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Administrative Law

UNIT 2

Introduction ➜
The legislations power is delegated to the Executive and the exercise of such power is delegated
legislation.
Nature & Scope ➜
The need to study this is the trend in most of the democratic study is delegated legislation. Legislation is
the act of making, giving for enacting laws. legislation is power to make laws
Object ➜
The need of law is necessary to regulate the adverse effects are the negative and positive aspects,
thus legislature cannot meet all the contingencies of new society with 100% accuracy.
Definition ➜
Salmond
Subordinate legislation is that which proceeds from any authority other than the sovereign power,
and is therefore dependent for its continued existence and validity on some superior or supreme authority.

Classification of delegated legislation

Introduction ➜
There are two broad classification
a. based on nomenclature used for delegated legislation called as title based.
b. based on its nature .

A> Titled based ➜

Delegated legislation may be in the form of rules, regulations, bye laws, notification, schemes,
orders, ordinance, directions etc.
1. Rules -
The general clauses act 1897, section 3 define the term rules as a rule made in exercise of power
conferred by enactment and shall include regulation made as a rule under any act.
The rules must be held to be part of the parent act and can do anything it can do if within its
scope.
Rules are made by the government and have a delegate of the Legislature. The act confers such
power on the government.
2. Regulation -
Regulation is variously defined as meaning rules prescribed for conduct. Rule order prescribed
for management or government. It is a rule or order or direction from a superior or competent authority.
The term regulation means an instrument by which decision Orders and acts of the government
are made known to the public.
In India the foreign exchange Regulation Act 1973 empowers the central government to make
regulations for the effective implementation of the act.
3. Orders -
The function of an order relates more particularly to the execution or enforcement of a rule
previously made.
Depending upon the nature of the power dedicated to the executive, it can make two kinds of
orders, general and particular orders.
4. Bye laws -
It is confirmed to rule made by semi government authorities established under the act of
Legislature.
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It includes all orders, regulations, rules and statutes made by any authority subordinate to the
legislation.
Example, rules made by local authorities.
5. Direction -
It means guidance for command direction contains instructions.
The constitution gives power to the central government to give directions to the state government or the
execution of its laws.
6. Scheme -
Under the act means a proposal prepared and published to the implemented.
Which has been duly sanctioned and published in compliance with the provisions of the act in a scheme
in force.

B> Nature Based ➜

The committee on minister’s power distinguished two types of parliamentary delegation
1. Normal delegation -
It means where the limit of delegation is clearly prescribed in the parent act.
It is further classified into
a. Positive - where the limits of delegation are clearly defined in the enabling act.
b. Negative - where our delegated does not include power to do certain things i.e. Legislate on matters of
policy or to impose taxation.
2. Exceptional delegation -
Henry VIII clause Insurance of exceptional delegation maybe.
i. power to legislate on matter of principal.
ii. Power to amend acts on parliament.
iii. Power conferring such a wide discretion that it is almost impossible to know the limits.
iv. Power to make rules without being challenged in a court of law.
Under this clause very wide power are given to the administrative Agencies to make rules
including the power to amend and repeal

Forms and Classification of delegated legislation

i. Title based classification -
Delegated legislation may be in the form of rules, regulations, bye laws, notification, orders,
directions etc.
ii. Discretion based classification -
A discretion may be conferred on the executive to bring the act into operation on fulfillment of
certain conditions and it is called as conditional or condition legislation
iii. Purpose based classification -
Classification may be based on nature and extent of power conferred and the purpose for which
such power can be exercised.
iv. Authority based classification -
The statute may also empower the executive to delegate further powers conferred on it to its
subordinate authority this is called as sub delegation.

