UNITED WORLD SCHOOL OF LAW

SUBJECT: ADMINISTRATIVE LAW

TOPIC: DELEGATED LEGISLATION AND REASONS FOR ITS

GROWTH

SEMESTER 5

BATCH 2019-2024

SUBMITTED TO: SUBMITTED BY:

Prof. Ramdhass Perumal Shaily Agrawal

ENROLLMENT NO:
20190401081

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 DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been
incorporated without due acknowledgement.

-SHAILY AGRAWAL

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TABLE OF CONTENTS

TABLE OF CASES.............................................................................................................................4
RESEARCH METHODOLOGY.......................................................................................................5
INTRODUCTION...............................................................................................................................6
DEFINITION OF DELEGATED LEGISLATION..........................................................................7
MEANING OF DELEGATED LEGISLATION:.............................................................................7
HISTORY OF DELEGATED LEGISLATION IN INDIA..............................................................8
REASONS FOR GROWTH OF DELEGATED LEGISLATION...................................................9
DELEGATED LEGISLATION UNDER THE CONSTITUTION OF INDIA.............................11
CONCLUSION..................................................................................................................................14
BIBLIOGRAPHY..............................................................................................................................15

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TABLE OF CASES

Queen v. Burah [1878] UKPC 26

D.S. Grewal v. The State of Punjab, 1959 AIR 512

Panama Refining Co. v. Ryan, 293 U.S. 388

State Of Sikkim vs Surendra Prasad Sharma, 1994 AIR 2342

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RESEARCH METHODOLOGY

A. Objective:

 To do an in-depth study of the topic Delegated Legislation.

B. Hypothesis:

 Delegated Legislation is basically the act of entrusting another with authority or

empowering another to act as an agent or representative

C. Research Questions:

 What is Delegated legislation?

 What are the reasons for the growth of Delegated legislation?

D. Coverage And Scope:

 The coverage of this project is limited to the extent of the topic Delegated Legislation
and reasons for its growth.

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INTRODUCTION

In the era of legal theory, delegated legislation is one of the most contentious issues because
of its various implications. Indian democracy is said to rest on the much-admired four pillars
and these are the legislature, the executive, the judiciary, and the press. These pillars are
empowered by the constitution not to hinder in the matters of others. According to the
Constitution, the legislative has legislative powers and the Executive has the power to
execute the laws. Similarly, the Judiciary has the power to resolve dispute and to meet out
justice. But it has to be kept in mind that there are multifarious functions that have to be
performed by the Legislature in welfare states and it is not an easy task for the legislature to
look after every matter.

And with this increasing legislative activity, the legislatures are not able to find adequate time
to legislate on every minute detail. They have restricted themselves to policy matters and
have left a large volume of area to the Executive to make rules to carry out the purposes of
the Legislature. In such types of situations, the system of delegated legislation arises to our
mind. Therefore, the need for delegation is essential and is sought to be justified on the
ground of flexibility, adaptability and speed. This delegation is also identified as ‘secondary
legislation’ or ‘subordinate legislation’. The Act that gives the executive the power to
legislate is named the ‘Enabling Statute’ or ‘Parent Act’. The standard of rule of the majority
has made authoritative controls scarce. The term delegated legislation is hard to describe. 1

1
‘Delegated Legislation in India’ (August 2, 2019, ipleaders) <https://blog.ipleaders.in/delegated-legislation-in-
india/> Accessed on 12th Nov, 2021

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DEFINITION OF DELEGATED LEGISLATION

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority
or empowering another to act as an agent or representative’. E.g., Delegation of Contractual
Duties.

The Dictionary further defines ‘Doctrine of Delegation’ as:

“The principle (based on the Separation of Powers Concept) limiting Legislature’s ability to
transfer its legislative power to another Governmental Branch, especially the Executive
Branch.”

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in a state and
that depends for its continued existence and validity on some superior or supreme authority.”

The Principle of Delegated Legislation has been defined as:

“This principle which has been well-established is that the legislature must lay down the
guidelines, the principles of policy for the authority to whom power to make subordinate
legislation is entrusted.”

