Delegated Legislation & Delegatus non potest delegare

Under the guidance

Of

Professor Radhika Rodrigues

Submitted By: Kunal Dalvi

Roll no: 213018

Class: S.Y. LL.B

Signature:
 Index
Sr. no Topic Pg. No.

1. Introduction 3

2. Definition 4

3. History of Delegated Legislation in India 6

4. Delegated Legislation: Is it a Necessary Evil? 7

5. Reasons for Growth of Delegated Legislation 8

6. Classification of Delegated Legislation 11

7. Delegated Legislation in England 12

8. Delegated Legislation in the US 13

9. Delegated Legislation in India 15

10. Types of Delegated Legislation 17

11. Advantages of Delegated legislation 19

12. Judicial Control over Delegated Legislation 20

13. Criticism on Delegated Legislation 21

14. Cases on Delegated Legislation 22

15. Conclusion 24

16. Bibliography & Webliography 25

Introduction
In the realm of legal theory, delegated legislation is one of the most debatable issues
because of its various implications. 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 disputes
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 situation, 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. The term delegated legislation is hard to characterize.

In England, theoretically it is only Parliament which can make laws. Looking to the
legislative process, however, one would see that it is really the government which
makes the laws subject to parliamentary control. In addition to the common law and
statute law, the law of the land includes a great deal of what may be termed as
"subordinate" or "delegated" legislation. It comprises Orders in Council, departmental
circulars, rules, regulations, schemes, bye-laws, etc. made in exercise of statutory
powers.

Even in the United States, where the doctrine of delegated legislation has not been
accepted in theory under the doctrine of separation of powers, in practice the legislature
has entrusted legislative powers to the executive. Due to several reasons, particularly
after the two World Wars, there has been rapid growth of administrative legislation.
Garner is right in stating that "it is perhaps more realistic to say that the Government
secures from Parliament such subordinate legislative powers as it wishes for itself".

In India, between 1973 and 1977, Parliament enacted about 300 statutes, but the total
number of statutory rules and orders reached more than 25,000. Corresponding figures
for States and Union Territories are not available, but the number of rules framed under
delegated power may be astronomical.

Definition
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, and is an enactment made by an individual or body other than
Parliament. Parliament, through an Act of Parliament, can allow someone else or
somebody to make enactment. An Act of Parliament makes the system of a 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. The enactment made
by the authorized person must be made as per the reason set down in the Act of
Parliament.

It is very difficult to give any precise definition of the expression delegated legislation. It
is equally difficult to state with certainty the scope of such delegated legislation.
Mukherjea J rightly says:

“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”….

According to Salmonds, 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, therefore, dependent for its existence and
continuance on superior or supreme authority.

Delegation is the act of making or commissioning a delegate. It generally means parting

of powers by the person who grants the delegation and conferring of an authority to do
things which otherwise that person would have to do himself."

Delegated legislation, thus, is a legislation made by a body or person other than the
sovereign in Parliament by virtue of powers conferred by such sovereign under the
statute.

A simple meaning of the expression delegated legislation may be given as under:

“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.”

According to Jain and Jain, the term "delegated legislation" is used in two senses: 1)
exercise by a subordinate agency of the legislative power delegated to it by the
legislature, or 2) the subsidiary rules themselves which are made by the subordinate
authority in pursuance of the power conferred on it by the legislature.

In its first application, it means that the authority making the legislation is subordinate to
the legislature. The legislative powers are exercised by an authority other than the
legislature in exercise of the powers delegated or conferred on them by the legislature
itself. This is also known as "subordinate legislation", because the powers of the
authority which makes it are limited by the statute which conferred the power and
consequently, it is valid only insofar as it keeps within those limits.

In its second connotation, "delegated legislation" means and includes all rules,
regulations, bye-laws, orders, etc. Thus, the object of the Minimum Wages Act, 1948 is
"to provide for fixing minimum wages in certain employments". The Act applies to
employments mentioned in the Schedule. But the Central Government (executive) is
empowered to add any other employment to the Schedule if, "in the opinion of the
Government", the Act should apply.