Growth or extent of delegated legislation

Many factors are responsible for the Rapid growth of delegated legislation in every modern
democratic state.
according to committee on ministers power - it would be impossible to produce the amount and
kind of legislation which Parliament desired to pass and which people of this country are supposed to
want if it becomes necessary to insert in the act of Parliament themselves any consideration.
a. pressure upon parliamentary time ➜
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Legislative functions got increased with the concept of welfare state due to technological
development, new legislations were made and that burned the parliament.
It cannot spend its time in minute details of the legislation and delegation to the executive where
guidelines were given to who felt the minute details does overcome the shortage of time to serve the
object of welfare state.
b. Technicality➜
The parliamentarians are officially organs of law making. Due to lack of technical knowledge in
drugs, atomic or nuclear energy, skill is required which legislature does not have.
Experts should make laws in executives, and thought of delegation started in the betterment of the
Legislative aspect of functioning.
c. flexibility ➜
Compared to official lock making functions, the law made through delegation is more flexible.
The legislative active cannot anticipate contingency while making the law and to meet the
requirement of existing situations, updating for amendments are needed, does there updating is really
given to the executive. So, delegation is their remedy to all of this.
d. Experiment ➜
Rules not working can be changed. The best interest of the public is considered and
experimentation is taking place.
e. confidential matters ➜
The last procedural component in making law is that enacted law is notified to be within the
knowledge of a common man.
There is an expectation not necessary or loss to be notified.
f. complexity of modern administration ➜
Similar to pressure of parliamentary time due to the welfare state concept. Law gives positive
and negative aspects.
Certain legislations may not fulfill the purpose of which it is made.
So law should meet all contingencies, modern administration has disadvantage, delegated
legislation was given effectively and brought into practice since law molds the benefit of the public to
meet the contingencies, delegated legislation is essential.
Criticism ➜
It is a democratic and may lead to despotism according to various scholars. It is not completely
acceptable, now the position is changed.
The idea behind this is reflection of constitutional law since it gives new form of Government
where the burden of government is shared and that is result of socio economic changes, technological
development and economic advancement etc.
It the object of Administrative study is not concerned with the existence of delegated legislation
but cannot be denied how to control the delegated legislation.

Constitutional Limit or Restriction On delegated legislative powers

Constitutional validity of delegated legislation in England, US and India

India ➜
Pre constitutional period and Post constitutional period
Pre Constitutional Period –
Case: R -vs- Burah
In 1869, the area Garro Hills was removed from the jurisdiction of Civil and criminal courts. The
appellant who were convicted of Murder and sentenced to death challenge the notification.
The high court of Calcutta bi maturity Apple the contention of the apple and and health section 9 of the
act as ultra vires the power of Indian legislature.
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According to the court the Indian legislation was a delegate of the Imperial Parliament and further
delegation was not permissible.

Case: Jatindra Nath Gupta -vs- Province of Bihar

The Bihar maintenance of public order act 1948 was in Force for 1 year. However the power was
conferred on the provincial government to extend the operation of the act for a further period of 1 year.
The Court held that the power of extension with modification is not a valid delegation because if
modification is vested which cannot be delegated the two cases allowed conditions organisation is
allowed and modification and delegation is not allowed.
Post constitutional period -

Case: Re -vs- Delhi Laws Act

Leading authority’s classification under 143 with respect to certain acts as delegated which is
allowed or not.
The Supreme Court has come out with certain as to excessive legislation are
i. section 7 of Delhi laws act 1912
ii. Section 2 of Ajmer Mewer act 1947.
iii. Section 2 of part C state laws act 1950.
Principal laid down in this case
a. Parliament cannot abrogate itself by creating parallel legislative body.
b. powers of delegate action is axillary to the powers of Legislature.
c. the limitation of on the delegation of legislative power is that the legislature cannot part with essential
legislative functions that has been expressly vested in it by the constitution.
d. power to repeal is legislative and it cannot be delegated.

Case: Hamdard Dawakhana -vs- UOI

The drug and magic remedies Act 1954 was enacted by the Parliament to control advertisement of
certain drugs. Section 3 list of diseases for which advertisement was prohibited and authorised central
government to include any other disease in the list.
the supreme court held that section 3 invalid as no criteria stands for principal has been laid down
their in and powers delegated was unguided and uncontrolled.

Case: Gwalior Rayan Silk Mfg Co Ltd -vs- CST

The controversy regarding doctor in for excessive delegation. The minority judges opened that
no. Is having excessive delegation since it amounts to border delegation especially justice mature brings
when there is an enabling or parent act there is no point in going down principles.
Justice Khanna, different and since the legislation as a representative of people should not act in
derivation of peoples interest does the policy of guidelines test is only effective.

