DELEGATED

LEGISLATION
Legislative Power of Administration [Delegated Legislation]
Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power or to
act as his agent or representative. ‘Delegated legislation’ means exercising of legislative power
by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature.
According to Salmond, “Subordinate legislation is that which proceeds from any authority other
than the sovereign power.”
According to M.P Jain, this term can be used in two senses:
Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by
the Legislature.
The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed
on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation.
History of delegated legislation in India
◦ Charter Act of 1833
[Brought by EIC wherein Governor General in Council which was an administrative
body, assumed the powers of the executive. It would formulate laws and policies that
were to be followed by all the citizens irrespective of their nationality.
In Queen v. Burah, the Privy Council held that the office of the Governor-General in
Council was the supreme legislative authority and that it has ample power to transfer
certain duties to the provincial executors.]
◦ The Government of India Act, 1935
[ Act gave more power to the provinces and Governors appointed as the head of the
Executive]
◦ New Delhi Act of 1912
Delegated legislation under the Constitution of
India
Indian Constitution does not particularly speak of delegated
legislation, but it can be inferred from its language. It gives the
Council of States (Rajya Sabha) the power to form an All India
Service which will be responsible for carrying out the acts of the
legislature. It requires a two-thirds majority of the house.
Reasons for growth of Delegated Legislation
◦ Pressure upon time of Parliament
◦ Technicality in the matters
◦ Flexibility
◦ Emergency
◦ Experiment
◦ Complexity of modern administration
Classification of Delegated Legislation
◦ Title- Based Classification
◦ Discretion-based classification (conditional legislation)
◦ Autority based classification
◦ Nature based classification
Title- Based Classification

◦ Rule: The term ‘Rule’ is defines in the General Clauses Act,1879 as arule made in exercise of
power conferred by any enactment and shall include a regulation made as a ’rule’ under any
enactment. These rules may be made applicable to a particular individual or to the general public.
It may include rules of procedure as under the Atomic Energy Act, 1948 and also the rules of
substantive laws for eg: Environment Impact Assessment Rules 1994, 2006,2019, 2021
◦ Regulations: This term is not confined to delegated legislation. It means an instrument by which
decisions, orders and acts of the government are made known to the public. But in the sphere of
administrative rule making, the term relates to a situation where power is given to fix the date for
the enforcement of an Act, or to grant exemptions from the Act, or to fix prices, etc.
◦ Examples include Environmental Protection Agency regulations as well as rules that govern
the practice of medicine, law and engineering. An administrative action can be brought
against a doctor or lawyer who violates the state regulatory agency's rules. If found guilty,
the accused person might be censured, be fined, or have his or her license revoked.
Order: This term is used to cover various forms of legislative and quasi- judicial decisions.
Orders may be specific or general. Eg: An order issued by the Finance commission or Election
Commission
Bye-laws: The term has been confined to rules made by semi- governmental authorities
established under the acts of the legislatures. Eg: Bye laws for Solid Waste Management
Directions: The Constitution gives powers to the Central Govt to give directions to State Govt
for the execution of its laws. It is an expression of administrative rule making under the
authority of law or rules or orders made thereunder. These may be recommendatory. If,
mandatory, these have the force of law.
Scheme: The term refers to a situation where the law authorises the administrative authority to
lay down a framework within which the detailed administrative action is to proceed
The Committee on Minister’s Powers has recommended for the simplification of the
nomenclature, confining the term ‘rule ‘ to the statutory instrument regulating procedure, the
term ’regulation’ to describe the substantive administrative rule-making, and the term ‘order’
to instruments exercising executive and quasi-judicial decisions
Discretion-based classification (conditional legislation)
This classification is based on the discretion vested in the rule making authority. On the basis of
“discretion”, administrative rule making may be classified into subordinate and contingent or
conditional legislation.
In Field vs Clark case , where the impugned Act authorised the President by Proclamation to
suspend the operation of an Act, permitting free introduction into the US of certain products,
upon his finding that the duties imposed upon the products of the US were reciprocally unequal
and unreasonable. The US Supreme Court upheld the validity of the Act on the ground that the
President is a mere agent of the Congress to ascertain and declare the contingency upon which
the will of the Congress will prevail. The court further held that the congress cannot delegate its
power to determine some factors or state of things upon which the law intends to make its own
action depend.
Therefore, contingent or conditional legislation may be defined as a Statute that provides control
but specifies that they are to go into effect only when a given administrative authority finds the
existence of conditions defined in the statute itself. Conditional legislation is fact finding and
delegated legislation is discretionary.
Classification of Conditional Legislation
◦ Statute enacted by legislature, future applicability to a given area left to the subjective
satisfaction of the delegate as to the conditions indicating the proper time for that purpose
◦ Act, enforced, but power to withdraw the same from operation in a given area or in given
cases delegated to be exercised on subjective satisfaction or objective satisfaction of the
delegate as to the existence of requisite condition precedent
◦ Power exercisable upon the delegates satisfaction on subjective facts by a class of persons
seeking benefit of the exercise of such power to deprive the rival class of persons of
statutory benefits
◦ Conditional Legislation attracts principles of natural Justice
Authority based classification/ Sub-delegation
When the administrative authority transfers their law making power to some
other subordinate authority , a further power to issue rules, such exercise of rule
making power is known as sub-delegated legislation
A. K. Roy vs State of Punjab, in this case the power to initiate prosecution for
offences under section 20(i) of the Prevention of Food Adultration Act, 1954
had been given to the State Govt. The Act had not authorised sub-delegation of
power. Neverthless, under Rule 3 of the Prevention of Food Adultration Punjab
Rules 1958, the power of prosecution was delegated to the Food Inspector.
The Court held that subdelegation as ultravires the parent Act.
Nature based Classification
◦ It is based on the nature and extent of delegation
◦ The Committee on Ministers Powers distinguished two types of Parliamentary delegation
◦ Normal Delegation:
Positive – Where the limits of delegation are clearly defined in the enabling Act
Negative- Where power delegated does not include power to do certain things that is legislate
on matters of policy
Exceptional delegation:
Power to legislate on matters of principle policy
Power to amen Acts of Parliament of existing law
Power conferring such a wide discretion that it is almost impossible to know the limits
Power to make rules without being challenged in a court of law
Constitutionality of delegated legislation
It basically means the limits that are permissible within a Constitution of a country through
which Legislature with all his right can delegate its power of rule making to other agencies of
administration. The aim of extending the power of the government is to handle socio-
economic problem.
Position in USA [Field vs Clark: the power entrusted to one department should be exercised
exclusively by that department with encroaching upon the powers of another
Wagman vs Southard: A general provision may be made and power be given to those who are
act under such general provisions to fill up the details, the court made a distinction between
what may be termed as ‘legislative powers & the power to ‘fill in the details’ ]
Position in England [clear language by the statute, limits should be defined with equal
clearness, laying down of limits in the enabling Acts within which executive action must
work]
Position in India

