lecture on Delegated legislation

By Rupaksh Sharma
Faculty of law
IUD
 Topic to be discussed
 Introduction
 Definition
 Subordinate legislature and supreme legislature
 Historical growth
 Reasons for growth of delegated legislature.
 Introduction
 Traditionally, the function of executive is to administer the law enacted
by the legislature and legislature power must be executed exclusively by
legislator who are responsible for electorate.
 Apart from pure administrative function, the executive performs many
legislative and judicial function.
 Rightly stated , a statue book will be misleading unless its read alone with
delegated legislation (D.L.) Which amplifies and supplements the law of
the land.
 In addition to the common law and statue law , its includes subordinate or
delegated legislation. It comprises order of council , departmental circular,
rules, regulation, scheme and bye-laws made in exercise of executive
power.
 In US , doctrine not accepted in theory and in practice legislature has
delegated powers to executives.
 Example.
 Definition
 Difficult to provide any prescribe definition.
 Delegation is an act of making or commissioning a delegate. It generally
means parting of powers by the person who grants the delegation and
conferring of an authority to do things which otherwise that person would
have to do himself.
 Simple meaning – when a function of legislation is entrusted organ other
than the legislature itself, the legislation made by such organ is called
delegated legislation.
 According to Jain and 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 .”
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 In the first application , its means
that the authority making the
legislation is subordinate to the
legislature.
 Also known as subordinate
legislature.
 The power is limited by the
statue and its valid only so far as
it keeps within those limits.
 In the second connotation , D.L
means includes all laws, orders,
rules byelaws etc.
 Example – The object of
minimum wages acts is to
provide certain employment. The
central government is
empowered to add any other
employment in the schedule, if
in the opinion, act should be
applied.
 Reasons for growth of delegated legislation
 Many factors are responsible for the rapid growth of
delegated legislation in every modern democratic
society.
 Given up of traditional theory of “laissez faire” and
police state has been changed to welfare state.
 Functions has been increased .
 Consequently, DL has become essentials and
inevitable.
 According to the committee on minister’s powers-

 The factors responsible for the growth of the DL are –

a) Pressure upon parliamentary time –
 Due to the bulk of legislation its not possible for the
legislature to devote sufficient time to discuss all the matters
in details.
 Formulation of general policies – The Skelton.
 Empower the executive to fill in the details – Giving flesh
and blood to the Skelton so that it can live.- by issuing of
necessary laws, rules and regulations.
b) Technicality –
 Assistant of an expert is required.
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c) Flexibility –
Its impossible to foresee all the contingencies.
d. Experiment
e. Emergency
 Delegated power in England

 In England parliament is supreme and therefore unhampered by any

constitutional limitations. Can confer wide legislative powers on the
executives.
 Principles on which the practice of delegation must conform.
 The committee on ministers powers in its third recommendation defines –
when discretion is conferred its limits should be defined.

2. USA –

In the USA, the doctrine is based on doctrine of separation of powers and its
necessary corollary “ delegatus non protest delegates”.
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 Therefore legislative power cannot be delegated .Hence the syllogism of prof.
Cushman:-
 Major Premise – legislative power cannot be constitutionally delegated by
congress
 Minor premise- its essential that certain powers be delegated to administrative
officers and regulatory commissions.
 Conclusion – Therefore the powers thus delegated are not legislative powers.

Case laws –
 Panama refining Co. vs Ryans
 Schechter Poultry crop vs. United states
 Constitutionality of administrative rule making in
India

 The law making power may be delegated can be studied in

three different periods –
1. When the Privy Council was the highest court of appeal
2. When federal court became the highest court of Appeals
3. When supreme court become the highest court
 When the Privy Council was the highest court of appeal –
The privy council was the highest court for appeal from India
till 1949.
The question of constitutionality came before the Privy
council in the case of R. Vs Burah ILR 4 Cal 1879
 Case law – R. vs. Burah
 The Act was passed in 1869 by Indian legislature to Remove Garo hills from the civil

and criminal jurisdiction from Bengal and vested the power of civil and criminal

administration in an officer appointed by lt. Governor of Bengal.

 The LT governor was further authorized by section 9 of the act to extent the provision

of this act with changes to khasi and jaintia hills.

 One Burah was tried for murder by the commission and was sentenced to death

 The Calcutta high court declared sec.9 as unconstitutional delegation of the legislative

powers on the ground that the Indian legislature is a delegate of British parliament.