England ➜
Parliamentary Supremacy is there whereas in India law is supreme. The Parliament can make law
is vested with law making powers including powers of delegation.
This justified since no external Agencies cannot question the lawmaking powers of
parliament. The extent to which it can delegate such question does not arise.
If Parliament places that delegated legislation should be controlled it can come out with policy
of need not control but Parliament can do whatever it wants.
So committee in minister’s power makes a recommendation that the Parliament should make pair
and law empowering The Other organs to make law along with the limit to control the delegation.

USA ➜
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a. under the constitution of The United States of America, delegated legislation is not accepted in the
theory because of 2 doctrine
i. separation of powers -
under article 1 of the US Constitution says - legal powers of the US legal system are conferred on
Congress and the court has power to interpret the constitution and declare any statute as unconstitutional.
If it does not conform to the fair view of the constitution. They have separation of power.
Judiciary can interfere and delegation is not permissible.

Case: Field -vs- Clark

Congress cannot delegate legislative power to the president is a principal universally recognised as
vital to integrity and maintenance of the system of government Ordinance by the constitution.

ii. Delegatus non potest delegare

a delegate cannot further delegate, it is beside separation of powers this doctor and also says
delegation is not allowed that is Congress gets the law making power by the people hence Congress is the
delegated people does it cannot further delegate its power does there is no delegation in theory.
b. in practice -
it was not possible for the Congress to delegate its legislative power to executive, strict adherence there
to was not practicable.

Case: Panama Refining Co -vs- Ryan

The president was authorised by the Congress to prohibit transportation of oil in interstate
commerce in excess of quota fixed by the state concerned.
The policy of the Act was to encourage National industrial recovery and to Foster
fair competition.
The Supreme Court held that delegation was invalid.

Case: Schechter Poultry Corp -vs- US

President to approve codes of fair competition and violation thereof was made punishable. The
court held that the discretion of president was virtually unfettered.

Case: National Broadcasting Company -vs- US

Powers were conferred upon the federal communication committee to licence broadcasting station
under the Communications act 1934. The criterion was Public Interest convenience or necessity. Though
it was vague and ambiguous, the Supreme Court held it is valid standard.

Case: Yakus -vs- US

Under the emergency price control act 1942, to the price administrator was given the power to
fix maximum prize which in his judgement will be generally fair and equitable and will effectuate the
process of the act.

Permissible delegated legislation

1. Commencement ➜
The Parliament permits delegated authority to bring it in force with a fixed date.
It is the duty of delegated authority to take the necessary Publication, notify etc., of act in the
official gazette and to start in fixed date
2. Inclusion ➜
The act may be delegated the power to subordinate authority to extend to other areas with a
condition if the executive satisfies with the circumstances.
3. Exclusion ➜
The Parliament may make a law for the whole country.
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It may be delegated to the executive, to empower it to remove certain areas from the operation of
that act.
4. Suspension ➜
The Parliament Mein empower the executive to suspend certain provisions under certain
circumstances if satisfies
5. Application of existing law ➜
The executive may be empowered by the Parliament to extend certain existing laws to new areas.
6. Modification ➜
Generally modification power cannot be delegated to the executive, in the power of modification
can be delegated by the parent act.
7. Framing of rules ➜
The Parliament May ask the executive to frame the rules for an act by submitting them to the
parliament.
8. Removal of difficulties or Henry VIII Clause ➜
Henry VIII, hurdles on his way of making law, he took assistance from Parliament to remove
difficulties.
Delegation can be in this form, section empowering the Central Government or state government
to remove the difficulties while implementing the particular act to bring the law into operation to apply
law smoothly.
Narrow -
The narrow clause has to be exercised consistent with the provisions of the parent act
Example - section 128, state reorganization act empowers the president by order to take any step which he
deems fit to bring its operation.
Border -
The border Clause authorizes the executive to modify the parent act.
Example - article 372 of the Indian constitution empowers the President to make a law consisting with
the constitution when it is inconsistent.
Case: Jalan Trading Co (p) Ltd -vs- Mill Mazdoor Sabha
Section 37(1) of the Payment of Bonus Act 1965 enacted by the Parliament empowered the central
government to make provisions. Section 37(2) makes the order of Central Government made under
subsection 1 final. The Mill Mazdoor Union challenged section 37 as it gave arbitrary and autocratic
power to the executive.
The Supreme Court admitted the contention of the petitioner and quite section 37 of the Payment
of Bonus Act 1965.
Case: Gwalior Rayan Silk Mfg Co Ltd -vs- CST
The controversy regarding doctor in for excessive delegation. The minority judges opened that
no. Is having excessive delegation since it amounts to border delegation especially justice mature brings
when there is an enabling or parent act there is no point in going down principles.
Justice Khanna, different and since the legislation as a representative of people should not act in
derivation of peoples interest does the policy of guidelines test is only effective.

