Delegated LEGISLATION

- Smita Srivastava
 Delegated Legislation
 Exception to Doctrine of Separation of Power

 Difficult to give any precise definition

“When the function of legislation is entrusted to organs other than the

legislature by the legislature itself, the legislation made by such organ is called
delegated legislation.”
According to M.P. Jain, the term delegated legislation is used in two sense:
It may mean

a) Exercise by subordinate agency of legislative power delegated to it by the

legislature.

b) The subsidiary rules themselves which are made by subordinate authority in

pursuance of power conferred on it by the legislature.
Example

 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 under 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
Act, having regard to the financial position and other relevant consideration.

 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 or safety.
 The statute enacted by the legislature conferring the legislative power
upon the executive is known as the ‘Parent Act’

 rules, regulations, bye-laws, orders, etc. made by the executive in

pursuance of legislative powers conferred by the legislature are known as
subordinate laws or the subsidiary laws or ‘child legislation.’
Form of Delegated Legislation

 Title-based classification
Delegated legislation may be in the forms of Rules, Regulations, Bye-laws,
Notifications, Schemes, Order, Ordinances, Directions etc.

 Discretion Based
A discretion may be conferred on the executive to bring the Act into
operation on fulfilment of certain conditions. Such legislation is called
“conditional” or “contingent legislation.”
 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 the executive can be
empowered to fix appointed day for the Act to come into force, to extend the
provisions of the Act to certain territories, persons, industries, commodities, to
suspend or to modify the provisions of the Act etc.

 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.”
 Reason for Growth
Lack of Time

- not possible for legislature to devote sufficient time to discuss all

the matters in detail.
- formulates the general policy i.e. skeleton.
- empower the executive to fill the details by issuing necessary rules,
regulations, bye-laws etc.
Technicality

-sometimes subject matter of the legislation requires technical expertise

- legislator being a common man does not posses the same.

- assistance of expert is required.

- e.g. drugs, gas, electricity, atomic energy.

Flexibility

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

the contingencies.
- some provision is required for unforeseen situation demanding speedy action
- Legislative amendment is slow and cumbersome process
- Through delegated legislation, the executive can meet the situation
expeditiously.
- removal of difficulty clause
- e.g. Police regulations
Experiment

- The practice of delegated legislation enables the executive to experiment.

- Experiment may be conducted and in the light of application, necessary changes

can be made.
- e.g. road traffic matters

Emergency

- In times of emergency, quick action is required to be taken.

- legislative process is not equipped to provide for urgent solution to meet the
situation.
- Delegated legislation is the only convenient – indeed the only possible remedy.
Complexity of modern administration

- The complexity of modern administration and the expansion of the functions

of the States to economic and social sphere have rendered it necessary to
resort to new forms of legislation and to give wide powers to various authorities.
 Constitutionality of Delegated Legislation

 To what extent legislature can delegate its power to executive.

England
 In England, earlier only Parliament was competent to make the law, but in
20th century, it started to delegate its power to executive.

 A hue and cry was made against it.

 Finally, matter was referred to Committee on Minister’s Power in 1929,

which reported that delegated legislation is both legitimate and
constitutionally valid but the limits of such power should expressly be
defined in the statute.
 In 1932, the Donoughmore Committee submitted its report and made
certain recommendations with regard to better publication and control of
subordinate legislation, which were accepted by Parliament with the
Passage of the Statutory Instruments Act, 1946.
U.S.A.

 In U.S.A. delegated legislation is not accepted in theory because of two doctrines

- Doctrine of separation of power
- Delegatus non potest delegare (A delegate can not delegate further)
Congress gets power from the people and is a delegate of people in that
sense, it can not further delegate its legislative power to executive or to
any other person.
 Government functions had increased and it was impossible for congress to enact all
statutes with all particulars.
 Supreme Court tried to create a balance between the two conflicting forces i.e.
doctrine of separation of powers and inevitability of delegated legislation.
 Panama Refining Co.
vs
Ryan (1934)

Popularly known as the Hot Oil case, under sec. 9(c) of the National Industrial
Recovery Act (NIRA), 1933 the President was authorized by the Congress to
prohibit transportation of oil in inter-state commerce in excess of quota fixed
by state concerned. The Supreme Court by majority held that delegation was
invalid as the Congress has not declared any legislative policy or standard.
 Schechter Poultry Corporation
vs.
U.S. (1935)
The Supreme Court unanimously struck down section 3 of National Industrial
Recovery Act 1933 (NIRA), which authorized the President to approve codes of
fair competition and violation thereof was made punishable. The court held
that the discretion of President was ‘virtually unfettered.”

