legislation 26000.

2. Technicality:

Subject matter technical in nature, apart from the broad principles involved, technical
matters are difficult to include in a bill, since they cannot be effectively discussed in
parliament. Sometimes, the subject matter on which legislation is required is so
technical in nature that the legislator, being himself a common man, cannot be
expected to appreciate and legislate on the same, and the assistance of experts may be
required. Hence this lead to the growth of delegation of power.

3. Flexibility:

At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen

5
situations demanding exigent action. Hence there is a need for flexibility which leads
to the growth of delegation of power.

4. Experimentation:

The practice of delegated legislation enables the executive to experiment. The method
permits rapid utilization of experience and implementation of necessary changes.

5. Emergency situation:

In the time of emergency, quick action is required to be taken. The legislative process
is not equipped to provide for urgent solution to meet the situation. Hence there is
need for delegation of power.

6. Confidentiality:

Sometime legislature coming with legislation they do not know its enforceability.
There is situation where parliament fill requirement legislation and this particulars
most of the time confidentiality that is National Security Act, it require security
because they want to protect. For example, food shortage, petrol prices raise that time
particular legislation come to enforce to keep confidentiality

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CONSTITUTIONALITY OF DELEGATED LEGISLATION

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. Today the necessity to aid the transition from laissez faire to
a welfare and service state has led to tremendous expansion of government authority.
The new role of State can be fulfilled only through the use of greater power in the
hands of the government which is most suited to carry out the social and economic
tasks before the country. The task of enhancing the power of the government to
enable it to deal with the problems of social and economic reconstruction has been
accomplished through the technique of delegation of legislative power to it. This
delegation of legislative power raises a natural question of constitutionality.
In England, Parliament is supreme and, therefore, unhampered by any constitutional
limitations, Parliament has been able to confer wide legislative powers on the
executive. However, sovereignty of Parliament does not mean that there are no
principles to which the practice of delegation must conform. The Committee on
Minsters’ powers in its third recommendation had suggested that the precise limits of
law making power which Parliament intends to confer on a Minister should always be
expressly defined in clear language by the statute which confers it- when discretion is
conferred, its limits should be defined with equal clearness. Laying down of limits in
the enabling Acts within which executive action must work is of greater importance to
England than to any other country, because in the absence of any constitutional
limitation, it is on the basis of those parliamentary limits alone that the power of
judicial review can be exercised.
In the USA, the rule against delegation of legislative power is basically based on the
doctrine of separation of powers and its necessary corollary ‘delegatus non potest
delegare’. In America the doctrine of separation of powers has been raised to
constitutional status. The U.S. Supreme Court has observed that the doctrine of
separation of powers has been considered to be an essential principle underlying the
constitution and that the powers entrusted to one department should be exercised
exclusively by that department without encroaching upon the powers of another.4

4
Field v. Clarke 143 US 649, 692 (1892)

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Panama Refining Co. v. Ryans5 is a case based on section 9 of the Industrial Recovery
Act, 1933. section 9 authorised the President to prohibit the transportation in inter-
state and foreign commerce, petroleum and the products thereof produced or
withdrawn from storage in excess of any State law or valid regulation. The President
authorised the Secretary of the Interior to exercise all powers under section 9.
regulation V provided that every purchaser and shipper should submit the details of
purchase and sale of petroleum. Panama Refinery Company challenged Section 9 of
the Industrial Recovery Act, 1933 as unconstitutional delegation of legislative powers.
The Act laid down that the policy of the law ‘is to encourage national industrial
recovery’ and to ‘foster fair competition’. The US Supreme Court held the Act as
unconstitutional on the ground that the adequacy of prescribed limits of delegation of
legislative power is not satisfied by laying down a vague standard for administrative
action. Chief Justice Hughes observed that an executive order must, in order to satisfy
the constitutional requirement, show the existence of particular circumstances and
conditions under which the making of such an order has been authorised by the
congress.
In Schchter Poultry Corp.v. United States6, the Corporation which was engaged in
live poultry operations, challenged the constitutionality of section 3 of the National
Industrial Recovery Act on the ground of unconstitutional delegation of legislative
power. Section 3 of the Act authorised the President to approve “Codes of Fair
Conduct” laying down the standard of fair competition for a particular trade or
industry. The Act made in violation of the Code punishable. Chief Justice Hughes
held that section 3 as unconstitutional on the ground that it supplies no standard
besides the statement of the general aims of rehabilitation, correction and expansion
in section 1. therefore, in the opinion of the Court it was a case of virtual abdication of
legislative powers by the Congress.
Since the decision in this case the balance has tilted in the other direction, perhaps
because of social and economic imperatives. Thus pragmatic considerations have
prevailed over theoretical objections. Hence, the Court has allowed a wide margin to
the Congress in laying down a valid standard. If the delegation is of a regulatory
nature, the Court has upheld constitutionality of the delegation of legislative power
even in the absence of any specified standard. Therefore, in Lichter v. U.S.7, the
5
293 US 388 (1935)
6
295 US 495
7
334 US 742 (1947)