Impermissible Delegated legislation or cannot be permitted to delegate

1. Essential legislative functions ➜
Legislative policy must be laid down by the legislature itself and by interesting this power to the
executive, the legislature cannot create a parallel legislature.
Case: Gwalior Rayan Silk Mfg Co Ltd -vs- CST
The controversy regarding doctor in for excessive delegation. The minority judges opened that
number is having excessive delegation since it amounts to border delegation especially justice mature
brings when there is an enabling or parent act there is no point in going down principles.
Justice Khanna, different and since the legislation as a representative of people should not act in
derivation of peoples interest does the policy of guidelines test is only effective.
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2. Repeal of law ➜
Power to repeal a lot is essentially legislative function and therefore delegation of power to the
executive to repeal a lot is excessive delegation and is ultra vires.
3. Modification ➜
Modification of the provision of the statue is an essential legislative function. This important
legislative feature cannot be delegated even if it is permitted it cannot be done so in the rarest of rare case
only.
4. Exemption ➜
The principle applies in case of exemption and the legislature cannot delegate the power of
exemption to the executive without laying down the norms and policy for the guidance of the latter.
5. Retrospective operation ➜
This principle cannot be applied in the case of delegated legislation, giving an act retrospective
effect is essentially a legislative function and it cannot be delegated.
Case: B S Vadera -vs- UOI
The Supreme Court has held that the article 309 was wide enough to include the making of rules
with retrospective.
Case: B S Yadav -vs- State of Haryana
The Supreme Court observed that it is not enough that the statue should authorise retrospective
operation of the delegated legislation, the authority must also show that there was sufficient, reasonable
and national justification for applying the rule retrospective.
6. Future act ➜
To legislate future act it is an essential feature of the Legislature. This important legislative
feature cannot be delegated.
7. Offence and penalties ➜
this important feature cannot be delegated however the parent act Mein fix certain amount as the
maximum for certain offences and may leave to the discretion to fix the penalty below the maximum
penalty. This relaxation may be allowed
8. Imposition of tax ➜
This important legislature feature cannot be delegated however the parent act may delegate the tax
laws after fully enacted and with some guidelines to the implement then will slight variation.
9. Ouster Of jurisdiction of court ➜
The legislature cannot empower the executive by which the jurisdiction of the court may be
ousted. This is a pure legislative function.

