General Principles on

Delegated legislation
Module 4, 5 and 6
Topics to be covered
• Meaning and Definition of Delegated Legislation
• Reasons and Need for Delegated Legislation
• Evolution of Delegated Legislation in India
• Separation of Powers
• Delegatus non Potest Delegare
Cases
• Queen v. Burah (1878)
• King Emperor v Benoari Lal(1945)
• Jatindra nath Gupta v. province of Bihar(1949)
• Re Delhi Laws Act, 1912
Meaning and Definition of Delegated Legislation

• According to M.P. Jain, “ the term is used in two different senses:

• to exercise the legislative power by subordinate agents, or
• the subsidiary rules themselves which are made by the subordinate
authority in pursuance of the powers conferred on it by the
legislature”.
• Delegated legislation is generally a type of law made by the executive
authority as per the powers conferred to them by the primary authority in
order to execute, implement and administer the requirements of the
primary authority.
• It can be said that it is the law made by any person or authority under the
power of parliament. It is also known as subordinate legislation in
administrative law.
• It allows the bodies beneath the primary authority or legislature to make
laws according to the requirement.
• Through an act of Parliament, Parliament has full authority to permit any
person or authority to make legislation.
• An act of parliament creates a framework of a particular law which tends to
be an outline of the purpose for which it is created. The important object of
this is that any legislation by such delegation should be according to the
purposes as laid down in the act.
• The main feature is that it allows the state government to amend the
laws if there is any need without delaying for the new act to be
passed by the Parliament.
• If there is any requirement then sanctions can also be altered by the
delegated legislation as the technology changes.
• It is believed that when such authority is delegated by the Parliament
to any person or authority it enables such person or the authority to
provide more detail to the act of the Parliament
• For example, the local authority has power conferred by the superior
one to make or amend laws according to the requirement of their
respective areas.
• The delegated legislation plays a very important role as the number
of them are more than the acts of the Parliament. It has the same
legal standing as the act of Parliament from which it is created.
Factors responsible for the rapid growth of
Delegated Legislation
• Pressure on Parliament – The number of activities in states is expanding which
requires law and it is not possible for the Parliament to devote sufficient time to
every matter. Therefore for this, the Parliament has made certain policies which
allows the executives to make laws accordingly.
• Technicality – Sometimes there are certain subject matters which requires
technicality for which there is a requirement of the experts who are professional
in such fields and members of Parliament are not experts for such matters.
Therefore, here such powers are given to experts to deal with such technical
problems like gas, atomic, energy, drugs, etc.
• Flexibility – It is not possible for the Parliament to look after each contingency
while passing an enactment and for this certain provisions are required to be
added. But the process of amendment is very slow as well as the cumbersome
process. Thus, the process of delegated legislation helps the executive authority
to make laws according to the situation. In the case of bank rate, policy
regulation, etc., they help a lot in forming the law.
• Emergency – At the time of emergency, it is not possible for the
legislative to provide an urgent solution to meet the situation. In such
case delegated legislation is the only remedy available. Therefore, in
the times of war or other national emergencies, the executives are
vested with more powers to deal with the situation.
• The complexity of modern administration – With the increasing
complexity in modern administration and the functions of the state
being expanded and rendered to economic and social spheres too,
there is a need to shift to new reforms and providing more powers to
different authorities on some specific and suitable occasions. In a
country like Bangladesh, where control over private trade, business
or property may be needed to be imposed, and for implementation
of such a policy so that immediate actions can be taken, it is needed
to provide the administration with enough power.
Advantages of Delegated Legislation

• Save time for the legislature.

• Allow for flexibility.
• Expert opinion is required in legislation.
• Parliament is not always present in the session.
• Used as an experimental basis.
• It is restored to use it in a situation of emergency.
• Can be easily Settle down with consulting the required party of the
case.
Evolution 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 enabled 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.
• The Constitution of India comprises 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 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.
• The Privy Council, in this case, held that Councils of Governor-General was
supreme Legislature and has ample 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 accepted
the transfer of Legislature power to the Executive.
delegatus non potest delegare
• Delegata potestas non potest delegari is a principle
in constitutional and administrative law that means in Latin that
"no delegated powers can be further delegated".
• Alternatively, it can be stated delegatus non potest delegare ("one to
whom power is delegated cannot himself further delegate that power).
• The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule
of law. It merely states a rule of construction of a statute.
• Generally, sub-delegation of legislative power is impermissible, yet it can
be permitted either when such power is expressly conferred under the
statute or can be inferred by necessary implication.
• This is so because there is a well-established principle that a sub-delegate
cannot act beyond the scope of power delegated to him.