MEANING OF DELEGATED LEGISLATION:

Meaning One of the advances in the era of administrative process made during these days is
that apart from 'pure' administrative function, the executive performs legislative function as
well. Due to a number of reasons, there is fast growth of administrative legislation.
According to the traditional theory, the function of the executive is to look after the law
enacted by the legislature, and in the ideal State, the legislative power must be exercised
exclusively by the legislators who are directly responsible to the electorate. But, in reality,
apart from ‘pure’ administrative functions, the executive performs many legislative and
judicial functions also. It has, therefore, been rightly said that the delegated legislation is so
multitudinous that a statute book would not only be unfinished but misleading unless it be

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read along with delegated legislation which amplifies and supplements the law of the land. It
is very tough to give any precise definition of the expression ‘delegated legislation.’ It is
equally hard to state with certainty the scope of such delegated legislation. As per Salmond,
legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or
supreme power, the latter flow from any authority other than the sovereign power, and is,
then, dependent for its existence and continuance on superior or supreme authority. Delegated
legislation thus is a legislation made by a body or person other than the Sovereign in
Parliament by virtue of powers conversed by such sovereign under the statute. 2 A basic
meaning of the expression ‘delegated legislation’ may be given as: ‘When the function of
legislation is entrusted to organs other than the legislature by the legislature itself, the
legislation made by such organs is called delegated legislation.’

HISTORY OF DELEGATED LEGISLATION IN INDIA

The historical backdrop of the delegation of power can be traced from the Charter Act of
1833 when the East India Company was recapturing political impact in India. The Charter
Act of 1833 conferred the administrative powers only in the hands of the Governor-General-
in Council, which was an official body. He was allowed to make laws and guidelines for
revoking, correcting or modifying any laws or guidelines, which were for all people
regardless of their nationality. In 1935 the Government of India Act, 1935 was passed which
confined a serious plan of delegation. The report of the Committee of Ministers’ Powers was
submitted and affirmed which entirely settled the case for assignment of forces and
appointment of enactment that was viewed as inescapable in India.3

However, our Constitution depended on the separation of power; a total partition of forces
was unrealistic hereafter it kept up the holiness of the tenet in the cutting-edge sense. The
Indian Constitution does not reject the assignment of forces. Then again there are a few
arrangements where the official had been approved with the administrative forces. For
example, the administrative forces of the President under the Indian Constitution are
prominent. The problem of the delegation of legislation in India initiated under the British
rule when the controversy on the problem in the West was in full swing. In independent

2
<https://www.cusb.ac.in/images/cusb-files/2020/el/law/Delegated%20Legislation_6th%20Sem.pdf> Accessed
on 12th Nov, 2021
3
‘Delegated Legislation in India’ (August 2, 2019, ipleaders) <https://blog.ipleaders.in/delegated-legislation-in-
india/> Accessed on 12th Nov, 2021

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India, the conflict of settling the problem of the delegation of legislative power was prima
facie to a fight between the English and American type of solution.

The Constitution of India includes of more than four hundred Articles and it had not been
surprised if the Constitution makers include some solution for it. But why these provisions
were merged in the Constitution? This is because the politicians in the Constituent Assembly
inclined to multiply legal formulations. These issues were of minor status on which legal
formulation was made in comparison to other greater constitutional issues that were by-
passed by the Assembly that were left to future accord or judicial interpretation. In the known
case of Queen v. Burah4, nature and extent of Legislature power and the feasibility of its
delegation was considered by the Privy Council. The Privy Council, in this case, held that
Councils of Governor-General was supreme Legislature and has sufficient number of powers
and who are entitled to transfer certain powers to provincial executors. At the time of passing
of New Delhi Act of 1912, the Privy Council recognized the transfer of Legislature power to
the Executive. 

REASONS FOR GROWTH OF DELEGATED LEGISLATION

Many factors are accountable for the rapid growth of delegated legislation in today’s time.
Because of the essential change in the governance of a country from ‘police state’ to the
‘welfare state’ the function and the need of delegated legislation have increased. Following
factors and reasons for growth of delegated legislation can be seen as follows:

 Pressure upon time of Parliament: The area, scope, or horizon of state activities are
expanding day by day and it is hard for the Parliament to make laws on each and
every matter as they are having a lot of work to do and they also have to make
legislation on various matters. The Parliament is so much engaged with matters
concerning foreign policy and political issues that it has not much time to enact the
laws in detail. So, it only frames the broad part of the rule and outline of the
legislation and gives that legislation to the executive or some of its subordinates to fill
the full detail following the essential rules and regulations. It is almost like they have
given the only skeleton and the subordinate have to fill flesh and blood to the skeleton
to make it alive. The committee on Ministers’ Power has observed that if the