Control over delegated legislation

A. Parliamentary Control or Legislative Control
Introduction ➜
It is a kind of control where the Legislature is a constitutionally authorised body to make law
including delegating power under legislation. Provided it should be subsidiary to legislation.
Obligation ➜
On the legislature when it confirms delegation that it is exercised lawfully then the legislature is
supervising for controlling the delegated power.
It has power to criticize the power when unfairly used by the authorities.
Modes ➜
There are three modes of control
A. proceeding in Parliament ➜
1. Debate on delegating Bill - the bill is placed before the house for deliberation and there is a debate on it
as to its nature of delegation, extent etc.
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2. asking questions and giving notice - debate is in the form by the Legislature two rays question and
classification. they should justify I dare stand for delegation or else as per rule 59 of Lok Sabha
procedural rules, notice is issued by people sitting.
3. Resolution on motion - the bill proposed if a matter of emergency, cannot go for deliberation, pass a
resolution following the delegation.
4. Demand for vote on grant - pertaining to delegated legislation even the budget is placed before the
house and what can be accounted and amount of Grand is determined.
5. Directions by speaker - this form is when failure of part of authority to give clarification is found. ID
the speaker can give direction to the committee to look into the validity of the delegation.
B. laying on the table ➜
1. It forms the legislature as to what rules have been framed by the administrative authorities in exercise
of their law making power.
2. It provides an opportunity to the legislature to question or challenge the rules already made or
proposed to be made.
3. It applies to draft rules for finalized rules.
There are various forms of laying and the degree of control in these forms varies.
Select committee ➜
1. laying without further provisions for control - the purpose is to inform Parliament regarding the
framing of delegated Legislation irrespective of the forms. This also says that the moment it is made,
immediately it comes into effect.
2. Laying with deferred operation - laying subject to postpone mint not operative immediately, after
resolution it is operative.
3. Laying with immediate effect but subject to annulment - If there is a disapproval, delegated legislation
ceases to take effect.
4. laying in draught subject to resolution that no further proceeding to be taken - draught rule will be late
and those draught is made for particular duration and cannot be finalized until expiry.
5. Laying in draught and requiring affirmative resolution – the rules will be laid but it is subjected to
approval of parliament.
6. laying with operation is different until approval is given by affirmative resolution - the rules made in
actual form and cooperative is deferred.
7. Laying with immediate effect but requiring affirmative resolution as a condition for its continuance -
the rule meant to couple with emergency are temporary therefore these continuance will be given
affirmative resolution.
C. Scrutiny committee ➜
Speaker can give direction by constituting a scrutiny committee, to look into the validity of the
subordinate delegation or legislation.
There are effective control mechanisms to strengthen parliamentary control.
There are two scrutiny committee
a. Lok Sabha committee on subordinate legislation.
b. Rajya Sabha committee on subordinate legislation.
Functions -
1. Whether delegated legislation is in accordance with the general objects of the Constitution are the act
pursuant to which it is made.
2. Whether it contains matters which in the opinion of the committee, should more properly dealt within
an act of parliament.
3. Whether it contains imposition of any tax.
4. Whether it is directly or indirectly bass the jurisdiction of the court.
5. Whether it gives retrospective effect to any of the provisions in respect of which the constitution or the
Act does not expressly give any such power.
6. Whether it involves expenditure from the consolidated fund of India for the public revenue.
7. whether it appears to make some unusual or unexpected use of the power conferred by the constitution
or the act pursuant to which it is made.
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8. Whether it appears to have been unjustifiable in its Publication or in laying it before parliament.
9. Weather for any reason its forms or purpose calls for any elucidation.
This is one of such effective controls and they have recommended a mandatory 30 days laying
provision and explanation for noncompliance.
Parliament shall modify the delegation to serve its object and essential function shall not be
delegated.
The administrative body should not transfer the power conferred on them. It is proven as weak
control
Conclusion ➜
Parliamentary control is not effective. Wade says “one prominent feature of the 20th century has
been a shift of the constitutional centre of gravity.

B. Procedural Control
Introduction ➜
Certain procedural safeguard has been provided to control the power of Administrative authorities.
Procedural control has three components ➜
1. Antecedent publicity ➜
When the law is in draft form, publishing the same when the delegated legislation is in draft
form. It is brought to the notice of the people to know their objections.
India - no separate law mandating the same, depend any enable statue example, cooperative societies act,
but Section 23 of general clauses act 1897 is attracted with respect to this which specifically says that
whenever no provision for antecedent publicity this section applies and shall publish the draft in the
gazette and invite for objection and suggestion and take into consideration before finalizing the same.
There is an element over this and it is applicable only to the delegated legislation in the form of
rule, regulation or bye laws.
America -, this technique is widely used under administrative procedures act 1946 under Section
4, which mandates for general notice of proposed rules to be regulated in the Federal register and any
agency shall participate by means of oral or written submission. It is used widely but not for all delegated
legislation only for substantive in nature.
England - section 1 of rules of Publication act 1897 where all statutory rules should be brought to the
public and they can raise objections where people can know. No but the statutory Instruments Act 1946
omitted the provisions of antecedent publicity which was there in the rules of Publication act of 1893.
2. Publication ➜
The fundamental principle of law is “ignorance of law is non excuse”. People should know the
law in force or existing law. When the right is available in the publication of official gazette, official
journal, official website etc. This makes people participate in rulemaking.
England,- rules of Publication act 1893 e mandate for Publication but replaced by statutory Instruments
Act 1946. Section 3 of the act provides that in case of action for breach of roll, good defence is to be
pleaded that rules were not made known. Section 2(1) two of the act provide mode of Publication
through Queen's printers and number consequently and sold to the public subject to certain limitations.
In the USA, before 1935, no machinery to enforce Publication. In 1935, US Supreme Court
decided in a
Case: Panama Refining Co -vs- Ryan
There was no adequate publication of delegated Legislation, Thus Congress enact Federal
Registration Act, 1935 which mandates for publishing the federal rules and without Publication no person
shall be prosecuted under that enactment.
Administrative procedure act 1946 which required for Publication under Section 4(c) where not
mandated publishing rules for minimum period of 30 days for the people to deliberate
In India, there is no general law, differs from Statue to statue. Rules are published in the official
gazette, other cases left to the discretion of the Administrative body to publish it in recognised
manner. In India mode of publishing is Directory and not mandatory
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Case: state of Maharashtra -vs- M H George