The Essential Commodities Act, 1955 enumerates certain commodities as "essential

commodities" under the Act. But the list given in the statute is not exhaustive and the
Central Government is empowered to declare any other commodity as "essential
commodity" and to apply the provisions of the Act to it.

The Payment of Bonus Act, 1965 empowers the Central Government to exempt any
establishment or a class of establishments from the operation of the act, having regard
to the financial position and other relevant considerations.

The Defense of India Act, 1962 authorized the Central Government to make "such rules
as appear to it to be necessary or expedient" for the defense of India and maintenance
of public order and safety.

The Income Tax Act, 1961 empowers the Board to make rules "for carrying out the
purposes of the Act and for the ascertainment and determination of any class of
income".

The statute enacted by the legislature conferring the legislative power upon the
executive is known as the "parent Act" or "primary law", and the rules, regulations, bye-
laws, orders, etc. made by the executive in pursuance of the legislative powers
conferred by the legislature are known as subordinate laws or subsidiary laws or the
"child legislation".

History of Delegated Legislation in India

The historical backdrop of the delegation of power can be followed from the Charter
Act of 1833 when the East India Company was recapturing political impact in India. The
Charter Act of 1833 vested the administrative powers only in the hands of the Governor-
General-in Council, which was an official body. He was able 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 Ac, 1935
was passed which contained a serious plan of delegation. The report of the Committee
of Ministers’ Powers was submitted and affirmed which completely settled the case for
assignment of forces and appointment of enactment that was viewed as inescapable in
India. However, our Constitution depended on the separation of power; a total partition
of forces was unrealistic henceforth it kept up the holiness of the tenet in the cutting
edge sense. Then again there are a few arrangements where the official had been
conceded with the administrative forces. For instance, the administrative forces of the
President under the Indian Constitution are prominent. The problem of the delegation of
legislation in India originated under British rule when the controversy on the problem in
the West was in full swing. In independent India, the conflict of settling the problem of
the delegation of legislative power was prima facie to a conflict between the English and
American type of solution.

The Constitution of India comprises more than four hundred Articles and it had not been
surprising if the Constitution makers included some solution for it. But why these
provisions were incorporated in the Constitution? This is because the politicians in the
Constituent Assembly tended to multiply legal formulations. These issues were of minor
importance 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 case of Queen v. Burah, nature and extent of
Legislature power and the feasibility of its delegation was considered by the Privy
Council.

Delegated Legislation: Is it a Necessary Evil?

Orthodox view did not favour delegation of legislative power in favour of the executive. It
was considered to be an "evil", albeit a necessary evil. Wade in his well-known work,
stated:

Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but

inevitable infringement of the separation of powers. But in reality it is no more difficult to
justify it in theory than it is possible to do without it in practice. There is only a hazy borderline
between legislation and administration, and the assumption that they are two fundamentally
different forms of power are misleading. There are some obvious general differences. But the
idea that a clean division can be made (as it can be more readily in the case of the judicial
powers) is a legacy from an older era of political theory. It is easy to see that legislative power is
the power to lay down the law for people in general, whereas administrative power is the
power to lay down the law for them, or apply the law to them, in some particular situation.

For several reasons, however, there was a tremendous increase in delegated

legislation. Today, it is neither possible nor advisable to revive the old theory that it is
only the legislature that can perform legislative functions. The fact is that delegated
legislation has come to stay. A study of administrative law will not be complete if one
ignores this ground reality. It is better that we accept the doctrine of delegation of power
not only as a "necessary evil" ("Red light theory") but as a "requirement of the day”
("Green light theory').

Reasons for Growth of Delegated Legislation

Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic State. The traditional theory of “laissez faire" has been given up by
every State and the old "police state" has now become a "welfare state". Because of
this radical change in the philosophy as to the role to be played by the State, its
functions have increased. Consequently, delegated legislation has become essential
and inevitable.

As the American lawyer and statesman Root remarks, “The old doctrine prohibiting the
delegation of legislative powers has virtually retired from the field and given up the
fight". According to the Committee on Ministers' Powers, it would be impossible to produce
the amount and the kind of legislation, which Parliament desires to pass and which the people
of this country are supposed to want, if it becomes necessary to insert in the acts of Parliament
themselves any considerable portion of what is now left to delegated legislation.