8
Supreme Court held the delegation valid observing that the statutory term “excessive
profits” was sufficient expression of legislative policy and standard to render it
constitutional. In this case, the Reorganisation Act, 1942 had empowered
Administrative Officers to determine whether the prices were excessive and to
recover profits which they determined to be excessive and to recover profits which
they determined to be excessive.

INDIAN SCENARIO

9
The Privy Council and Delegated Legislation

As the Judicial Committee of the Privy Council was the highest court of appeal from
India till 1949, the question on the constitutionality of delegated legislation came
upon before the Court in the case of Queen v. Burah8. In this case, Act 22 of 1860
purported to remove a district called Garo Hills from the jurisdiction of civil and
criminal courts and from the control of the officers of revenue constituted by the
regulations of the Bengal Code and the acts passed by the legislature then or thereto
established in British India and from the laws prescribed for such courts and officers
to vest the administration of civil of civil and criminal justice within that territory in
the Lt. Governor of Bengal. . By section 2, this Act was to come into operation on
such day as the Lieutenant-Governor was empowered from time to time, by
notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the
provisions contained in the Act to the Jaitia, Naga and khasia Hills. Under the Act and
these notifications, Burah was tried on a charge of murder by High Court of Calcutta,
by a majority, decided in favour of Burah. Thereupon the Government appealed to the
Privy Council. Privy Council reversed the decision of Calcutta High Court and
validate the S.9. Privy Council observed:9
“The Indian Legislature has powers expressly limited by the Act of the Imperial
Parliament, which created it, and it can, of course, do nothing beyond the limits,
which circumscribe these powers. But when acting within those limits, it is not any
sense an agent or delegate of the Imperial Parliament, but has, and was intended to
have, plenary powers of legislation, as large, and of the same nature, as of Parliament
itself.”
The Privy Council made it clear that the Governor-General-in-Council could not by
legislation create in India a new legislative power not created or authorised by the
Council’s Act. Nothing of that sort, however, had been done there. The Indian
legislature had exercised its judgment as to the place, person, laws, powers and what
the Lt. Governor was required to do was to make it effective upon the fulfilment of
certain conditions. The kind of delegation which the Privy Council upheld in Burah’s
case is known as conditional legislation. Strictly speaking, this is not the delegation of
legislative power, as, what the legislature leaves to the subordinate authority is not

8
(1878) 3 AC 889
9
(1878) 3 AC 889, 903-904

10
supplementing of the law it has enacted by the rules, regulations etc. but the mere
determination as to whether certain conditions, which the legislature itself lays down,
were fulfilled.10

Delegation held invalid by federal court

The courts in India were, however, not very kind towards delegation of legislative
power by Indian Legislatures. In Emperor v. Benorilal Sarma11, an ordinance which
provided for trial of certain types of offences by special courts and gave power to the
government to direct as to what offences were to be tried by such special courts was
held invalid by the Calcutta High Court on the ground that it contained excessive
delegation of legislative power. That decision was later affirmed by the Federal Court
of India on appeal. Jatindra Nath v. Province of Bihar12 was decided by the Federal
Court of India as the final court of appeal in India in which delegation of legislative
power was held ultra vires the Parliament. The Bihar Maintenance of Public Order
Act 1948 was to remain in force for 1 year provided that the Provincial Government
might by notification for resolution passed by the Council, direct that it should remain
in force for a further period of one year with such modifications, if any, as might be
specified by it in the notification. The Federal Court held that the power to extend the
operation of the Act beyond the period mentioned by the act was prima facie a
legislative power and could not be delegated. Similarly, the court held that the power
to modify an act of legislature without specifying any limitation on such power of
modification was legislative in nature and hence could not be delegated.
An analysis of the pre-independence judicial decisions of the Privy Council leads to
the conclusion that delegation of legislative power was permitted if:
(i) the delgated power was ancilliary to legislation; and
(ii) the legislature retained the power to control the delegate and did not efface
itself.
The decision of Federal Court in Jatindra Nath v. Bihar however, narrowed down the
scope of delegation. In that case, the Federal Court took a more restricted view and
held that the power to extend the life of an act or to make modifications in it
10
Tamil Nadu v. K Sabanayagam (1998) 1 SCC 318
11
AIR 1945 PC 48
12
AIR 1949 FC 175