Justice Aryankar shares if statute provides for rules to be published in a manner. It should be
complied with.
Held that, validity of Publication is natural justice or else if it can be declared as invalid.
Effect of delegated legislation - date on which it is made it is operative in the absence of it or
defect in Publication, it will be a ground for discharge it invalid.
The gravity of Publication varies according to facts and circumstances of the cases. However in
India though Publication is mandatory the mode of Publication is is directory
3. Consultation➜
Interest is considered to be a mode of effective control over administration rule making power.
England - there are no specific statutory provisions for the same, before delegated legislation is made but
being compiled informally in England.
According to Griffith -
a. ordinary type of consultation -
i. individual objections - consultation of this kind are by statutory provisions example factory law.
ii. Consultation with specified interest - Minister is required to consult specified interest before
making the regulation.
b. extraordinary type of consultation-
i. Preparation by affected interest- affected people draft rules that are to be applied to them to
protect their interest.
ii. Approval by statutory body - executive prepared the draft that is placed before the statutory
body and suggested modification to be placed before Parliament for its approval. It can be either through
bodies or directly people participating.
USA - it is a common practice, administrative procedure act 1946 provides for hearing. Generally
hearing does not arise when the law is made but if they have to participate in rulemaking, hearing is done
in the form of consultation of interest and not strictly or as a load under the act and depends upon
statutory provisions.
India -, no statute for the same, informal constitution is followed under certain statutes. The regulations
are allowed to be known to the people finalizing different forms of consultation.
1. Official consultation - statute specifically emphasizes on consultation representation of peoples act
prescribed that the Central government should consult Election Commission before loss and
acting. Banking Companies Act to consult Reserve Bank of India to assist the central government.
2. Consultation with statutory bodies - some statutes, law making power is allowed only according to
rules, the rationale is to come but with effective laws.
3. Consultation with advisory bodies - when the power is delegated to the central government, the
established advisory body is in that parent act. Mining act, the central government through provisions is
allowed to make laws by approaching the mining board.
4. draught Rule By affected interest - section 61 of mines Act 1961, authorizes owners of mines to
prepare rules and submit to the owners of mine so appropriate steps can be taken. This is a kind that
allows affected people to take part in the rulemaking process. That statutory safeguard and administrative
necessity.
Conclusion ➜
Consultation of interest influences law making process with democratic forms, particularly in
what it is called bureaucratic legislation.
The necessity and need of publication of subordinate or delegated legislation cannot, however, be
underestimated.

Judicial Control –
Introduction ➜
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Delegation is does not fall beyond the scope of Judicial review and in almost all democratic
countries it is accepted that the court can decide the validity or otherwise of delegated legislation mainly
applies to test
a. Substantive ultra vires
b. Procedural ultra vires