4
Queen v. Burah [1878] UKPC 26

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 parliament is not willing to delegate law making power to the subordinate, then he
will not be able to pass the quality of rules and regulations that a person needs to live
a happy life or legislation which a modern public requires.5
 Technicality in the matters: With the progress and advancement in society, things
have become harder, twisted, complicated and technical. So to understand the
technicality of each and every topic, legislature needs the skilful person for that
particular topic who is well aware of each and every detail of that matter. Over the
years it has been noticed that some legislature only know politics and some might
have knowledge about one or two topics. Therefore, after framing policies by the
parliament on any topic, that topic is given to the government department or any
specific person who knows about the technicalities of that particular topic and given
the power to lay down the details.
 Flexibility: Parliamentary amendment is very slow and it needs a process to make
any type of law but by the tool of delegated legislation it can be made expeditiously
with the help of the executives, for e.g., police regulation, bank rate, import and
export, foreign exchange, etc. Also, Parliament cannot predict the contingency while
enacting a law so to make it foresee the workload is being given to the executives. So,
it is necessary to give work to lower body to have that work in a smooth and better
manner. 
 Emergency: In any type of emergency, one should know how to deal with the matter
quickly without any delay. The legislature is not prepared with the skills of providing
an urgent solution to meet the situation of emergency. Delegated legislation is the
only solution to that situation. Therefore, in times of emergency and war, an executive
is given extensive power to deal with that situation. For instance, in England during
the First and Second World War are the Defence of the Realm Act 1914-
15, the Emergency Power Act, 1920, etc. Similarly, in the case of inflation, flood,
epidemic, economic depression, etc immediate remedial actions are necessary and so
delegated legislation comes to rescue.
 Experiment: The practise of delegated legislation allows the Executive to
experiment. As every work is new for the legislative and he has to trial that either this
law is working in perfect condition or not. This method or approach permits the
utilization of experience and implementation of the essential changes in the
5
‘Committee on Subordinate Legislation’ (February 2005, Rajyasabha)
<https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp> Accessed on 14th Nov, 2021

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 application of the provision made by the Parliament. For instance, 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 are
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
changing the provisions.
 Complexity of modern administration: Modern administration used to take added
responsibilities when it came to raise the condition of the citizens such as looking
after their employment, health, education, regulating trade, etc. Therefore, the
complexity in modern administration and growth of states’ function to the social
sphere and economic have allowed the formation of a new form of legislation and to
give extensive powers to various authorities on various occasions. It is essential that
an administration should give an excess of power to activate socio-economic policies.
In a country like Bangladesh where control over private trade, business or property
may be vital to be imposed, it is essential that the administration should hand over the
excess amount of power to implement such policy.

Therefore, we can say that there is a rapid growth of this delegated legislation and also it is
essential for a country to run smoothly.6

DELEGATED LEGISLATION UNDER THE CONSTITUTION OF

INDIA
Although the concept of delegated legislation was not mentioned specifically in the Indian
Constitution it can be understood by understanding Article 312 of the given Constitution.
This Article talks about the right of the Rajya Sabha to open a new branch of All India
Service with a majority of two-thirds majority vote. This basically means that some powers
of legislation will be delegated to the new recruiter of All India Service. There are numerous
cases through which delegated legislation under the constitution of India can be understood.
These are:

D.S. Grewal v. The State of Punjab7

Facts: This particular case questions the constitutionality of All India Service Act, 1951. The
petitioner was appointed to All India Service and posted to the State of Punjab. He held the

6
‘Delegated Legislation in India’ (August 2, 2019, ipleaders) <https://blog.ipleaders.in/delegated-legislation-in-
india/> Accessed on 12th Nov, 2021
7
D.S. Grewal v.The State of Punjab, 1959 AIR 512

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charge of Superintendent of Police in many districts but was reverted or return to the post of
Assistant Superintendent of Police in August 1957 and was posted to Dharamsala in March in
the year 1958. In the same month, he was well-versed that an action has been taken against
him under Rule 5 of the All-India Services (Discipline and Appeal) Rules, 1955. An enquiry
committee was set up in contradiction of him under the leadership of Shri K. L. Bhudiraja.
He then instantly made an application under Article 226 of the Indian Constitution before the
Punjab High Court challenging the constitutionality of the Act and legality of the enquiry
against him. Six contentions were made by the petitioner’s lawyer.