In the opinion of the committee the factors responsible for the growth of delegated
legislation as stated below.

a) Pressure upon parliamentary time

As a result of the expanding horizons of State activity, the bulk of legisla fion is so great
that it is not possible for the legislature to devote sufficient time to discuss all the
matters in detail. Therefore, legislature formulates the general policy- the skeleton--and
empowers the executive to fill in the details - "Thus giving flesh and blood to the
skeleton so that it may live" by issuing necessary rules, regulations, bye-laws, etc. 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". If the 525 parliamentarians are to focus on every
minuscule legislative detail leaving nothing to subordinate agencies the annual output
may be both unsatisfactory and negligible.

The Committee on Ministers' Powers has rightly observed: The truth is, that if
Parliament were not willing to delegate law-making power, Parliament would be unable
to pass the kind and quality of legislation which modern public opinion requires.

b) Technicality
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 must be required. Members of
parliament may be the best politicians but they are not experts to deal with the highly
technical matters which are required to be handled by experts. Here the legislative
power may be conferred on experts to deal with technical problems, for example gas,
atomic energy, drugs, electricity etc.

c) Flexibility

At the time of passing a legislative enactment, it is impossible to foresee all the

contingencies, and some provision is required to be made for these unforeseen
situations demanding exigent action. A legislative amendment is a slow and
cumbersome process, but by the device of delegated legislation, the executive can
meet the situation expeditiously, e.g. bank-rate, police regulations, export and import,
foreign exchange, etc. For that purpose, in many statutes, a "removal of difficulty"
clause is found empowering the administration to overcome difficulties by exercising
delegated power. This Henry VIII clause confers very wide powers on the government.

d) Experiment

The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience, e.g. in road traffic matters,
an experiment may be conducted and in the light of its application necessary changes
could be made.

e) Emergency
In times of emergency, quick action is required. The legislative process is not equipped
to provide for an urgent solution to meet the situation. Delegated legislation is the only
convenient indeed the only possible-remedy. Therefore, in times of war and other
national emergencies, such as aggression, break down of law and order, strike, bandh,
etc., the executive is vested with special and extremely wide powers to deal with the
situation. There was substantial growth of delegated legislation during the two World
Wars. Similarly, in the event of epidemics, floods, economic depression, inflation, etc.,
immediate remedial actions are necessary that may not be possible by lengthy
legislative process. In such situations delegated legislation is the only convenient way to
enact laws.

f) Complexity of modern administration

The complexity of modern administration and the expansion of the functions of the state
to the economic and social sphere have rendered it necessary to resort to new forms of
legislation and to give wide powers to various authorities on suitable occasions. By
resorting to the traditional legislative process, the entire object may be frustrated by
vested interests and the goal of control and regulation over private trade and business
may not be achieved at all.

However one might deplore the New Despotism' of the executive, the very complexity of the
modern society and the demand it makes on its Government have set in motion forces which
have made it absolutely necessary for the legislatures to entrust more and more powers to the
Executive.

The practice of empowering the executive to make subordinate legislation within the
prescribed sphere has evolved out of practical necessity and pragmatic needs of the
modern welfare State.

There has, therefore, been rapid growth of delegated legislation in all countries and it
has become indispensable in the modern administrative era.

Classification of Delegated Legislation

Delegated legislation may take several forms. They may be normal or of exceptional
type; they may be usual or unusual; positive or negative; skeleton or Henry VIII clauses.
Broadly speaking, delegated legislation may be classified on the following principles.

a) Title-based classification

Delegated legislation may be in the forms of rules, regulations, bye-laws, notifications,

schemes, orders, ordinances, directions, etc.

b) Discretion-based classification

Discretion may be conferred on the executive to bring the Act into operation on
fulfillment of certain conditions. Such legislation is called "conditional" or "contingent"
legislation.

c) Purpose-based classification

A classification may be based on nature and extent of power conferred and purposes
for which such power can be exercised. Thus, executive can be empowered to fix an
appointed day for the Act to come into force; to supply details; to extend the provisions
of the Act to other areas, to Include or to exclude operation of the Act to certain
territories, persons, industries, commodities; and to suspend or to modify the provisions
se the Act, etc.

d) Authority-based classification

A statute may also empower the executive to delegate further powers conferred on it to
its subordinate authority. This is known as "sub-delegation".

