DELEGATED LEGISLTATION

Synopsis

I. INTRODUCTION Validity of Sub-delegation

II. WHAT IS DELEGATED VIII. CONTROL OF DELEGATED
LEGISLATION LEGISLATION
III. TYPES OF DELEGATED A. Legislative Control
LEGISLATION
B. Judicial Control (Doctrine of ultra
IV. ORIGIN AND DEVELOPMENT vires)
V. NEED FOR DELEGATED 1. Substantive ultra vires
LEGISLATION
a. Parent Act is unconstitutional
VI. LIMIT AND CONSTITUTIONALITY
b. Delegated Legislation is ultra
OF DELEGATED LEGISLATION
vires the Constitution
England
c. Delegated legislation is ultra
USA vires the Enabling or Parent Act
India 2. Procedural ultra vires
In Re: Delhi Laws Act IX. DISADVANTAGES OF DELEGATED
LEGISLATION
VII. SUB DELEGATION
X. CONCLUSION

Introduction
In modern times, the administrative authorities are conferred wide quasi-legislative powers and
functions. The development of the legislative power of the administrative authorities in the form of
delegated legislation occupies a very important place in the study of administrative law.

Although the Constitution of India empowers Legislature to make laws for the country, but keeping in
mind various multifarious activities of a welfare State, it is not possible for the legislature to perform
all the functions. In such situation, the delegated legislation comes into the picture.

What is Delegated Legislation

Delegated Legislature is one of the essential elements of administration whereby the executive has to
perform certain legislative functions.

Delegated legislation may be defined as the legislation made by the authority other than the
Legislature acting under the authority delegated to it by the Legislature. In the case of

Agricultural Market Committee

v.

Shalimar Chemical Works Ltd.

The Supreme Court stated that delegated legislation is that legislation which proceeds from any
authority other than the sovereign power and is dependent for its continued existence and validity on
some superior authority.

According to JAIN AND JAIN the term delegated legislation is used in two senses

(a) the exercise of the legislative power by a subordinate agency delegated to it by the Legislature;
and

(b) the subsidiary rules themselves which are made by the subordinate agency pursuant to the
exercise of the legislative power delegated to it by the Legislature. E.g. rules, regulations orders,
bye-laws etc.

Administrative law is more concerned with the delegated legislation used in the first sense i.e. the
exercise of the legislative power by a subordinate agency delegated to it by the Legislature.

Delegated legislation is also called subordinate legislation and the rules, regulations etc. made by the
administrative authorities are called subordinate laws. The Act by which the law-making power is
delegated to the executive or administrative authority is called Enabling Act or Parent Act.

Types of Delegated Legislation

The delegated legislation has been classified by different authors on different basis.

On the basis of nomenclature, delegated legislation may be classified into Rules, regulations, bye-
laws, orders, directions, and scheme.

On the basis of purpose of the delegated legislation, it may be classified as follows

1. Power to bring the Act into operation

It empowers the executive to determine the date from which the Act shall come into force.
Example S. 1(3) of the Consumer Protection Act states that It shall come into force on such
date as the Central Government may, by notification, appoint and different dates may be
appointed for different States and for different provisions of this Act
2. Power to extend the scope of the Act
It empowers the delegated authority to extend the duration of the Act, or expand the scope as
regards the territorial extent, subject-matter, or the persons to whom the Act shall apply.
Example S. 27 of the Minimum Wages Act.
3. Power to exclude persons or objects, etc. from the operation of the Act
It gives the executive authority the power to exempt the application of the Act in relation to
certain persons, objects etc.
Example S. 101 of the Maharashtra Land Revenue Code empowers the State Govt. to exempt
any land from assessment under the Code.
4. Power to modify the Act or statute
 This power is nothing but a combination of the power to extend the scope of the Act and the
power to exempt application of the Act. Such delegation is held to be valid if there is no change in
the legislative policy of the Act.
5. Power to remove difficulties
It is an authority given to the executive to modify the statute itself for removing the difficulty in
putting the statute in operation. This is also known as Henry VIII type of delegation because
during the period of King Henry VIII, several laws in England authorised the executive to modify
or amend the Parent Act. In 1929, LORD HEWART in his book The New Despotism has severely
criticised this form of delegation.
6. Power to make rules, etc. to carry out purposes of the Act
Often the Parent Act authorises the delegate to make rules etc. to carry out the purposes of the
Act. Such delegation is held valid.
Example S. 157 of the Trade Marks Act, 1999 empowers the Central Govt. make rules to carry
out the provisions of the Act.
7. Power to determine the issue as to whether or not conditions required to be fulfilled for
operation of the Act have been fulfilled
In this form of delegation, the law is full and complete when it leaves the Legislature but its
operation is made dependent upon the fulfilment of certain condition, and the executive is given
only the power to determine whether such condition has been fulfilled or not. This is also known
as conditional legislation

Origin and Development

Ever since statutes came to be enacted by Parliament, there has been delegation of legislative
function.