A. Substantive - when subordinate legislation when it goes beyond the scope of its authority conferred on
the delegation to enact.
B. procedural - when a subordinate legislation and act without complying the procedural requirement
prescribed by the parent act or by any other general law.
The compliance of procedural depends on directory and mandatory provisions.
The non-compliance of this is looked by applying directory or mandatory control.
Circumstances ➜
1. Where parent act is unconstitutional -
For delegation to be valid the first requirement is the different act or enabling statute by which
legislative power is conferred on the executive authority must be valid and constitutional.
Case: Chintamanroa -vs- State of M P
The parent act authorised the deputy commissioner to prohibit manufacturing of beads in some
areas under certain periods.
The order passed by the deputy commissioner under the Act held Ultra vires as the act under
which it was mandated violated the fundamental rights to carry on occupation trade or business
guaranteed under article 19 (1)(g) of the constitution.
2. Where parent act delegates essential legislative functions -
Under the scheme of our constitution, a legislature cannot create, Institute are establish a parallel
legislature
3. Where delegated legislation is inconsistent with parent -
The validity of delegated legislation can be challenged on the ground that it is ultra vires the
parent act or enabling statute. Delegated legislation can be held valid only if it conforms exactly to the
power granted.
English law delegated legislation may be struck down on the ground that it infringes the parent
act.
Case: Major Radha Krishan -vs- UOI
The parent act prescribed a period of limitation for taking disciplinary action against Army
personnel. Delegated legislation our time to get over the bar of limitation.
It was held that the rule was inconsistent and ultra vires the parent act.
Case: Tata Iron and Steel Company -vs- Workmen
The Supreme Court observed that it was a matter of detail which is subsidiary to the main
purpose of the legislative measure for implementing the scheme.
4. Where delegated legislation is inconsistent with general laws –
The principle that a subordinate on delegated legislation made by the executive cannot be contrary
to the law of the land.
5. Where delegated legislation is unconstitutional -
Case: Narendra Kumar -vs- UOI
Since parent act is Constitutional held legislature also need not necessarily be constitutional it
may be unconstitutional also.
Case: Air India -vs- Nergesh Meerza
Regulation framed by Air India providing that service of an air hostess could be terminated if she
becomes pregnant was held arbitrary, unreasonable and violative of article 14 and 15 of the constitution.
6. Unreasonableness -
England- the rule is based on presumed intention of the Legislature that the common law allows them to
make only reasonable bye laws. This is an implied limitation on the exercise of power bi Sach authorities
and therefore if the power is not originally exercise the action is in bad law.
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De Smith says - There is no reason of principal why manifestly unreasonable statutory instrument
should not be held to be ultra vires on that ground alone.
Case: Munro -vs- Watson
Bye law framed by a local body totally prohibit music in any street accept under special licence
from the mayor was held and reasonable
India -
Case: Indian Express newspaper -vs- UOI
The apex court rule that subordinate legislation does not enjoy the same degree of immunity as
substantive legislation enjoys.
Unreasonableness is one of the ground of judicial review available to test validity of delegated
legislation. if a delegate intends to impose a condition which is unreasonable it cannot be held legal or
valid.
Case: Air India vs Nergesh Meerza
It is not a disability but one of the natural consequence of marriage and is an immutable character
of a married life.
7. Malafide or bad faith
England -
whenever the legislature confirm any legislative power on any administrative authority, the said
power must be exercised in good faith by the latter the and on the proof of bad faith the court can hold
the exercise of power Ultra vires
India -
In Indian Administrative law is based on the principle that every statutory power must be
exercised in good faith.
However their decision of the Supreme Court are not consistent on the point and there is cleavage
of opinion.
Case: Narendra Kumar -vs- UOI
Apex court stated, malafide has not been suggested and we are not proceeding on the assumption
that the central government was honestly on the opinion.
Case: B D Gupta -vs- State of UP
It is well settled that no legislation can be challenged on the ground of malafide.

Sub delegation
When a statute confers legislative powers on an administrative authority and that authority for the
delegates their power II to another subordinate authority or agency is called sub delegation.
A delegate for the delegate’s delegation goes to many stages
Example -
essential commodities act - section 3, Central Government can make rules, section 5, Central
government is empowered to delegate the power to State government or any other officers, state
government to officers and then to their subordinates.
Substantive Ultra vires -
some policy given to delegated legislature within that only sub delegation is to be made separate
policy need not be formed or separate guidelines need not be made with respect to sub delegation.
Object -
1. Power of delegation necessity careers with it the power of further delegation.
2. Sub delegation is ancillary to delegated legislation
Delegatus Non Potest delegrae is only a rule of construction applied by Judiciary to determine the
intention of delegation for its validity.
the court apply this maximum only in circumstances where its validity is question to understand
the necessary implication and not a rule, only AIDS the court to understand the intention of the
Legislature, publishing sub delegation is mandatory since it is legislative in nature.
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Excessive Delegation
Delegated legislation has been defined by Salmond as “that which proceeds from any authority other than
the sovereign power and is therefore dependent for its continued existence and validity on some superior
or supreme authority.”