Delegated Legislation in England

In England, Parliament is sovereign. In principle, it is only Parliament which can enact
laws. But as observed by C.K. Allen, "Nothing is more striking in the legal and social
history of the 19th century in England than the development of subordinate legislation."
1933 Maitland also said:

Year by year the subordinate Government of England is becoming more and more
important. The new movement set in with the Reform Bill of 1832: it has gone far
already and assuredly it will go farther. We are becoming a much more governed
nation, governed by all manner of councils and boards and officers, central and local,
high and low, exercising the powers which have been committed to them by modern
statutes.

The reasons for growth of delegated legislation in other countries were equally
responsible for the development of delegated legislation in England. Parliament had no
time to deal with various matters in detail. Complexity, technicality, emergency and
expediency compelled Parliament to delegate its "legislative office" to the government.

Traditionally, administrative legislation was looked upon as an evil, but gradually it came
to be regarded as justifiable in principle. It was realized that legislation and
administration were not two fundamentally different forms of power. Tests formulated to
distinguish legislative and administrative functions proved insufficient and inappropriate.

But at the same time, administrative law had not been accepted as a developed and
recognized branch of law. Taylor, therefore, observed:

Until August 1914 a sensible law-abiding Englishman could pass through life and hardly notice
the existence of the State, beyond the post office and the policeman.

It was during the two World Wars, that there was a tremendous increase in delegated
legislation. Massive inroads were made into comparatively personal matters of citizens,
e.g. housing, education, employment, pension, health, planning, production,
preservation and distribution of essential commodities, social security, etc. In the 20th
century, Parliament was obliged to delegate extensive law-making power in favor of the
government. A hue and cry was raised against the growth of such delegated legislation.
The matter was, therefore, referred to the Committee on Ministers' Powers
(Donoughmore Committee) in 1929. The Committee submitted its report in 1932. It
observed:

We doubt whether Parliament itself has fully realized how extensive the practice of delegated
legislation has become, or the extent to which it has surrendered its own functions in the
process, or how easily the practice might be abused.

The Committee rightly stated:

The system of delegated legislation is both legitimate by permissible and constitutionally
desirable for certain purposes, within certain limits, and under certain safeguards."

Delegated Legislation in the US

a) In theory

Under the US Constitution, delegated legislation is not accepted in theory because of

two doctrines:

i. Separation of Powers

This doctrine is recognized by the US Constitution and by Article I, legislative power is

expressly conferred on the Congress. Article II states that the executive power shall be
vested in a President and under Article III; the judiciary has power to interpret the
Constitution and declare any statute unconstitutional if it does not conform to the
provisions of the Constitution.

In the leading case of Field v. Clark, the US Supreme Court observed:

That Congress cannot delegate legislative power to the President is a principle

universally recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution.

In Youngstown Sheet & Tube Co. v. Sawyer, Jackson J proclaimed, "With all its defects,
delays and inconveniences men have discovered no techniques for long preserving free
government except that the executive be under the law, and the law be made by
parliamentary deliberations."

ii. Delegatus non potest delegare (a delegate cannot further delegate)

According to this doctrine, a delegate cannot further delegate his power. As the
Congress gets power from the people and is a delegate of the people in that sense, it
cannot further delegate its legislative power to the executive or to any other agency. A
power conferred upon an agent because of his fitness and the confidence reposed in
him cannot be delegated by him to another is a general and admitted rule. Legislatures
stand in this relation to the people whom they represent. Hence, it is a cardinal principle
of representative government, that the legislature cannot delegate the power to make
laws to any other body or authority."

Illustration-
1. An auditor who has been appointed to audit the accounts of a company cannot
delegate the task to another unless expressly allowed to do so. If express
authorization has not been granted the auditor will have acted ultra vires.

