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SHRI VILE PARLE KELAVANI MANDAL’S

JITENDRA CHAUHAN COLLEGE OF LAW

TITLE – DELEGATED LEGISLATION IN INDIA: - ANALYSIS

OF THE CONCEPT & IT'S IMPLICATION IN INDIA, USA AND
UK

SUBJECT – ADMINISTRATIVE LAWS

NAME – VAIBHAVI MODI

ROLL NUMBER & DIVISION – 143, C

SUBMITTED TO – PROF. NAVANITHA WARRIER & PROF.

SNEHA ANIL KUMAR
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ACKNOWLEDGMENT

I would like to take this opportunity to express my gratitude to several people without whom it
would not be possible to complete this project. Firstly, I would like to thank my Principal, Dr.
Priya J. Shah for providing me with this golden opportunity. Secondly, I would like to thank my
Professors Navanitha Warrier & Sneha Kumar. They provided me with their vital support and
guidance because of which I could make this project. This project helped me in finding my
capabilities and also enhance my research skills.

I would also like to express my sincere thanks to my family; it would not have been possible to
finish this project without their support and coordination. Lastly, I would like to thank my
friends who have motivated me and helped me at every stage of making this project in this
limited time frame.
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TABLE OF CONTENT

PAGE
SR. NO TOPIC NO
1 Introduction 4
2 Meaning of Delegated Legislation 4
3 Reasons for Delegated Legislation 5
4 Delegated Legislation in India 8
5 Delegated Legislation in United States of America 11
6 Delegated Legislation in United Kingdom 13
7 Bibliography 15
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DELEGATED LEGISLATION IN INDIA: - ANALYSIS OF THE CONCEPT & IT'S

IMPLICATION IN INDIA, USA AND UK

INTRODUCTION
Indian democracy is said to rest on the acclaimed four pillars and these are the legislature, the
executive, the judiciary, and the press. These pillars are empowered by the constitution not to
interfere in the matters of others. As per 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 we have to keep 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.
In contrast to this increasing legislative activity, the legislatures are not able to find adequate
time to legislate on every minute detail. They have limited 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 comes to our mind.
Therefore, the need for delegation is necessary and is sought to be justified on the ground of
flexibility, adaptability and speed. This delegation is also known as ‘Secondary Legislation’ or
‘Subordinate Legislation’. The Act that gives the executive the power to legislate is called the
‘Enabling Statute’ or ‘Parent Act’. The standard of rule of the majority has made authoritative
controls inadequate.
Delegated Legislature is one of the essential elements of administration whereby the executive
has to perform certain legislative functions.

MEANING OF DELEGATED LEGISLATION

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power or to
act as his agent or representative. ‘Delegated legislation’ means exercising of legislative power
by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature.
Delegated legislation, additionally alluded to as an auxiliary legislation, is an enactment made by
an individual or body other than Parliament. Parliament, through an Act of Parliament, can allow
someone else or some body to make enactment. An Act of Parliament makes the system of a
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specific or particular law and tends to contain an outline of the purpose for the Act. By
delegating the legislation by Parliament to the Executive or any subordinate, it empowers
different people or bodies to integrate more details to an Act of Parliament. Parliament along
these lines, through essential enactment (for example an Act of Parliament), licenses others to
make laws and guidelines through delegated legislation. The enactment made by authorize
person must be made as per the reason set down in the Act of Parliament.
According to Sir John Salmond, “Subordinate legislation is that which proceeds from any
authority other than the sovereign power.”
Justice P.B Mukherjee also observed about delegated legislation that it was an expression which
covered a multitude of confusion. He viewed it as an excuse for the Legislature, a shield for
Executors and a provocation to the Constitutional Jurist.
According to M.P Jain, this term can be used in two senses:
 Exercise by subordinate agency or agency that is lower in rank to legislature delegated to
it by the Legislature.
 The Subsidiary rules made by the Subordinate Authority in the execution of the power
bestowed on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation.