11
amounted to self abdication or self effacement by the legislature. This narrow view
was not in consonance with the liberal view adopted by the Privy Council in several
decisions. Moreover, such a restricted view could not be realistic and could
unnecessarily imperil the flexibility of legislative operation.

Delegated legislation and Indian Constitution

The decision in Jatindra Nath created confusion. It cast shadow on many laws which
contained similar provisions. Those who appreciated the complex nature of modern
government could not deny that delegation of that sort was normal and unavoidable.
In order to remove doubts regarding the validity of a number of laws which contained
such delegation, the President of India by reference under Art 143 of the Constitution
invited the Supreme Court to give opinion on the constitutional validity of the
delegation of legislative power by an Indian legislature. Three Central Acts, namely,
sec. 7 of the Delhi Laws Act 1912, sec. 2 of the Ajmer-Mawara(Extension of Laws)
Act 1947 and sec. 2 of the Part C States (Laws) Act 1950, were referred for such
opinion with a view to making the issue specific. In Re Delhi Laws Act13 The Supreme
Court dealt with following questions:
(i) Could the legislature empower the executive to extend to any area within
the jurisdiction of such legislature any law or laws that might have been
passed or would be passed by such legislature for other territories subject
to its control? This question was answered in the affirmative by a majority
of six judges to one judge.
(ii) Could an Indian legislature empower the executive to extend the laws
passed by other legislatures for the other territories to the territory subject
to the control of such executive? This was answered affirmatively by a
majority of five judges to two.
(iii) Could a legislature empower the executive to make restrictions and
modifications in a law of another legislature while applying it? It was
unanimously held that the executive could make incidental changes, which
did not affect the essential features of the law.

13
AIR 1951 SC 332

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 (iv) Could a legislature empower the executive to repeal or amend any law,
which was in force in the territory subject to its control? The majority
opinion was that such delegation was not permissible.

A close perusal of the various judgements delivered in the above casesshows that two
distinct points of view were presented to the Court. It was contended by the learned
Attorney-General, MC Setalvad, that plenary legislative power carried with it a
general power to delegate such power carried with it a general power to delegate such
power so long as legislature did not abdicate its authority its authority or efface itself.
It was also further contended that as long as the legislature retained the power to
control the actions of the delegate, there was no abdication of authority by legislature.
According to this view, short of total abdication of its legislative power, delegation of
legislative power was valid. On the other hand, it was argued that delegation of
legislative power by the legislature offended the theory of separation of powers and
since the legislature itself was the delegate of the people, it could not re-delegate its
power.14
The Supreme Court took a via media between these two views. While it accepted the
view of the learned Attorney General that delegation of legislative power was
ancillary to legislation, it held that the Parliament could not delegate the essential
legislative power. Although the Indian Constitution does not embody the principle of
separation of power and the Indian Parliament was never considered an agent or
delegate of the people, the constitution could not have left it to any one of the three
organs of government to entrust its functions to any other organ. No one organ could
change the arrangement of distribution of power by vesting in some other body the
power that must essentially belong to it. The limitation upon delegation of legislative
power would therefore be than an Indian Legislature could not part with the essential
legislative function that had been expressly vested in it by the Constitution. It could
delegate the power of filling up of details or of supplementing the legislation to the
executive.
The Supreme Court, therefore, held:
(i) Section 7 of the Delhi Laws Act which gave power to the Provincial
Government to extend with such restrictions and modifications as it

