Module IX – Subordinate Legislation and Mimansa Rules

What is Delegated Legislation?

Delegated legislation, also known as subordinate or secondary legislation, refers to laws

made by individuals or bodies authorised by the legislature to create detailed regulations
under a specific Act of Parliament. Black’s law dictionary defines the doctrine of delegated
legislation as the Principle (in view of the Separation of Powers Concept) restricting the
legislature’s capacity to move its authoritative capacity to another Governmental Branch,
particularly Executive branch.

Constitutionality of Delegated Legislation in India

Delegated Legislation’s position and constitutionality in India can be illustrated through

several court cases, which can be categorised into two phases:

- The period before independence (pre-independence)

- The period after independence (also referred to as post-independence)

Pre-Independence Era

Prior to India gaining independence, the Government of India Act, 1935, governed the legal
system. Under this Act, legislative powers were delegated to the executive branch, enabling
them to create laws in specific domains.

In the case of Queen v. Burah 1878, the Privy Council authorised conditional legislation.

- This meant that the power of the legislature was transferred to the executive;
- In particular, the administration of civil and criminal justice in a territory could be
entrusted to officials selected by the Lieutenant-Governor on a regular basis.

In more simpler terms, in Queen v. Burah, the Privy Council authorised transferring
legislative power to the executive for the administration of justice. In King v. Banwari Lal
Sharma, they upheld the Governor-General’s power to establish special courts, as it was seen
as an exceptional legislative authority granted to the local administrative body.

Post-Independence Era

After India gained independence and adopted its Constitution in 1950, the framework for
delegated legislation underwent significant changes. The Constitution of India explicitly
recognized and allowed for delegated legislation. It empowered the legislature to delegate its
legislative powers to other entities, with certain limitations and safeguards.

The constitutionality of delegated legislation in the post-independence era has been affirmed
through several landmark court cases. These cases have established the principles and
boundaries within which delegated legislation operates.
 - In the case of Raj Narain Singh v. Chairman, Patna Administration Committee
(1954), the SCI upheld the delegation of power from the legislative body to the
executive body. This case specifically empowered the local government to extend
provisions of the Bengal Municipality Act.

The Indian Constitution does not expressly prohibit the delegation of legislative power by the
legislature. However, there are two constitutional limitations on legislative delegation, as
established in the case of Re Delhi Laws Act (1951):

- The legislature cannot delegate its essential legislative functions. This means that the
core and fundamental aspects of lawmaking must remain with the legislature itself
and cannot be transferred to another authority.
- The power conferred on a subordinate authority or executive body should not suffer
from excessive delegation. This means that the delegation of power should be limited
and must be within reasonable bounds, ensuring that the delegated authority does not
exceed the scope or purpose intended by the legislature.

In simpler terms, the SC, in the raj Narain case, allowed the legislature to delegate power to
the executive body. However, the Constitution imposes two limitations on this delegation: the
essential legislative functions must remain with the legislature, and the delegated power
should not be excessively broad or unlimited.

Types of Delegated Legislation

Delegated legislation comes in various forms, each characterized by its unique elements and
purposes. Here are the three main types of delegated legislation:

Orders in Council: These are issued by the Queen and Privy Council, often used for
situations of national importance.
Statutory instruments: this is the most common form of delegated legislation, typically
issued by government ministers.
By-Laws: these are laws created by local authorities or certain public corporations and apply
to specific geographical areas or industries.

Supreme Court’s Opinion on Delegated Legislation

The SCI, on various occasions, has upheld the constitutionality of delegated legislation,
recognizing its necessity in the modern administrative framework. The Court has held that as
long as the legislative policy and guidelines are provided in the enabling Act; the delegation
of subsidiary or ancillary powers is valid.

Conditional Legislation

Conditional Legislation refers to the idea that the application or operation of a statute is
contingent upon certain conditions being met. In the context of interpreting statutes, it means
that the provisions of a law come into effect or are triggered only if specific circumstances or
prerequisites are present. When dealing with conditional legislation, courts must determine
whether the specific conditions are satisfied before applying the law.
 Distinction between Delegated Legislation and Conditional Legislation

Point of Distinction Delegated Legislation Conditional Legislation

Origin Delegated legislation is
created by an entity other
than the primary legislative
body, as authorized by the
primary legislation.
Conditional Legislation
originates from the primary
legislative body

Authority Delegated legislation is The primary legislative

created by an entity to body has the authority to
whom legislative powers create and enact
have been delegated conditional legislation

Scope Delegated legislation, deals Conditional legislation sets

with the specific details
and practicalities of
implementing a law.
out the broad principles
and conditions, leaving the
detailed implementation to
others if specified
conditions are met.

Flexibility Delegated legislation Conditional legislation

allows for flexibility in
implementation details
without the need for
frequent amendments to
primary legislation.
provides flexibility by
allowing changes in legal
statues based on specified
conditions.

Delegated Legislation and Judicial Review Procedures and Powers under

General Clauses Act, 1894.

Delegated legislation refers to the process by which legislative powers are transferred from
the legislature to another person or authority. This is often done through the use of enabling
or parent legislation, which grants the authority to make detailed regulations, rules, or orders
on specific matters. Delegated legislation allows for more flexible and efficient lawmaking,
as it enables experts or administrative bodies to address detailed and technical issues.