Therefore a delegate cannot further delegates.

 The privy council on appeal revise the judgment upheld the constitutionality of Sec 9

on the ground that its merely a conditional legislation.

 Emperor vs Benoari AIR 1945 pc
38
 Upheld the constitutionality of an ordinance passed by the governer general for

establishment of a special court. And delegated power to provinces at any time they deem

fit .

 Therefore during the period of PV, the question of delegated legislation was uncertain .

2. When federal court become the highest court –

 Jatinder Nath Gupta Vs Province of Bihar

3. When supreme court became the highest Court of appeal

The decision of Jitender nath Case created doubts , in order to clarify legislature in the matter of

delegation of legislative functions, the president of India , sought the opinion of the court on

constitutionality of Three matters .

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 section 7 of Delhi laws act 1972 delegated to provincial government the

power to extent to Delhi area with such restriction and modification in

any part of British India.

 Section 2 of Ajmer Merwara Act 1947 delegated the power to extent the

province any law in any other province with modification and restriction.

 Section 2 of part C states laws act 1950 delegated legislation to extent

part C states with modification and restriction.

 Mr. MC setalavat tried to proved before the courts that there is an

implied delegation of legislative powers on the basis of separation of

power theory and delegatus non protest delgates.

 Functions Which may be delegated
The Functions which may be delegated to the executive by the legislation are
as follows-
1. Commencement –
Several statues contain an “ appointment day” clause which empower the
government to appoint a day for the act to come into force.
 Operation of facts depends on the decision of the government.
E.G. section 1(3) of consumer protection act 1986 provides that the act shall
come into force on such date as CG may by notification appoint.
 On validity of these provision sir Cecil Carr Remarks “ the legislature
provides the Gun and prescribe the target, but leaves to the executive the
task of pressing the trigger.”
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2. Supplying Details –
The policy formulated by the legislature and the supplying details may
be delegated to the Executive for giving effect to the policy.
 Most usual form of legislation.
 Considered to be skeleton legislation and legislature lays down the
general principle of statue.
 Delegation of An ancillary function in the aid of the exercise of
legislative function.
 Example – All India Services Act. Section 3 authorizes CG to make
rules to regulate conditions of services in the all India services.
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3. Inclusion-
Sometimes legislature passes the act and makes it applicable, in first instance to some
areas and class of persons but empowers the government to extent the provision thereof
to the different territories.
Examples –

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 provision of the act to those
area also.

4. Exclusion-
There are some statue which empower the government to exempt from their operation
certain persons, territories, commodities etc.

Example – Section 36 of Payment of Bonus Act 1965 empower the govern. To exempt
any establishment or class of establishment from the operation of the act.
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5. Suspension
Some statues authorize the government to suspend and relax the provisions
therein. Section 48 of tea act 1953 ,CG can suspend any or all provisions
operation under it.
6. Application of Existing Laws-
Adoption and application of statues existing in the other states without
modification to the new area
7. Modification –
sometimes provisions is made in the statue authorizing the executive to
modify the existing statute before application. This is really a drastic power
as it amount to an amendment of the act which is legislative power, but
sometimes it important to deal with the local conditions.
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 Example – thus under the power conferred by Delhi law act, 1912 the CG extended
the application of the Bombay agriculture Debtors relief act 1947 to Delhi.
 While conferring the power on executive to modify the statue two factors need to be
considered –
o The need and necessity to delegate such power
o The danger or risk of misuse of such power by the executive.
 Therefore its necessary for legislative to formulate policy clearly.

8. Prescribe punishment-
Delegation of Power to take punitive actions. Example Section 37 of Electricity
act 1910 the Electricity board is empower to prescribe punishment for breach of
the provisions of the act subject to Maximum punishment laid down in the act.
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9. Henry VIII clause ( Removal of difficulties) –
 Power is conferred to the government to removal of difficulties in the existing
statues.
 Legislature cannot foresee the difficulties
 The executive is therefore to empower to make necessary actions.
 Such condition can also be applicable to a new area or where the socio economic
condition is different.
 Two types of Difficulties –
 Narrow – Empower the executive to remove the difficulties consistent with the
parent act . Section 34 of the Administrative tribunal act 1985 .
 The another type of removal of difficulties is very wide and authorize the
executive in the name of the removal of difficulties to modify even the parents act.
 This provision can be found in The Indian constitution itself
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