2. An attorney given legal authority in a power of attorney cannot, of their own volition,
delegate the exercise of that authority without the consent of the person who granted
the power of attorney.

Case laws-

In Democratic Bar Association vs High Court of Judicature, the Allahabad High Court
held that "the maxim delegatus non potest delegare does not enunciate a rule that
knows no exception: it is a rule of construction to the effect that "a discretion conferred
by a statute is prima facie intended to be exercised by the authority on which the statute
has conferred it and by no other authority, but this intention maybe negative by any
contrary indications found in the language, scope or object of the statute

In Ultra Tech Cement Limited vs. The Union of India and Ors, the Kerala High Court
held that "Sub-delegation implies a further delegation of the same power, which was
originally delegated by the legislature. The governing principle is that legislative powers
must be exercised by the delegatee himself and by none else. A delegatee connot
further delegate his power unless the parent low permits it to do so. In the above
context, the doctrine delegatus non potest delegare, that is, a delegatee cannot further
delegate, comes into play. Thus, if a low confers power on the Central Government to
make rules, it cannot further delegate that power to any other officer, unless the parent
law itself gives authority to the Government to that effect."

In The State vs Kunja Behari Chandra And Ors, the Patna High Court while referring to
the above maxim held that "Because of the legislative power of the government is
vested exclusively in the legislature, the general rule enunciated by Cooley is that the
legislature cannot surrender or abdicate such power and any attempt to do so will be
unconstitutional and void. There is also the well known maxim delegatus non potest
delegare, which means that the power to make laws cannot be delegated by the
legislature to any other authority."

b) In Practice
Though, in theory, it was not possible for the Congress to delegate its legislative power
to the executive, strict adherence thereto was not practicable. Governmental functions
had increased and it was impossible for the Congress to enact all the statutes with all
particulars. The Supreme Court could not shut its eyes to this reality and tried to create
“a balance between the two conflicting forces: 1) doctrine of powers barring delegation,
and 2) inevitability due to the exigencies of the modern Government”.

Delegated Legislation in India

The discussion can be divided into two stages:

I. Pre-Constitution period

2. Post-Constitution period

Pre-Constitution period

R. v. Burah is considered to be the leading authority on the subject. By Act XXII of 1869,
the area of Garro Hills was removed from the jurisdiction of civil and criminal courts, and
by Section 9, the Lieutenant Governor was empowered to extend mutatis mutandis all
or any of the provisions of the Act applicable to Khasi, Jaintia and Naga Hills in the
Garro Hills and to fix the date of such application. By a notification dated I4 October
1871, the Lieutenant Governor extended all the provisions of the Act to the District of
Khasi and Jaintia Hills. The appellants, who were convicted of murder and sentenced to
death, challenged the notification.

The High Court of Calcutta, by a majority, upheld the contention of the appellants and
held that Section 9 of the Act was ultra vires the power of the Indian legislature.
According to the court, the Indian legislature was a delegate of the Imperial Parliament
and, therefore, further delegation (sub-delegation) was not permissible."

On appeal, the Privy Council reversed the decision of the Calcutta High Court. Ir held
that the Indian legislature was not an agent or delegate of the Imperial Parliament and it
had plenary powers of legislation as those of the imperial Parliament itself. It agreed
that the Governor General in Council could not, by legislation, create a new legislative
power in India not created or authorised by the Council's Act. But in fact it was not done.
It was only a case of conditional legislation, as the Governor was not authorised to pass
new laws, but merely to extend the provisions of the Act enacted by the competent
legislature upon fulfilment of certain conditions.

In Jatindra Nath Gupta v. Province of Bihar (Jatindra Nath Gupta), the Bihar
Maintenance of Public Order Act, 1948 was to remain in force for one year. However,
the power was conferred on the Provincial Government to extend the operation of the
Act for a further period of one year. By a majority, the Federal Court held that the power
to extend the operation of the Act beyond the period of one year was a legislative act,
and therefore, could not be delegated. However, in a dissenting judgment, Fazl Ali
upheld the provision as the extension of the Act, for a further period of one year could
not amount to its re-enactment. It merely amounted to a continuance of the Act for
which the maximum period was contemplated by the legislature itself.