REASONS FOR DELEGATED LEGISLATION

1. Technical Issues:
Members of parliament may be the best politicians but they are not expert to deal with
highly technical matters. When the subject matter under the Act is completely technical
in nature, then a consultation of experts is required. Therefore, legislative power may be
granted to experts for them to deal with the technical issues i.e., labour, tax, gas, atomic
energy, drugs, electricity, etc.

2. Complexity of the Modern State:

In a welfare state, the Government has to look after many issues related to citizens
including employment, health, education, regulating trade, industry, commerce, etc. This
resulted in the complexity of the modern administration and the expansion of its
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functions. The administration has to look after the economic and social issues. This leads
to the formation of a new form of legislation and to give wide powers to various
authorities on various occasions. It 1s necessary that the administration should be given
ample power to implement such a policy so that immediate action can be taken. The
objective of the welfare state cannot be achieved without delegated legislation.
In Devi Das Gopal Krishan v. State of Punjab, AIR 1967 SC 1895 case, Subba Rao, CJ.
provided another justification for delegated legislation that the Constitution confers
power and imposes a duty on the legislature to make laws, but in view of the multifarious
activities of a welfare State, it cannot presumably work out all the details to suit the
varying aspects of a complex situation. The legislature must necessarily delegate the
working out of details to the executive or any other agency.

3. Pressure on Parliamentary Time:

Due to complexity of modern State, the area, scope, or horizon of state activities are
expanding day by day and it is difficult for the Parliament to make laws on each and
every matter and it is not possible for the Parliament to devote sufficient time to discuss
all the matters in detail. They are required to carry out a lot of work and they also have to
make legislation on various other matters. Hence the Parliament formulates the general
policy — the skeleton and empowers the executive to fill in the details by issuing
necessary rules, regulations bye-laws etc. It saves time and avoids overloading of the
Parliament. Thus, the delegated legislation can be amended and/or made without having
to pass an Act through Parliament. As the long procedure of enactment of law trough, the
Parliament is avoided and time is saved.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to
relieve the parent of the strain of overwork and capable of attending to minor matters,
while the parent manages the main business”.
In Avinder Singh v. State of Punjab, AIR 1979 SC 321 case, Justice Kaishna Iyer
observed that making of laws 1s not at all perfect and refined in every detail. Legislation
will be made easier once that is understood.
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4. Flexibility:
Parliament cannot foresee all the contingencies while passing on enactment. At the same
time, the parliamentary amendment is very slow and it requires to follow a strict
prescribed procedure to make any is type of law. But in the case of delegated legislation
changes in the legislation take place more frequently and without delay with the help of
the executives, e.g., police regulation, bank rate, import and export, foreign exchange,
etc. Moreover, the implementation of the law becomes easier and flexible by means of
delegated legislation. So, it is necessary to give work to the lower body to have that work
in a smooth and better manner.

5. Experimentation:
The effectiveness of any law depends on whether it is working in perfect condition or not.
For this live experimentation is to be done during the implementation of the law. The
delegated legislation enables the Executive to experiment. This method permits the rapid
utilization of experience and implementation of necessary changes in the application of
the provisions in the light of such experience. It helps in making necessary changes in the
application of the provision made by the Parliament. If the rules and regulations are
found to be satisfactory, they can be implemented successfully. On the other hand, if they
are found to be detective, the detects can be cured immediately. 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.

6. Emergency Situation:
Delegated legislation is very important in dealing with an emergency situation as it arises
without having to wait for an Act to be passed through Parliament to resolve the
particular situation. In times of war, internal disturbances, flood, and other national
emergencies, the executives are vested with extremely wide powers to deal with the
situation. There was substantial growth of delegated legislation during the two world
wars similarly in cases of epidemics, floods, inflation, economic depression, etc. Some
examples of delegation in England during the First and Second World War are the
Defense of the Realm Act 1914-15, the Emergency Power Act, 1920, etc. Similarly, in
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the case 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.

7. Confidential Matters:
Some situations call for the fact that nobody should know the law until it is operational.
Some of those matters include rationing schemes, import duty impositions or exchange
control. People could plan their property rights in a manner that will win over the
intentions of the law when impositions of restriction on private ownership are publicized
before it has been made operational. The privacy of this kind can be attained only through
administrative actions since the common legislative process is ever open.

