DELEGATED LEGISLATION

SESSION LEARNING OUTCOME

At the end of the session, students must be able to:
● Understand the meaning of term ‘Delegated Legislation’
● Understand the reasons for need of Delegated Legislation
● Understand the concepts of Sub-delegation and Conditional
Delegation
● Reflect upon the permissible limits set upon the exercise of power
to delegate
History

● Fear of too much centralisation as a cause

● Local Self government & municipal administration- first occasion for

delegation

● Two World Wars- emergency legislation : demand of special speed

between decision & action
MEANING
DEFINITION BY SALMOND

Subordinate Legislation i.e., Delegated Legislation is that which

proceeds from any authority other than the sovereign power, and is
therefore dependant for its continued existense and validity on some
superior or supreme authority.
DONOUGHMORE COMMITTEE
Definition by Committee on Minister’s Power (Report in 1932)
Delegated Legislation can be defined in two ways:
1. The exercise of legislative power by the executive under the
authority delegated to it by the Parliament
2. The rules, regulations, bye-laws, etc. made by the executive in
the exercise of the law making power delegated to it by Parliament
Committee on Subordinate Legislation: Lok
Sabha
FIRST REPORT- TWO RECOMMENDATIONS

● Bills containing proposal for delegation- to be accompanied by a

memorandum containing details & scope

● Uniformity should be secured in the provisions delegating legislative

powers in various Acts
Related Terms

● Parent Act/Primary/Supreme Legislation: Statute enacted by the

Legislature which confers the legislative power upon the executive

● Child/Subordinate Legislation: Rules, regulations etc. made by the

executive in pursuance of the legislative power conferred by the
Legislature.
FACTORS FOR GROWTH
Pressure upon Parliamentary Time
FACTORS FOR GROWTH
Pressure upon Parliamentary Time
● Expanding horizons of welfare state activity
● Impossibility to lay down legislative details
● General policy/skeleton to be formulated by Legislature
● Executive is given the power to fill in the details
FACTORS FOR GROWTH
Technicality of subject matter
● Incapacity of legislator to pass legislations of technical nature
● Requirement of assistance of expert
● Executive provides the required expertise
● Example: Taxation, Medical laws, Electricity
FACTORS FOR GROWTH
Contingency and Emergency
● Impossibility to foresee all contingencies
● Executive provides support for exigent action
● Legislative process is slow and cumbersome
● Emergency situations require expeditious action [breakdown of law
& order, strikes etc.]
● Executive can act in short notice but legislature cannot
FACTORS FOR GROWTH
Scope for Experiment
● Supreme legislation is rigid and legalistic
● Executive, being flexible and functional, allows for experiments
● Saves time of Legislature and allows correction of mistakes
● Provides for constant adaptation to unknown future conditions
FACTORS FOR GROWTH
Critical Insight

● DL both praised & criticised

● Necessity, Inevitable, useful, indispensable

● abdication of power & escape from duty

● Permissible limits and controls required

Types of Delegation
● Enabling Act: bringing an Act into operation

● Extension & Application Act: to a territory; for a specified duration

of time; to class of persons etc.

● Suspension and Exemption: power to make exemptions [territory/

subject]

● Alterations & modifications: Power to change schedule- add/ delete

items
Manner of delegation

● Simple Statutory provision- general rule making power

Example : Section 78 Indian Forest Act

○ Rules when to have force of law.-All rules made by the State Government
under this Act shall be published in the Official Gazette, and shall
thereupon, so far as they are consistent with this Act, have effect as if
enacted therein.
Other Requirements- act as Controls

• Requirement of Laying on the table of Parliament

• Requirement of prior Publication in local newspapers to take

objections & suggestions

• Requirement of Publication in Official Gazette post finality

• Requirement of prior consultation with affected interest groups

Stages of delegation

1. Drafting of Bill proposing delegation: intelligible directions & proper

assimilation; careful & unambiguous language; what & how much
delegation

2. Rule Making: authority responsible; procedure to be followed;

reasonable rules consistent with the Act

3. Publicity of the rules: prior & post; suggestions & objections

Statutory Illustration
Factories Act, 1948

Section 112. General power to make rules: The State Government

may make rules providing for any matter which, under any of the
provisions of this Act, is to be or may be prescribed or which may be
considered expedient in order to give effect to the purposes of this Act.
Analysis
● Wide power and phrased in general language
● No specification of authority or procedure
● Limitations with regard to:

1. subject: matter under provision of Act

2. Object: to give effect to the purpose of the Act

SUB DELEGATION

● Meaning: Further delegation of legislative power by executive to

another subordinate authority

● Delegatus non potest delegare: sub-delegation unauthorised unless

permitted expressly or by necessary implication by the statute

● If parent Act silent on matter- sub-delegation cannot be made

Conditional Legislation
Definition by Hart

A statute that provides controls but specifies that they are to go into
effect only when a given administrative authority fulfils the existence
of conditions defined in the statute itself.
Conditional Legislation

● Law made by Legislature is full and complete

● No element of ‘delegation of legislative power’

● Act brought in force only when executive fulfils the conditions set in
the statute

● Role of executive limited to determining whether conditions have

been fulfilled: area/ time etc.
Conditional Legislation: Criticism

● Fiction to get away from doctrine of SOP

● Pre-independent India- concept of delegation of legislative power

not accepted/ recognised

● DL now recognised: concept of conditional legislation becomes

redundant

● DL inclusive of concept of conditional legislation

PERMISSIBLE LIMITS: An Introduction

In Re: Delhi Laws Act case, 1951 [seven judge bench]

● Reference made by President under Article 143 of the Constitution

● Central question: Constitutionality of delegated legislation

PERMISSIBLE LIMITS: An Introduction

In Re: Delhi Laws Act case, 1951 [seven judge bench]

● Powers delegated to Central government: extend, modify, restrict.

Repeal

● Issue: Was such delegation by Indian Parliament permissible?

● Court set the limits on the exercise of power to delegate

POINTS FOR REFLECTION

1. Should Sub-delegation be permissible?

2. How is conditional legislation different from delegated legislation?

3. Will the legislative power in the hands of executive be misused?

4. How can this power be safeguarded?

5. When will the exercise by executive become ‘excessive’?

Thank You!