Excessive delegation is unconstitutional

St. Johns Teachers Training Institute vs National Council for Teacher Education
Whether a particular legislation suffers from “excessive delegation” is a question to be
decided with reference to certain factors which may include
◦ Subject matter of the law
◦ Provisions of the statute including its preamble
◦ Scheme of the law
◦ Factual and circumstantial background in which the law is enacted
What is an essential legislative function and where is the policy of the law to be found
Harishankar Bagla vs State of M.P.
Under this case Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 authorised the
Central Govt to make rules for the purpose of maintaining or increasing supplies of essential
commodities and for securing equitable distribution at fair price. Section 6 further provided that the
orders made thereunder shall have effect notwithstanding anything contained in any law for the time
being in force. The Supreme Court held the delegation valid on the ground that Section 3 lays down
the legislative policy with sufficient clarity within which the Government can operate.
Charan Lal Sahu vs Union of India
In this case, the Bhopal Gas Disaster(Processing of Claims) Act, 1985 had been challenged on the
ground that without laying any policy and guidelines the Government has been authorized to conduct
suits and enter into compromises. The Supreme Court held that the Act was valid and that the State
had rightly taken over the exclusive right to represent and act on behalf of every person entitled to
make a claim, as a majority of the victims were poor and illiterate.
Consequently, the exclusion of the victims from filing their own cases was held to be proper. The
Court also held that the Act only deals with civil liability and as such does not curtail or affect rights in
respect of criminal liability.
Hamdard Dawakhana vs Union of India
Parliament passed the Drugs and Magic Remedies(Objectionable Advertisements) Act, 1954 to
check the mischief being done to innocent patients suffering from certain incurable diseases through
advertisements claiming magic remedies for such diseases. Section 3 of the said Act laid down a list
of diseases for which advertisements were prohibited and authorised the Central Government to
include any other disease in the list.
This is the first case in which the Supreme Court struck down an Act on the ground of excessive
delegation of legislative powers. The court held that nowhere had the legislature laid down any
policy for guidance to the government in the matter of selection of selection of diseases for being
included in the list.
Jalan Trading Co (P) Ltd vs Mill Mazdoor Sabha
Under this case Section 37 of the Payment of Bonus Act, 1965 authorised the Central Government
to provide by order for removal of doubts or difficulties in giving effect to the provisions of the Act.
The Court held that Sec 37 ultra vires on the ground of excessive delegation and observedthat the
Act authorised the government to determine for itselfwhat the purposes of the Act are which in
substance would amount to exercise of legislative power that cannot be delegated.
Kerala Samsthana Chethu Thozhilali Union v. State of
Kerala & Ors.
Sale of Arrack was banned by the Kerala State Government on 1st April 1996.
To rehabilitate people who lost their jobs due to the ban were given a
compensation of Rs. 30,000, among other things under the Abbari Workers
Welfare Fund Board Act. After a lapse of six years from the date of ban on the
sale of arrack, the government framed Rule 4(2) of the Kerala Abkari Shops
Disposal Rules 2002 of Kerala Abkari Act, 1902. Under this rule it was made
mandatory for each licensed toddy shop to absorb one arrack worker. This
benefit given to the arrack workers was also extended to the toddy workers, of
the toddy shops that were closed having no limit in number for absorption. The
benefit was given only to those workers who were registered with the Toddy
Workers Welfare Fund Board as on 31st March 2000.
Contention Raised by the Toddy Workers
◦ Rules which are made in conformity of the provisions of any act
has to be within the scope of the parent legislation and cannot in
violative of the legislation
◦ Delegated legislation has to conform to the legislative policy
which is laid down by the plenary legislation and
◦ The social welfare aspect of the workers is governed by the
Industrial Dispute Act, under which the State has no competency to
make the impugned rules
Contentions raised by the State
The State argued that the state government has the power to enact the
rules in as much as the state has the power to grant a licence to the
toddy workers under the Abkari Act.
The State merely parts with a privilege which is exclusively vested
in it and in that view of the matter if, in terms of the policy decision
of the State, arrack workers were to be rehabilitated, it could direct
employment of unemployed arrack workers.
Judgment
◦ The court recognised that the state government has the general
power to enact delegated legislation under S. 29(1) of the Abkari
Act.
◦ Supreme Court held that the impugned rules neither promote the
legislative policy nor secures the objective of the Act.
Rehabilitation of the dispossessed worker is not within the object or
legislative policy of the Act.
Control of Delegated Legislation
◦ Parliamentary or Legislative Control
◦ Procedural Control
◦ Judicial Control
Parliamentary or Legislative Control