DELEGATED LEGISLATION IN INDIA

i. Pre-Constitution Period
As regards pre-Constitution period relating to delegated legislation in India, Queen v.
Burah1 is considered to be the leading authority propounding the doctrine of conditional
legislation. In 1869, the Indian legislature passed an Act purporting to remove the district
of Garo Hills from the jurisdiction of the civil and criminal courts and the law applied
therein, and to vest the administration of civil and criminal justice within the same district
in such officers as the Lieutenant-Governor of Bengal might appoint for the purpose. By
section 9, 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 Jaintia, Naga and Khasia Hills and to fix the date of application thereof
as well. By a notification dated October 14, 1871, the Lieutenant Governor extended all
the provisions of notification which was challenged by Burah who was convicted of
murder and sentenced to death. The High Court of Calcutta by a majority upheld the
contention of the appellant and held that section 9 of the Act was ultra vires the powers of
the Indian Legislature. In the opinion of the Court, the Indian Legislature was a delegate
of the Imperial Parliament and as such further delegation was not permissible. Thereupon
the Government appealed to the Privy Council. The Act was held valid by the Privy

1
(1878) 3 AC 889
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Council. It was held that the Indian Legislature was not an agency or delegate of Imperial
Parliament and it had plenary powers of legislation as those of Imperial Parliament. It
agreed that the Governor-General in Council could not, by legislation create a new
legislative power in India not created or authorized by the Council's Act of Imperial
Parliament. However, in fact it was not done. It was a case of only conditional legislation,
as the Governor was not empowered to pass new laws but merely to extend the provisions
of the Act already passed by the competent legislature upon fulfillment of certain
conditions.
The decision of the Privy Council is open to two different interpretations. One
interpretation is that since the Indian legislature is not a delegate of British Parliament,
there is no limit on the delegation of legislative power. But the other interpretation is that
since Privy Council has validated only conditional legislation, therefore, delegation of
legislative power is not permissible.
The question of constitutional validity of delegation of powers came for consideration
before the Federal. Court in Jatindra Nath Gupta v. Province of Bihar 2. In this case the
validity of section 1 (3) of Bihar Maintenance of Public Order Act, 1948 was challenged
on the ground that it empowered the Provincial Government to extend the life of the Act
for one year with such modification as it may deem fit. The Federal Court held that the
power of extension with modification is not a valid delegation of legislative power
because it is an essential legislative function which cannot be delegated. In this way for
the first time, it was ruled that in India Legislative powers cannot be delegated.

ii. Post-Constitution Period

a. Constitutionality of Delegated Legislation. - As the decision in Jatindra Nath
case had created confusion, the question of permissible limits of delegation of
legislative power became important. Therefore, in order to get the position of law
clarified, the President of India sought the opinion of Supreme Court under
Article 143 of the Constitution. The question of law which was referred to the
Supreme Court was of great Constitutional importance and was first of its kind.

2
AIR 1949 FC 175
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The provision of three Acts, viz.,

(i) Section 7 of the Delhi Laws Act, 1912;
(ii) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and
(iii) Section 2 of the Part C States (Laws) Act, 1950, was in issue in Delhi
Laws Act Case, Re.3
There were a few Part C States. Delhi was one of them. Part C States were under
the direct administration of the Central Government as they had no legislature of
their own. Parliament had to legislate for these States. It was, therefore, that
Parliament passed a law, the Part C States (Laws) Act, 1950.
The Central Government was authorized by section 2 of the Part C States (Laws)
Act, 1950 to extend to any Part C State with such modifications and restriction as
it thinks fit, any enactment in force in a Part A State, and while doing so, it could
repeal or amend any corresponding law (other than a central law) which might be
in force in the Part C States. Really, it was a very sweeping kind of delegation.
The Supreme Court was called upon to determine the constitutionality of this
provision. All the seven judges who participated in the reference gave seven
separate judgments "exhibiting a cleavage of judicial opinions on the question of
limits to which the legislature in India should be permitted to delegate legislative
power".
By a majority, the specific provision in question was held valid subject to two
limitations:
(1) The executive cannot be authorized to repeal a law in force and thus, the
provision which authorized the Central Government to repeal a law already in
force in the Part C States was bad; and
(2) By exercising the power of modification, the legislative policy should not be
changed, and thus, before applying any law to the Part C State the Central
Government cannot change the legislative policy.