 After the above two cases, however, the Supreme Court took the liberal view
and in many cases, upheld the delegation of legislative power.
 National Broadcasting Co.
vs
U.S. (1943)
Where Federal Communication Committee was authorized to license broadcasting
stations under Communication Act, 1934 subject to public interest, convenience
and necessity. Supreme Court held it to be valid as policy was there to guide the
discretion.

 So in U.S. also delegated legislation is valid but policy should be there to guide
the discretion of executive.
India

 Discussion can be divided into two stages-

- Pre- Constitution Period
- Post- Constitution Period
Pre- Constitution Period
So far as situation of India is concerned, this question was firstly raised in the case of
when the Privy Council was highest court of Appeal.

R. vs Burah (1878)
By Act XXII of 1869, Garo Hills was removed from jurisdiction of civil and criminal
courts, and by section 9, the Lieutenant Governor was empowered to extend all or
any of the provisions of the Act to Khasi, Jaintia and Naga Hills. One Burah was tried
for the murder of Commissioner of Khasi and Jaintia Hills and was sentenced to
death. Calcutta High Court declared section 9 as unconstitutional. Indian Legislature is
delegate of British Parliament so it can not sub-delegate. But reversing the decision of
High Court, Privy Council held that Indian Legislature is not the agent of British
Parliament, so it can delegate.
 Jatindar Nath Gupta
vs
Province of Bihar
(1949)
In this case validity of sec, 1(3) of Bihar Maintenance of Public Order Act, 1948 was
challenged on the ground that it authorized the provincial government to extend the
life of the Act for one year with such modification as it deem fit.
Federal Court held that power to extend the operation of Act beyond period of
one year was essential legislative function and therefore could not be delegated.
But Justice Fazal Ali in dissenting opinion held it valid as it merely amounted to
continuation of Act.
This case created a lot of confusion. After independence Constitution was silent on
this point so in order to clarify the actual position, President sought the opinion of
Supreme Court under Article 143.
Post-Constitutional Period
In Re Delhi Laws Act (1951)
Court laid down 3 principles-
1. Legislature can not give that quality and quantity of law which is required for functioning
of a modern state, hence delegation is necessary.
2. In the view of a written Constitution, the power of delegation cannot be unlimited.
3. That power to repeal a law or to modify legislative policy cannot be delegated because
these are the essential legislative functions which cannot be delegated.
 Hamdard Dawa khana
vs
Union of India (1960)

Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was

enacted by Parliament to control the advertisement of certain drugs. Sec. 3 laid
down a diseases for which advertisement was prohibited and authorized the
Central government to include any other diseases in the list. The Supreme Court
held sec 3 invalid as no criteria, standards or principles were laid down to guide
the discretionary power.
 M.K.Papiah
vs
Excise Commissioner (1975)

Where government was empowered to fix rate of excise duty and to make rule
regarding that. That rule was to be laid before state legislature. Court held that
laying of rule before legislature is check on delegated legislation. Legislature
need not to disclose any policy because ultimate power to repeal the law
always remains with it. So it has sufficient control over delegated legislation.
 Kerala State Electricity Board
vs
Indian Aluminum Co.

Again court reiterated that policy should be laid down in the Act itself.
Conclusion
 Lastly it can be said that delegated legislation is need of time in order to
supplement the Acts of Parliament but Parliament should create a
legislative framework within which executive has to exercise its discretion.
 Permissible Limit of Delegation of Legislative Power
 Power to legislate on Parliament has been conferred by Constitution.

 It is well settled that essential and primary legislative functions must be

performed by the legislature itself and they can not be delegated to the
executive.

 Essential legislative functions consist of determination of legislative policy.

 Once the essential legislative powers are exercised by the legislature, all
the ancillary and incidental functions can be delegated to the executive.