◦ Direct General Control

Through debate on the Act which contains delegation
Through question and notices
Through moving resolutions and notices in the House
Through vote on grant
Through a private Member’s Bill seeking modifications in the parent Act, or through a debate at
the time of the discussion on the address by the President to the Join session of the Parliament,
Members may discuss delegation
◦ Direct Special Control
◦ Indirect Control
 Procedural Control

◦ Pre publication and consultation with an expert authority

◦ Publication of delegated legislation
◦ Consultation with affected persons
◦ Laying of rules
Raza Buland Sugar Co. vs. Rampur Municipal Council
Scheme of the Act
Intention of Legislature
Language used for drafting purpose
Inconvenience caused to the public at large scale
Consultation with affected persons

This control mechanism makes administrative rule making a democratic process

and increases its acceptability and effectivity.
◦ Official consultation with a named body: The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 provides for prior
consultation with RBI before making rules under that Act
◦ Consultation with administrative boards
◦ Consultation with a statutory board in charge of a particular subject
◦ Consultation with interested persons
◦ Preparation of rules by the affected interests
Judicial Control

In India the invalidity of delegated legislation may arise

from any of the following reasons:
◦ The enabling Act or delegating statute being
unconstitutional.
◦ The subordinate legislation violating the Constitution.
◦ The subordinate legislation being ultra vires the
delegating Act.
In the control-mechanism, judicial control has emerged as the most
outstanding controlling measure.
Judicial control over delegated legislation is exercised by applying two tests:
◦Substantive ultra vires
◦Procedural ultra vires

In re Delhi Laws Act

The exercise of delegated law-making power invalid because the enabling
Act exceeded the constitutional limits in permitting the Executive to repeal a
law existing in the area
Hamdard Dawakhana v. Union of India

Section 3(d) of the Drugs and Magic Remedies (Objectionable

Advertisement) Act was declared ultra vires. The ‘whole Act was not
struck down, because the other provisions were found to be good
law. The Court held that the words used in Section 3(d) do not lay
down any certain criteria or proper standard and surrender unguided
and uncanalised power to the Executive.
There must be definite boundaries within which the powers of
administrative authority are exercisable. Delegation should not be so
indefinite as to amount to any abdication of the legislative function.
Dwarka Prasad. v. State of U.P.

It is an instance of subordinate legislation being in conflict with

Constitution and hence was ultra vires. In this case clause 3(1) of
U.P. Coal Control Order, 1953 was held ultra vires because it gave
unrestricted power to the State Controller to make exceptions and
even if he acted arbitrarily there was no check over him and no
redress was available against it. The Court held that it is violative of
Article 19(1 )(g) and could not be justified as a reasonable restriction
under clause (6) of the same Article.
Air India v. Nargesh Meerza
In this case the regulation provided for the termination of services of
an air-hostess if she marries within first four years of her service or
on the first pregnancy. The Court found the first condition all right,
i.e., no marriage within first four years of her service but so far the
second condition of pregnancy is concerned, it was held to be "most
unreasonable and arbitrary provisions of service regulation made by
Air India which has shaken the conscience of the court. The Court
observed that the regulation amounts to compelling the air-hostesses
not to have any children and thus it interferes with and diverts the
ordinary course of human nature.