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise by a
subordinate agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules
themselves which are made by the subordinate authority in pursuance of the power conferred on it by the
legislature.”

The concept of delegated legislation attracted a great deal of controversy and debate in the early years of
the Constitution, and at least the theoretical aspects of the issue seem settled with the Supreme Court’s
pronouncements in

In Re: Delhi Laws Act, 1912 and Gwalior Rayon Mills Mfg. Co. Ltd v. Assistant Commissioner of Sales.
Though the Court has upheld and struck down delegated legislation in a number of cases in the
intervening years, these cases have stood the test of time as they contain the most comprehensive
deliberations on the concerned issue.

The Delhi Laws case was the result of a Presidential Reference under Article 143, wherein the Court was
required to adjudicate the validity of the Delhi Laws Act, 1912 which conferred powers on the
government to extend the application of the law as it saw fit. The case provoked contentious debates
amongst the judges, with each member of the 7 Judge Bench delivering an opinion in the matter.

Despite a considerable amount of overlap among the 7 opinions, the consensus – contained in Kania CJ’s
opinion – was that “the power to delegate legislative functions generally is not warranted under the
Constitution of India at any stage.” Though wide latitude has been given to Parliament in terms of what it
can delegate, the consensus states authoritatively that this power is limited to “conditional” or
“subsidiary” legislation. By conditional legislation the Court meant that the legislature would frame the
law, and it would be the prerogative of the executive to implement it when conditions demanding such
implementation were achieved. As by the Court stated, “the legislature must declare the policy of the law
and fix the legal principles which are to control in given cases and must provide a standard to guide the
official or the board empowered to execute the law.”

This reasoning was advanced in Gwalior Rayon Mills Mfg. Co., where it was reiterated that the essential
legislative function was the determination of the legislative policy and its formulation as a rule of
conduct. Further, the Court warned against the legislature overstepping the limits of delegation: “It may
not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down
any standard for the guidance of the Executive; it may confer an arbitrary power on the Executive to
change or modify the policy laid down by it without reserving for itself any control over subordinate
legislation.” It was stated that the legislature could not be allowed to abdicate its legislative power as that
would fall beyond the permissible limits of delegation.

Given the extant position of law, it is submitted that the present Amendment suffers from the vice of
excessive delegation as Parliament has laid down no discernible policy in either the text of the Act or in
the accompanying Statement of Objects and Reasons. According to the original Act, Information
Commissioners were to enjoy the same term of office and salaries as those of the Election Commissioners
– which is a constitutional body – in order to provide for neutral decision making and to safeguard their
independence. However, the Amendment does away with this provision, replacing both with provisions
that may be “prescribed by the Central Government.”
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According to the Statement of Objects and Reasons, the logic behind distinguishing between the Election
Commission and Information Commission is that the former was established by the Constitution and
performed functions relating to elections, whereas the latter is a statutory body formed under the 2005 Act
with a completely different mandate. Further, the section dealing with delegated legislation states that the
delegation in the present case is of a “normal character”, as according to the government, it was not
“practicable” to provide for rules of “procedure or administrative details” in the Bill itself.

It is submitted that the Amendment does not stand scrutiny as the legislature has not declared the standard
to be followed by the Government when prescribing rules for the term of office and remuneration of the
Information Commissioners. Recall the pronouncement of the Court in the Delhi Laws case: the
legislature must declare the policy of the law and fix a policy standard to guide the subordinate authority
empowered to execute the law. It is therefore necessary for the legislature to declare a standard, which the
executive must then keep in mind while formulating rules. In the present case, no such standard has been
laid down by the legislature, as the Statement of Objects and Reasons simply – and erroneously –
distinguishes the Information Commission and Election Commission.

In Hamdard Dawakhana v. Union of India, the Court struck down Section 3(d) of the Drugs and Magical
Remedies Act – which used the term “or any other disease or condition which may be specified in rules
made under this Act” – on the ground that there was no legislative policy on the basis of which the
diseases were to be identified. Similarly, the legislature in the present case has conferred powers upon the
government without providing a policy on the basis of which the requisite rules are to be framed. There is
clear abdication on the part of the legislature, which contravenes the established position of the Court on
the question of delegated legislation.