For example in 1531, by the Statute of Sewers, certain law-making powers were delegated to the
Commissioner of sewers. In 1539, by enacting the Statute of Proclamations the Parliament delegated
the law-making power to the British King, Henry VIII.

In the 18th and 19th centuries, imperialism and colonialism further advanced the cause of delegation.
The process of delegation was accelerated by the rationalisation of the Royal prerogatives, the Crown
Writs, Orders in Council and departmental Regulations.

During the 20th century, the two World Wars are responsible for an unprecedented increase of
delegated legislation on the ground of emergency. These wars demanded a special speed in law-
making which was devoid of any time lag. As a result emergency legislation by the executive became
a normal feature of law-making.

After the Second World War, there was an advent of the doctrine of laissez-faire and the
establishment of a welfare State. In a welfare State, the activities of the State have increased
exponentially. The legislature has been over burdened and is not in a position to enact all the
provisions of the legislation.

Therefore with the manifold increase in the functions of a State, delegated legislation has become a
present-day necessity.

Need for Delegated Legislation (Advantages)

In the words of FAZAL ALI, J. in the Re: Delhi Laws Act

Delegated legislation has become a present day necessity and it has come to stay. It is both
inevitable and indispensable

Delegated legislation is important because of several reasons. They are

1. Delegated Legislation reduces the burden of already overburdened Legislature by enabling the
executive to make or alter the law under the authority of Legislature. Thus, this helps the
Legislature to concentrate on more important matters and frame policies regarding it.

2. It allows the law to be made by those who have the required knowledge and experience. For
instance, a local authority can be permitted to enact laws with respect to their locality taking into
account the local needs instead of making law across the board which may not suit their particular
area.

3. The process of delegated legislation also plays a significant role in an emergency situation since
there is no need to wait for particular Act to be passed through Parliament to resolve the particular
situation.

4. Delegated legislation often covers those situations which have not been anticipated by the
Parliament during the time of enacting legislation, which makes it flexible and very useful to law-
making. Delegated legislation is, therefore, able to meet the changing needs of society and also
situations which Parliament had not anticipated when they enacted the Act of Parliament.
Flexibility and expediency are the two essential elements for a good government.

5. Sometimes public interest may demand that provisions of law should not be made public until the
time fixed for its enforcement is ripe. Delegated legislation seeks to attain this objective
efficiently. The examples are control public exchange, import and export policy etc.

Limit and Constitutionality of Delegated Legislation

England

In England, Parliament is sovereign and it can delegate its law-making power to the executive or any
other agency to any extent. The limit of delegation is an issue to be determined by Parliament itself.
USA

In USA, the doctrines of separation of powers and delegatus non potest delegare (a delegate cannot
further delegate his power) operate. They create some obstacles in the delegation of legislative power
by the legislative to the executive or any other authority.

The US Supreme Court has made it clear that the doctrine of separation of powers is an essential
principle underlying the Constitution. This implies that the executive cannot exercise functions of the
legislative body.

Furthermore, as the Congress gets its legislative power from the people of USA, it is a delegate of the
people; and therefore under the doctrine of delegatus non potest delegare it cannot sub delegate its
legislative powers to the Executive.

In spite of these doctrines, the power of the Congress to delegate its legislative powers to the
ececutive has been recognised, subject to the fulfilment of certain conditions. Thus the Congress can
delegate its legislative powers to the executive if the Congress lays down the legislative policy and
prescribes the sufficiently definite standards to guide the delegate.

India

In India, the position is similar to that of in USA. That is, there can be delegated legislation to the
extent that only non-essential legislative functions can be delegated. Even during the pre
Independence era, the Privy Council in the case of R. v. Burrah held that a delegated legislation in the
form of a conditional legislation is valid.

However the decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar created a
doubt about the delegation of legislative power. In this case, the validity of S. 1(3) of the Bihar
Maintenance of Public Order Act was challenged. The said provision empowered the Provincial
Government to extend the life of the Act by one year with such modifications as it may deem fit. The
Federal Court held that the power of extension with modification is unconstitutional delegation of
legislative power because it is an essential legislative Act.