Judicial review, on the other hand, is a process by which the courts review the legality,
constitutionality, and procedural fairness of administrative or executive actions, including
those involving delegated legislation. Judicial review is a crucial mechanism to ensure that
the powers granted by the legislature are exercised within the limits set by law and the
constitution.
The General Clauses Act, 1894, in many jurisdictions, provides a framework for the
interpretation of statutes and delegated legislation. It lays down general rules for the
construction of statutes, including provisions related to the commencement, repeal, and
application of laws. The Act contains clauses that are commonly used in statutes, and it
provides default rules to be followed when a statute does not explicitly address a particular
issue.
Read Sections 20-24 (General Clauses Act 1897).

In the context of judicial review, the General Clauses Act may not directly confer powers of
review on the judiciary, but it can be a useful tool for courts when interpreting statues and
delegated legislation. Courts may refer to the Act to resolve ambiguities, understand the
intent of the legislature, and apply default rules when the legislation is silent on a particular
issue.

Mimansa Rules of Interpretation

The Mimansa Rules of Interpretation were our traditional principles of interpretation laid
down by Jaimini, whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc.
These Mimansa Principles were regularly used by our great jurists like Vijnaneshwara
(author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc., whenever
they found any conflict between the various Smritis or any ambiguity, incognuity, or casus
omissus therein.

There is no reason why we cannot use these principles on appropriate occasions. However, it
is a matter of deep regret that these principles have rarely been used in our law Courts. It is
nowhere mentioned in our Constitution or any other law that only Maxwell’s Principles of
Interpretation can be used by the Court. We can use any system of interpretation which helps
us resolve a difficulty. In certain situations, Maxwell’s principles would be more appropriate,
while in other situations the Mimansa principles may be more suitable. The Mimansa
principles were created for religious purpose, but as they were so rational and logical that
they subsequently began to be used in law, grammar, logic, philosophy, etc. i.e., they became
of universal application.

In the Mimansa system, there are three ways of dealing with conflicts –

1. Samanjasya Principle (Principle of Harmonious Construction) – has been laid down by

Jaimini in Chapter II, Sutra 9 which states, “The inconsistencies asserted are not actually
found. The conflicts consist in difference of application. The real intention is not affected by
application. Therefore, there is consistency.”

Jitmutvahana (author of Dayabhaga) one of our greatest jurist, found that there were two
apparently conflicting texts of Manu and Yagnavalkya. The first stated “a son born after a
division shall alone take the paternal wealth.” The second text stated, “sons, with whom the
father has made a partition, should give a share to the son born after the distribution.”
Jitmutvahana, utilizing the Samanjasya principle of Mimansa, reconciled these two texts by
holding that the former applies to the case of property which is the self-acquired property of
the father, and the latter applies to the property descended from the grand-father.
2. Vikalpa Principle (Principal of preferring one out of two or more) – applies in a
situation of conflict where it is impossible to reconcile the two conflicting texts despite all
efforts. Vikalpa principle says that whichever law is more in consonance with reason and
justice should be preferred. However, conflict should not be readily assumed and every effort
should be made to reconcile conflicting texts. It is only when all efforts of reconciliation fail
that the Vikalpa principle is to be resorted to.

3. Badha Principle (Principle of barring a thing owing to inconsistency) – this principle

applies in a conflict where there are two conflicting irreconcilable texts but one overrides the
other because of its greater force (similar to the doctrine of ultra vires). The principle of
Badha is discussed by Jaimini in the tenth chapter of his work. Badha primarily means
barring a thing owing to inconsistency.
Applicability of Mimangsa Rules of Interpretation

The application of Mimangsa Rules of Interpretation although is primarily focused with the
interpretation of many Hindu Scriptures like Vedas, Smrities, Shrutis, etc., its application in
modern times cannot be ignored.

There are two reasons for the application of Mimangsa principles to law:

- They deal with the Brahmana portions of the Shruti, i.e., the portion which laid down
injunctions, and the law, too, being largely in the form of injunctions was attracted to
them;
- Mimangsa is a practical subject, and the law, too, being practical was inclined to
incorporate them. The great commentators like Vijaneshwara (author of Mitakshara),
Jitmutvahana (author of the Dayabhaga), Nanda Pandit (author of Dattak Mimangsa),
Vachaspati, Neelkanth, etc., were all profound scholar of Mimangsa, and they
regularly used the Mimangsa principles when confronted with any difficulty regarding
interpretation of the Smrities (which contained the law in those times)

Talking about the application of Mimangsa Rules of Interpretation in the interpretation of the
statutes and laws of Nepal, it is not found so much used. But in the context of India, the use
of Mimangsa Rules of Interpretation has been used for exploring the meaning of the legal
provisions. The SC applied one of these principles after quoting a ‘Shloka’. In this regard, the
SCI in the case of UP Bhoodan Yagna Samiti, UP v. Braj Kishore, observed: “In this country,
we have a heritage of rich literature, it is interesting to note that literature of interpretation
also is very well known. The principles of interpretation have been enunciated in various
Shlokas which have been known for hundreds of years.” Sir John Edge, the then CJ of
Allahabad HC, has referred to Mimangsa principle in Beni Prasad v Hardai Bibi. Similarly,
Gunapradhan Axiom of the Mimangsa Principle was applied for interpretation of S/409 of
UP Sales Tax Act in Amit Plastic Industry, Ghaziabad v. Divisional Level Committee,
Meerut. In the case of Tribhuwan Mishra v. Dist. Inspector of Schools, Azamgarh
‘Samajasya Axiom’ was applied.