It is submitted that the minority view was correct and subsequently in Sardar Inder
Singh v. State of Rajasthan, the Supreme Court upheld a similar provision.

Post-Constitution period

Delhi Laws Act, 1912, re was the first leading case decided by the Supreme Court on
delegated legislation after the Constitution came into force. A reference was made to
the Supreme Court by the President of India under Article 143 of the Constitution in the
following circumstances:

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 restrictions 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 Act) which might be in force in the
Part C State.

The Supreme Court was called upon to decide the legality of the aforesaid provision. All
the seven judges who heard the reference gave their separate opinions "exhibiting a
cleavage of judicial opinion" on the question of limits to which the legislature in India
could be permitted to delegate its legislative power. The majority held the provision valid
subject to two limitations:

I. The executive cannot be authorized to repeal a law in force and thus, the provision
which empowered the Central Government to repealing a law already in force in the
Part C State was bad.

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.

Types of Delegated Legislation

Delegated legislation means giving power or authority to someone lower than his rank
to make laws. So there can be many ways in which this excess of power can be given
to subsidiary rank people or an Executive. These types are as follows:

Orders in Councils: This type of Delegated legislation can be given by Queens or the
Privy Councils. This Delegated legislation allows the Parliament to make laws without
going through the Parliamentary proceedings. Today, its main use is that it gives legal
effect to European directives. When the order issued under the privilege of the Queen
or the Crown such order is subject to review by the courts, but order issued by the
Parliament may or may not be subject to review by the courts as it is made within the
prescribed limits Act of Parliament. In both the case the question can arises that if this
legislation is the same as the Executive legislative. The answer to this question is yes, it
is equivalent to executive legislative. There is no major difference between these orders
and Executive legislative almost they both are same. The meeting of Privy Council in
such case could simply means a meeting of some Privy Councilors which includes three
or four ministers, President, Councils and Clerk of Privy Councils. This shows that this
order is issued by the Executive who exercises powers of the Council.

Rules of the Supreme Court and the County Courts: The Parliament by statutes
bestows some persons or authority with the power to make laws for a specific purpose.
But it is different in England where a Court has been given wide power to make laws.
This task of making law has been entrusted upon the Rules Committee of the Supreme
Court and the County Courts. Entrusting Judicial branch to control its Procedural law to
a great extent has an advantage as it is given to that authority who knows better about it
than any person. Procedure and cost that are drawn by Rules Committee of County
Courts deals by the County Courts itself. Such rules are not subject to the control of
Parliament. When these rules used to come into force? It comes into force when the
Lord Chancellors with the consent of the Rules Committee of the Supreme Court
confirms it.

Departmental or Executive instructions or regulations: When the power of

legislature directly delegated to the administration such as a Board, Ministers or a
Committee, then the exercise of that given power results in delegation through
Departmental or Executional Instructions or Regulations. Sometimes very wide powers
are given to the administration or the delegated person. But this wide delegation of
legislation is not accepted by the judiciary as it is difficult for them to control
administrative action. There is extensive use of this delegated legislation in today’s
world. Nowadays only the broad line of making legislation is in the hands of Parliament
and the rest power is given to the Administrator.
Delegated legislation by laws: It can be given in two ways, firstly, it can be given by
laws of autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a
local authority.

By-laws of autonomous bodies: These autonomous bodies have got the power to
pass by-laws on matters affecting them and other people in that locality or people
residing in a particular area. For example, they can make laws as public utility
authorities for light, water, etc. Usually, these authorities are given the power to make
rules for regulating their working. Such by-laws are subject to judicial review. It can be
reviewed to check that it must not be ultra vires the Parent Statute. These autonomous
bodies have the power to frame rules for themselves. One more example of this
autonomous body is an association of Employers. The rules of these association are
termed as voluntary but this is not so in reality. It is fictitious as in its effect these rules
are binding upon members like other rules such as rules of a professional association,
industrial organization, etc.