But the Supreme Court in Inder Singh v. State of Rajasthan expressly dissented from the
abovementioned view and held that the minority view in Jatinder Naths case was correct. Therefore
such a provision authorising the executive to bring an Act into force is valid.

In Re: Delhi Laws Act [AIR 1951 SC 332]

The decision in Jatindra Naths case created doubts about the limits of delegated legislation.
Therefore, in order to clarify the position of law for the future guidance of the legislature in matters of
delegation of legislative function, the President of India sought the opinion of the Court under Article
143 of the Constitution. The matter was heard by a seven Judge Bench of the Supreme Court.
Facts

In this case, the validity of Section 7 of the Delhi Laws Act, 1912, Section 2 of Ajmera-Merwara
(Extension of Laws) Act, and Section 2 of Part C States (Laws) Act was challenged. These provisions
conferred on the executive the powers of extension and modification of any enactment to any area
within the jurisdiction and control of the executive.

Issues

The questions of reference in this case were

1. Whether section 7 of the Delhi Laws Act ultra vires the Legislature which passed the said
Act?
2. Whether section 2 of the Ajmera-Merwara (Extension of Laws) Act ultra vires the Legislature
which passed the said Act?
3. Whether section 2 of the Part C States (Laws) Act ultra vires the Parliament?

Held

1. Section 7 of the Delhi Laws Act and Section 2 of the Ajmer-Merwara Act were held to be
intra vires the Legislatures which passed the Acts and therefore they were valid.
2. The first part of Section 2 of the Part C States Laws Act was held to be intra vires and valid
but the second part of S. 2, which empowered the Central Government to repeal or amend any
corresponding law which was for the time being in force applicable to Part C States.

The Supreme Court further held that

1. The doctrine of separation of powers is not a part of the Constitution.

2. Indian Parliament is never considered as an agent of anybody and therefore doctrine of
delegatus non potest delegare has no application
3. Parliament cannot abandon its legislative powers by creating a legislative body and therefore,
while entrusting powers to an outside agency, it must see that such agency acts as a
subordinate authority and does not become a parallel legislature.
4. Power of delegation is necessary for, and ancillary to the exercise of legislative power.
5. The limitation upon delegation of power is that the legislature cannot part with its essential
legislative power that has been expressly vested in it by the Constitution. Essential
legislative power means laying down the policy of the law and enacting that policy into a rule
of conduct.

In short, non-essential legislative functions may be delegated but the essential functions cannot be
delegated. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or
a power to fill up the details.
Further in the case of Registrar of Co-op. Societies v. V.K. Kunhambu it was held that while the
power to legislate includes the power to delegate, but delegation should not be excessive or
unlimited.

Whether any particular legislation suffers from Excessive Delegation has to be decided by courts
having regard to the subject-matter, the scheme, the provisions of the statute including its preamble,
and the facts and circumstances in the background of which the statute is enacted.

Sub Delegation [Separate Short Note]

Sometimes the Enabling Act or the Parent Act (i.e. the Act making delegation of the legislative
power) authorises the delegate not only to make legislation but also to delegate the law making power
to other authority. For example, under S. 94A of the Employees State Insurance Act, the ESI
Corporation or its Standing Committee is given the power to delegate all or any of its powers and
functions in relation to such matters, and subject to such conditions as may be specified, to any officer
or authority subordinate to the Corporation. This is called sub-delegated legislation or sub-delegation
of the legislative power.

The Essential Commodities Act may also be mentioned as an example of sub-delegation. S. 3 of the
Act confers the rule making power on the Central Government and S. 5 of the Act empowers the
Central Govt. to delegate further this power to its officers or to the State Government or to the officers
of the State Govt.

Validity of Sub-delegation (Delegatus non potest delegare)

Sub-delegation will be valid only when the Parent Act or the Enabling Act authorises the delegate to
sub-delegate its law making power to another authority or body. This is based on the maxim delegatus
non potest delegare which means that a delegate cannot delegate further. Since the delegated
authority derives its law-making power from the Legislature, the power to sub-delegate must also be
derived from such Legislature.

If the Parent Act does not provide for the power of sub-delegation, then the delegation of the
legislative power by the delegated authority to a subordinate authority will be invalid as it is beyond
the scope of the power of the delegated authority.