Judgment: K.N. Wanchu was Justice of the Supreme Court at that time, dealing with the
power of delegated legislation under Article 312 of the Indian Constitution. As the case has
been very serious the petitioner can be removed or compulsorily dismissed from the post by
the Central Government and therefore Central Government has instituted enquiry against
him. There is zero mentioned in Article 312 of the Indian Constitution that takes away the
power of delegation.

The delegation power of India and America is that the Congress doesn’t have much power of
delegation but it is unlike from the English in which the parliament is supreme has an excess
of delegating power.

Panama Refining Co. v. Rayan8

Facts: Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the President of
the United States with some powers under which he can make any order and desecration of
that order may lead to panel provision. The President issued the prohibition made by the
above act through the executive and authorized the Security of Interior to exercise all the
powers conferred in the President under section 9(c) of the Act. The Security of Interior
issued a directive to accomplish the President’s order(s). The Section 9(c) mentioned above
was challenged on the ground that it was an unconstitutional delegation of legislative power
by the Congress.

Judgment: The Judgement of Supreme Court of the United States that delegation of

legislative power given by President is void. The court held that Congress can delegate power
to the Executive only on the basis of two conditions, firstly, the Statute laid down these
policies. Secondly, one has to create the standards and give the administration the power of
making the subordinate rule within the given limit.
8
Panama Refining Co. v. Ryan, 293 U.S. 388

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Sikkim v. Surendra Sharma9

Facts: After Sikkim became the State of the Union Of India, the Directorate of Survey and
Settlement of Government of Sikkim formed and advertised for certain temporary posts. Just
like other people, the respondent has also applied for the post. They got selected and were
fixed in different capacities. After the survey work got finished some of the employees got
terminated from the job. In 1982, some of the employees, who were ‘not locals’, filed a writ
petition in the High Court of Sikkim challenging the conclusion of the Government asking
why it has fired the employees from the service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees exclusively on the ground
that he is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was
held that all rules and legislations formed under the power which is granted under sub-clause
(k) of the Article 371F constituted subordinate legislation. This above mentioned article was
added to the Constitution through the 36th Constitutional Amendment.

CONCLUSION

Delegated or subordinate legislation can be understood as rules of law made under the
authority of an Act of Parliament. While making law is the function of legislature, it may, by
a statute, delegate its power to other bodies or persons. As discussed above, the statute which
9
State Of Sikkim vs Surendra Prasad Sharma, 1994 AIR 2342

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delegates such power is known as Enabling Act. By Enabling Act, the legislature, lays down
the comprehensive guidelines and detailed rules are enacted by the delegated authority.
Delegated legislation is allowed by the Indian Constitution. It occurs in form of bye rules,
regulations, orders, bye laws etc. There are many factors accountable for its increase:
Parliament and State Legislature are too busy to deal with the growing mass of legislations,
which are necessary to regulate daily affairs. Modern legislation needs technicality and
expertise knowledge of problems of various fields, our legislators, who are politicians are not
expected to have such knowledge. Subordinate legislations are more supple, quickly and
easily amendable and revocable than ordinary legislation, in case of failure or defect in its
application. When emergencies arise which were not forceable at the time of making it,
subordinate legislation can pass an act quickly to handle them. Quick, effective and
confidential decisions are not likely in body of legislatives. So, executives are delegated with
power to make rules to deal with such emergency situations. These are the essential factors,
besides many others, for the fast increase in delegated legislation today. Justice P B Mukerjee
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 an escape from the duty imposed on them by voters of democracy.
In England the king lost the legislative power at Runnymede and parliament lost legislative at
stampede that followed since to provide the government for the country through
administration and bureaucracy”.

BIBLIOGRAPHY

 http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-
and-Parliamentary-Control.html

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 https://www.cusb.ac.in/images/cusb-files/2020/el/law/Delegated%20Legislation_6th
%20Sem.pdf
 https://blog.ipleaders.in/delegated-legislation-in-india/
 https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp

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