By-laws of the local authority: Parliament has the power to make new local bodies or
it can alter the existing body. It empowers such body with powers to make by-laws for
themselves for specific purposes. These authority exercises excess power for public
health, safety, and for good rule and governance. These by-laws incur a penalty on its
breach.
Advantages of Delegated legislation
There are many advantages of delegated legislation as it is essential for a democratic
country to flourish or make laws according to its public. These advantages are as
follows:

Reduce the workload of Parliament: The Parliament has to pass several legislation
within a short span of its life. It has to take such type of intensive work that it can hardly
enact the law provisions in detail. If the Parliament devotes its time in laying down minor
and subsidiary detail of each and every legislation by making all the rules required for
that legislation then it will take too much time and in that time it can only deal with a
small amount of Act in detail.

Technical Expertise: Today’s world has become very technical and complicated by the
introduction of modern means and advancement in technology. So it is necessary for
the members of parliament to know each and every field but one cannot be the master
of all fields. Therefore, it is difficult for the members of Parliament to have all knowledge
needed for making laws in various fields like on controlling technology, ensuring
environmental safety, dealing with various industrial problems which need basic
knowledge.

Decentralized decision making: The local councils are more suited to make laws for
their constituencies as they better know the condition of their constituencies than any
other. These local bodies can make better laws for their area that a Parliament cannot
do so because they knew their locals need what they want? And it is very essential to
know a person for whom we are making laws.

Emergencies: Delegated Legislation allows for rapid action in case of an emergency

but Parliament takes too much time in taking any decision. It has to call for a session
then the Parliamentarian discusses the emergency topic. And after that, if they all
conclude then only that act would have passed. In some cases, the Parliament has not
enough time to accurately make a piece of legislation and a quick and safety legislation
is required for the safety of a nation.
Judicial Control over Delegated Legislation
The delegated legislation can be challenged in India in the courts of law as being
unconstitutional, excessive and arbitrary. It can be controlled by the Judiciary on two
grounds i.e., firstly, it should be on the ground of substantial ultra vires and secondly, it
should be on the ground of procedural ultra vires. The criteria on which the law made by
the executive can be considered as void and null by the court is that it should not be
considered inconsistent by the constitution or ultra vires the parent act from which it has
got the power of making law. The power of examining the delegated legislation in India
has been given to the Supreme Court and the High Court and they play an active role in
controlling the delegated legislation. Judicial control over delegated legislation is
exercised at the following two levels: A] Challenging the delegation as unconstitutional
& B] Improperly exercise of statutory power.

No delegated legislation can survive clashing with the provisions granting Fundamental
Rights. If any Acts violate the fundamental rights then the rules, regulations, and by-
laws framed under it cannot survive. In India as well as in America the judicial control
over the delegated legislation is based on the doctrine of ultra vires. Also, there are
various methods through which judiciary in America exercises control over delegated
legislation.

The two main approaches taken by the judiciary in America for justifying the delegation
of legislative power to the executive are:

1. Filling up the details approach.

2. Intelligible principle approach.

In the first approach, the Congress should lay down the standard policy for the guidance
of executives and the executives have to fill the further details and carry out the policy of
legislation according to the standard laid down by the Congress.

In the second approach, the court will review the delegated legislation if ultra vires the
enabling statutes or it is not in accordance with the provisions mentioned in enabling
statutes
Criticism on Delegated Legislation

1. Delegated legislation results in overlapping of functioning as the delegated

authorities get work to amend the legislation that is the function of the legislators.

2. It has been a matter of question that if the Legislature control has come down after
the arrival of the delegated legislation.

3. Unelected people cannot make much delegated legislation as it would be against the
spirit of democracy

4. After getting too much power from the Legislature, the Executive has encroached
upon the domain of legislature by making rules and regulations.

5. The enactment subject that was appointed to less Parliamentary scrutiny than
essential enactment. Parliament, along these lines, has an absence of authority over
appointed enactment, and this can prompt irregularities in laws. Appointed
enactment, in this way, can possibly be utilized in manners which Parliament had not
foreseen when it was given the power through the Act of Parliament.