14
Delegata potestas non potest delegari

13
 thought fit, to the Province of Delhi or part thereof, any enactment which
was in force in British India, was valid;
(ii) Section 2 of the Ajmer- Merwara (Extension of Laws) Act 1947, which
empowered the Central Government to extend to the province of Ajmer-
Merwara with such restrictions and modifications as it thought fit, any
enactment which was in force in any other province, was valid;
(iii) Section 2 of the Part C States (Laws) Act 1950 which empowered the
Central Government to extend to any part C state or any part of such state,
with restrictions and modifications as it thought fit, any enactment which
was in force in a Part A state, was valid; and
(iv) The same section which has been named in (iii) above in so far as it further
empowered the State to make provision for the repeal or amendment of
any corresponding law which was for the time being applicable to the part
C State was void as it amounted to excessive delegation of legislative
power.

After this decision, the main controversy in every case involving delegation has,
therefore, been the question of determination of what is essential legislative function
which cannot be delegated and that which is non-essential which can be delegated.

ESSENTIAL LEGISLATIVE FUNCTIONS

The concept of essential legislative function can be clearly understood by citing some
important case laws. In the case of Rajnarain Singh v. Chairman, Patna Admn.

14
Committee15, Section 3(1)(f) of the impugned Act empowered the Patna Local
Administration to select any provision of the Bengal Municipality Act 1884 and apply
it to Patna area with such restrictions and modifications as the government may think
fit. The government picked up section 104 and after modification applied it to the
town of Patna. The Supreme Court declared the delegation ultra vires on the ground
that the power to pick a section for application to another area amounts to delegating
the power to change the policy of the Act which is an essential legislative power, and
hence, cannot be delegated.
In Hamdard Dawakhana v. Union of India16, Parliament passed the Drugs and Magic
Remedies (Objectionable Advertisements) Act, 1954 to check the mischief being
done to the innocent patients suffering from certain incurable diseases through
advertisements claiming magic remedies for such diseases. Section 3 laid own a list of
diseases for which advertisements were prohibited and authorised the Central
Government to include any other disease. This is the first case where the Supreme
Court struck down an Act on the ground of excessive delegation of power.
In the case of Avinder Singh v. State of Punjab17, the Court took a very liberal view
on delegated legislation.
In the case of Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. V. CST18, a new test toc heck
the constitutionality of delegated legislation was propounded. According to Matthews
J., so long as the legislature can repeal the enabling act delegating law-making power,
it does not abdicate its legislative function and therefore, the delegation muct be
considered valid no matter howsoever broad the delegation may be. But in this case
the majority reiterated the well established test of “policy and guidelines”. But
Matthews J. applied his own opinion again in the case of N.K. Papiah v. Excise
Commissioner.
But Supreme Court in the case of Registrar of Co-operative Societies v. K.
Kunjambu19 held that “policy and guideline” test is a tentative test and can be re-
opened.
The law on the constitutionality of delegated legislation was finally summed up by the
Court in the case of Mahe Beach Trading Co. v. Union Territory of Pondicherry20 ,
15
AIR 1954 SC 569
16
AIR 1960 SC 554
17
(1979) 1 SCC 137
18
(1974) 4 SCC 98
19
(1980) 1 SCC 561
20
(1996) 3 SCC 741

15
where the Court held that “If there is abdication of power or there is excessive
delegation or if there is total surrender by legislature of its legislative functions to
another body then it is not permissible but there is no abdication where legislature has
expressed its will on a particular subject matter to surrender its powers to some
subordinate authority.” The same principle was reiterated in the case of Agriculatural
Market Committee v. Shalimar Chemical Works.

CONCLUSION

Delegated legislation in the present scenario of administrative rule making is a very

important and indeed an inseparable part. Delegation of powers is not only necessary
for proper functioning of the system but also to have a effective and efficient rule of
law. Plenary power of law making are entrusted to elected representatives, but in

16
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
legitimization 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. Essential legislative functions, as has been
already explained through examples cannot be delegated and any delegation of such
nature is ultra vires to the constitution. Thus, delegation of powers upto a permissible
limit is justified for running a nation properly.

BIBLIOGRAPHY

 BOOKS
o V.N Shukla, Law of Constitution, 19th Edn

17
o I.P. Massey, Administrative Law, 7th Edn
o Administrative Law by Sathe.

18