3
AIR 1951 SC 332
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b. Principles laid down in the Reference Case. - In Re Delhi Laws Act may be
said to be "Siddhanatawali" i.e., principles as regards constitutionality of
delegated legislation. The importance of the case cannot be under-estimated
inasmuch as on the one hand, it permitted delegation of legislative power by the
legislature to the executive, while on the other hand; it demarcated the extent of
such permissible delegation of power by the legislature. In this case it was
propounded:
(a) Parliament cannot abdicate or efface itself by creating a parallel legislative
body.
(b) Power of delegation is ancillary to the power of legislation.
(c) The limitation upon delegation of legislative power is that the legislature
cannot part with its essential legislative power that has been expressly vested in it
by the Constitution. Essential legislative power means laying down policy of law
and enacting that policy into a binding rule of conduct.
(d) Power to repeal is legislative and it cannot be delegated.
The theme of Re Delhi Laws Act case is that essential legislative function cannot
be delegated whereas non-essential can be delegated.

DELEGATED LEGISLATION IN UNITED STATES OF AMERICA

The U.S. Congress functions under a written Constitution and the courts have the power to
interpret the Constitution and declare a Congressional statute unconstitutional if it does not
conform to their view of the Constitution. U.S. laws are written by the legislative branch of the
U.S. Government.
In the U.S.A., the question of delegation of legislative powers thus involves a conflict of values.
On the one hand, the doctrine of separation insists that the legislative function be kept aloof and
distinct from the executive function.
On the other hand, as already noted, the exigencies of modern Government make it practically
impossible to concentrate all legislative power in the hands of the Congress which cannot
possibly dispose of all legislative work by itself in the sense of turning out comprehensive
legislation complete in all details on every subject it undertakes to legislate upon. If Congress
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were not willing to delegate law-making power to some agency, then it may be impossible for it
to enact the kind and quantity of legislation which the country may need.
The simple version is as follows: A representative writes a bill that is then voted on the floor of
the House and the floor of the Senate. If they pass both houses of the legislative branch without
any modifications it goes to the president and he decides to sign it. He can veto the bill and the
legislative branch can override the veto with 67 votes in the Senate (2/3 of the vote) American
laws are really difficult to create. The Speaker of The House has the authority to decide which
bills to send to the appropriate committee.
If it is a spending bill, it would go to the Appropriations Committee. The bill may die in
committee or successfully pass committee but never brought to the floor of The House or floor of
the Senate. The power to bring bills to the floor area up to The Speaker of The House. There are
some slight differences like time-limits for speaking and filibusters but there are rules, mainly. A
bill can be voted for in The House but fail in the Senate for a few different reasons. One reason is
simple: not enough votes. The other is that they can’t agree on the piece of legislation and wish
to add an amendment. The other is the filibuster. A filibuster is a rule of the Senate where
Senators can endlessly talk and interrupt progress in the legislative process.
If a particular party has 2/3 of the votes, they can interrupt the filibuster and continue with
legislative activities. If the bill is slightly changed, it will be sent back to The House and voted
for again. Some laws can successfully pass its appropriate committee, pass both houses, and have
it signed by the president but they can face some constitutionality issues. If a law is believed to
be violating a constitutional right, it will go through the Judicial process and eventually reach the
Supreme Court.
Besides, the U.S. Supreme Court has also invoked the doctrine of delegates non-protest delegate
against delegation by the Congress. The doctrine means that a delegate cannot further delegate
its powers. The courts thus argue that the Congress, being a delegate of the people, cannot
further delegate its law-making functions to any other agency.