6. Delegated legislation makes laws without much discussion. So, it may or may not be
better for the public.

7. Designated legislation by and large experiences an absence of exposure. Since the

law made by a statutory authority not informed to general society. Then again, the
laws of the Parliament are generally broadcasted. The purpose of the absence of
exposure is the enormous degree of enactment that is being assigned. There has
likewise been concern communicated that an excess of law is made through
appointed enactment.

8. It can possibly be misused for political gain. The executive makes law according to
what the political parties. Hence, it results in the misuse of the legislation made by
the Executive by the ruling party.

9. Executives become too powerful as it already has the power of executing any laws
and legislation and now the Legislature is delegating its legislative power to the
Executive. So, both the power are in the hands of the executives now he can use
this power in whatever way he wants to use it.
Cases on Delegated Legislation
Panama Refining Co. v. Rayan

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 violation 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 vested in the President under section 9(c) of the Act.
The Security of Interior issued a regulation to accomplish the President’s order(s). The
Section mentioned above was challenged on the ground that it was an unconstitutional
delegation of legislative power by the Congress.

Judgment: It was held by the 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 two conditions. Firstly, the Statute laid down these
policies. Secondly, one has to establish the standards and give the administration the
power of making the subordinate rule within the given limit.

Sikkim v. Surendra Sharma

Facts: After Sikkim became the State of the Union Of India, the Directorate of Survey
and Settlement of Government of Sikkim created and advertised for certain temporary
posts. Like other people, the respondent has also applied for the post. They got
selected and were appointed in different capacities. After the survey work got completed
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
decision 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 solely 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 created under the power which is granted under
sub-clause (k) of the Article 371F constituted subordinate legislation. This article was
added to the Constitution through the 36th Constitutional Amendment
Kruse v. Johnson

Facts: In this case, under the authority of the Local Government Act 1888, the Kent
County Council made a by-law. This law states that nobody could play music or sing a
song within 50 yards of dwelling house in public place or highway after being requested
to stop by a constable. The claimant was singing a hymn within 50 yards of the dwelling
house and had refused to stop after the constable had told him to do so. He was given a
penalty. He sought for judicial review to declare that the by-law was void.

Judgment: Lord Russell CJ, giving the courts leading judgment, held the by-law became
valid on the ground that it becomes no longer unreasonable, due to the fact that it does
not have a discriminatory impact on the population.

Chintaman Rao Case

Facts: Section 3 and 4 of the Central Province and Berar Regulation of Manufacture of
Beedis Act, 1948 grants power to the Deputy Commissioner to fix the period of
agriculture season with respect to a certain village where the Act applies. The Deputy
Commissioner has the power to prohibit the manufacturing of bidis and no person is
authorized to manufacture bidis. On 13th June 1950, an order was issued via the
Deputy Commissioner of Sagar prohibiting the people in certain villages to manufacture
bidis. When the case is dealt by the Hon’ble Supreme Court, the period cited within the
order expired and another order covering the agricultural period from 8th October 1950
to 18th November 1950 was issued and the same order was questioned in the present
case. Does the question arise whether the impugned Act is falling within the saving
clause or excess of its provisions?

Judgment: It has been held in this case that prohibition of making bidis in the agriculture
season by the Deputy Commissioner is violative of Article 19 1(g) of the Indian
Constitution.
Conclusion
Delegated or subordinate legislation means rules of law made under the skilled person
of the Act of Parliament. In spite of the fact that lawmaking is within the capacity of the
lawmaking body, it might, by a resolution, delegate its capacity to different bodies or
people. The resolution which delegates such power is known as the Enabling Act. By
Enabling Act the council sets out the wide rules and nitty-gritty principles are instituted
by the delegated authority.

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. If you want to make certain that the
power of delegated law in the arms of the government is not misuse, it is vital to adopt
powerful modes of control as applicable in the USA which India has now not integrated
yet.
Bibliography & Webliography
C.K. Takwani, lectures on Administrative law, EBC Publication, Seventh edition

https://blog.ipleaders.in/delegated-legislation-in-india/