 Excessive Delegation is not permitted.

Example
 Commencement
Several statutes contain an ‘appointed day’ clause, which empowers the
government to appoint a day for the Act to come into force. In such cases, the
operation of Act depends on the decision of the government.

e.g. sec. 3 of the Bombay Rents, Hotel and Lodging House Rates Control, Act, 1947
provides that the Act shall come into operation on such date as the State
government may by notification in the official gazette appoint in this behalf.’
Here the notification comes into force when the notification is published in the
Official Gazette.
 Supplying Details
If the legislative policy is formulated by the legislature, the function of supplying
details may be delegated to the executive for giving effect to policy.

E.g. sec. 3 of the All India Services Act, 1951 authorizes the Central government
to make rules to regulate conditions of services.
 Inclusion
Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the Government to
extend the provisions thereof to different territories, person or commodities, etc.

E.g. the Transfer of Property Act, 1882 was made applicable to the whole of India
except certain areas, but the government was authorized to apply the provisions of
Act to those areas also.
Exclusion
There are certain statutes which empower the government to exempt from their
operation certain persons, territories, commodities.

Section 30 of the Payment of the Bonus Act, 1965 empowers the government to
exempt any establishments from the operation of Act.
Suspension
Some statutes authorize the government to suspend or relax the provisions
contained therein.

e.g. under section 48(1) of Tea Act 1953 the Central Government is empowered
under certain circumstances to suspend the operation of all or any of the provisions
of the said Act.

Modification
Sometimes, provision is made in the statute authorizing the executive to modify the
existing statute before application. This flexibility is necessary to deal with local
conditions.
Prescribing Punishment
In some cases the legislature delegates to the executive the power to take punitive
action
- but legislature must determine the maximum punishments which
the rule making authority may prescribe for breach of regulations.

- If such power is delegated to any authority other than the State or

Central Government, the exercise of power must be subject to the
previous sanction or subsequent approval of the State or Central
government.
Framing of Rules
A delegation of power to frame rules, bye-laws, and regulations etc. is not
unconstitutional, provided that the rules, bye-laws and regulations are required
to be laid before legislature before they come into force and provided further
that the legislature has power to amend, modify or repeal them.

Removal of difficulties
Power is conferred on the Government to modify the provisions of the existing
statutes for the purpose of removing the difficulties.
 Functions which can not be delegated

Essential Legislative Functions

Essential legislative functions cannot be delegated by the legislature to the

executive. Legislative policy must be laid down by the legislature itself.

Repeal of Law
Power to repeal a law is essential legislative function and therefore, delegation
of power to the executive to repeal a law is excessive delegation and is ultra
vires.
Modification
Power to modify the Act in its important aspect is an essential legislative
function and therefore, delegation of power to modify an Act without any
limitation is not permitted .

However, if the changes are not essential in character, the delegation is

permissible.
Exemption

The aforesaid principles applies in case of exemption also, 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.  

Removal of Difficulties
Under the guise of enabling the executive to remove difficulties, the legislature can
not delegate essential legislative functions to the executive, which could not
otherwise have been delegated.
Retrospective Operation

Parliament can pass any law prospectively or retrospectively subject to the

provisions of the Constitution. But giving an Act retrospective effect is essential
legislative function and it cannot be delegated.

Future Acts
The legislature can empower the executive to adopt and apply the laws existing in
other States, but it cannot delegate the power by which the executive can adopt
the laws which may be passed in future, as this is essentially a legislative
function.
Imposition of Tax

The power to impose a tax is essentially a legislative function. Under

Article. 265 of the Constitution no tax can be levied or collected save by
authority of law, and here law means law enacted by the competent
legislature and not made by the executive. Therefore, the legislature
cannot delegate the essential legislative function of imposition of tax to an
executive authority.
Ousting the Jurisdiction of Court

The legislature cannot empower the executive by which the jurisdiction of

courts may be ousted. This is purely a legislative function.

Offences and Penalty

The making of a particular act into an offence and prescribing punishment for
it is an essential legislative function and cannot be delegated by legislature to
executive.
However, if the legislature lays down the standards or principle to be followed
by executive in defining an offence and provides the limits of penalties, such
delegation is permissible.