Case laws for Delegated legislation in America

In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), also known as the Hot Oil case, was a
case, in which the United States Supreme Court ruled that the Roosevelt Administration’s
prohibition of interstate and foreign trade in petroleum goods produced in excess of state quotas,
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the “hot oil” orders adopted under the 1933 National Industrial Recovery Act, was
unconstitutional. The ruling was the first of several that overturned key elements of the
Administration’s New Deal legislative program. The relevant section 9(c) of the NIRA was
found to be an unconstitutional delegation of legislative power, as it permitted presidential
interdiction of trade without defining criteria for the application of the proposed restriction. The
finding thus differed from later rulings that argued that federal government action affecting
intrastate production breached the Commerce Clause of the Constitution.
In Panama v. Ryan, the Court found that Congress had violated the nondelegation doctrine by
vesting the President with legislative powers without clear guidelines, giving the President
enormous and unchecked powers. The omission of Congressional guidance on state petroleum
production ceilings occasioned the adverse ruling because it allowed the executive to assume the
role of the legislature. Justice Cardozo dissented, claiming that the guidelines had been
sufficient.
Yakus v. U.S. is a case on the other side of the line. During World War II, the office of the Price
Administrator was set up to control prices. The relevant Act declared that the prices fixed ought
to effectuate the declared policy of the Act to stable commodity prices with a view to preventing
wartime inflation and its disruptive causes and effects. In addition, the prices fixed had to be fair
and equitable. In fixing prices, the Administrator had to give due consideration to the prices
prevailing in a designated base-period.

DELEGATED LEGISLATION IN UNITED KINGDOM

The Doctrine of Parliamentary Sovereignty is the heart of UK Constitution. The Parliament is
sovereign in England and there is no restriction on the Parliament by then Constitution. In
England, Parliament also has road powers to delegate its legislative powers to the Executive or
other subordinate bodies.
The Committee on Ministers’ Powers also refers to the fact that the Donoughmore Committee
issued a report in which Sir Cecil Carr, a prominent lawyer from England, quoted around three
parts of the law. The report was published in 1932. It dealt, inter alia, with delegated legislation.
According to the Report, delegation is necessary because:
1. The legislature (Parliament) has. much pressure of work on its time.
2. The legislators lack the technical knowledge required by modern legislation.
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3. Complexities & Contingencies in the law are to be specially dealt with.

4. Amendment of legislation is to be avoided.
It has also been noted that the reality is that Parliament must provide guidance and also scrutinize
the work of the delegate to whom the power to legislate is delegated otherwise there is a danger
that “then servant will be passed over to then master.”

Case laws for Delegated legislation in United Kingdom

Commissioners of Custom and Excise V Cure and Deely Ltd (1962)
In this case, Where the commissioners’ power to make delegated legislation was challenged
under the 1940 Finance Act. Under this Act, the commissioners assessed the amount of tax due
in the event that a tax return was submitted late, but the High Court invalidated this and claimed
that the commissioners had granted themselves power far beyond what Parliament had allowed
them to collect only the amount of tax due. This is another case which clearly shows that many
authorities would misuse the powers ultra vires if delegated legislation is not effectively
controlled. Regulation by the courts has proven highly effective in this case.
The doctrine of parliamentary sovereignty was upheld by Lord Reid in Madzimbamuto v.
Lardner – Burke [1969] 1 AC 645 “It is often said that doing such things would be
unconstitutional for the Parliament of the United Kingdom, meaning that the moral, political and
other arguments against doing them are so strong that most people would consider it extremely
unacceptable if the Parliament did these things. But that does not mean it is beyond Parliament’s
power to do something like this. Although Parliament intended to do any of these, the courts
would not invalidate Parliament’s Act.
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BIBLIOGRAPHY

1. https://blog.ipleaders.in/delegated-legislation-in-india/#Introduction
2. https://blog.ipleaders.in/analysis-concept-delegated-legislation/
3. https://www.cusb.ac.in/images/cusb-files/2020/el/law/Delegated%20Legislation_6th%20Sem.pdf
4. https://thefactfactor.com/facts/law/civil_law/administrative-law/growth-of-delegated-
legislation/4262/
5. https://www.lawnn.com/delegated-legislation-definition-reasons-for-growth-classification/
6. https://lawbhoomi.com/delegated-legislation-in-usa/
7. https://lawbhoomi.com/delegated-legislation-in-u-k/