The power of sub-delegation may be express or implied by the provisions of the Parent Act. Express
provisions may be made as in the case of the ESI Act or the Essential Commodities Act. As a general
rule, if the Parent Act is silent on the issue of sub-delegation, the sub-delegation should not be made.
However there may be an implied provision for sub-delegation. As noted by S.A. DE SMITH,

the maxim delegatus non-potest delegare implies that a discretion conferred by statute is prima facie
intended to be exercised by the authority on which the statute has conferred it and by no other
authority. But this intention may be negatived by any contrary indications found in the language,
scope or object of the statute.

Control of Delegated Legislation

Although delegated legislation has become inevitable, it is a necessary evil. If this evil is not properly
controlled, it will make the executive a tyrant. Uncontrolled and unguided delegation may result in the
abandonment of the essential legislative functions by the legislature and the development of an
arbitrary executive power. Thus there is great need of the control of the exercise of the delegated
legislation.

Legislative Control
JAIN AND JAIN state that it is the function of the legislature to legislate, but if it seeks to give this
power to the executive because of some circumstances, it is not only its right, but also its duty as a
principal to ensure that its agent i.e. the executive carries out the functions entrusted to it within the
prescribed limits.

The Legislature making the delegation exercises its control over the delegated legislation in several
ways

1. The Rules of Procedure and Conduct of Business of the Legislature may provide that a Bill
containing proposal for delegation of legislative power must be accompanied by a
memorandum explaining such proposal.
2. The Rules and Regulations framed by the administrative authorities may be laid on the table
of the Legislature.
3. The third method of legislative control is that of Committees on subordinate legislation. In
India, two committees on subordinate legislation have been established one in Lok Sabha
and other in Rajya Sabha. The main function of these Committees is to scrutinise the
delegated legislation and report to the House, whether the power delegated is being properly
exercised by the delegate.

Judicial Control (Doctrine of ultra vires)

In India, the legislatures both at the Centre and in the States are not sovereign. The Constitution of
India is the supreme law of the land and all the legislations including delegated legislation are
required to be in conformity with the Constitution. The legislation which violates the provisions of the
Constitution will be invalid. The same principle is relied upon by Courts to control abuse of delegated
legislation.

For the purpose of controlling delegated legislation, the Courts often apply the doctrine of ultra vires.
The doctrine of ultra vires consists of two words, ultra and vires. Ultra means beyond and vires
means powers. Thus the expression ultra vires means an act beyond the powers.
According to the doctrine of ulta vires, the delegated legislation must not go beyond the scope of the
Parent Act and if it is found to be beyond the scope of the Parent Act, it would be ultra vires and void.

The doctrine of ultra vires may be discussed under the following heads

A. Substantive ultra vires

B. Procedural ultra vires

A. SUBSTANTIVE ULTRA VIRES

If the delegated legislation goes beyond the scope of the authority conferred on the delegate, or if it is
in conflict with the Parent Act, it is called substantive ultra vires. Following are the kinds of
substantive ultra vires

1. Parent Act is unconstitutional

If the Parent Act violates the limits of the Constitution, it will be declared to be unconstitutional and
void and the subordinate legislation made under the Act will also be declared to be unconstitutional
and therefore void.

For example in the case of

Chintaman Rao

v.

State of M.P.

the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act, was
challenged as being inconsistent with Part III of the Constitution. Ss. 3 and 4 of the Act conferred
certain legislative powers on the Deputy Commissioner. An order was issued by the Deputy
Commissioner under the provisions of the Act forbidding all persons residing in certain villages from
engaging in the manufacture of bidis during a particular season.

The Supreme Court held that the impugned statute does not stand the test of reasonableness and is
therefore unconstitutional and consequently the orders issued by the Deputy Commissioner are also
void, inoperative and ineffective.

2. Delegated Legislation is ultra vires the Constitution

Sometimes it is found that the Enabling Act is not violative of the Constitution, but the subordinate
legislation made under it violates the provisions of the Constitution. Such subordinate legislation will
be unconstitutional and void, even though the Parent Act is completely valid.

In the case of the

Air India
 v.

Nargesh Meerza

Regulation 46 of Indian Airlines regulations provided that an Air Hostess shall retire from the service
upon attaining the age of 35 years or on marriage within four years of service or on first pregnancy,
whoever found earlier but the Managing Director had the discretion to extend the age of retirement
one year at a time beyond the age of retirement up to the age of 45 years at his option if an air hostess
was found medically fit.

It was held by the court that classification of air hostesses on the ground of pregnancy was
unreasonable and arbitrary. Therefore the Regulation was struck down as being unconstitutional.

3. Delegated legislation is ultra vires the Enabling or Parent Act

The validity of the delegated legislation may also be challenged on the ground that it is ultra vires the
Parent Act. The subordinate or delegated legislation shall be ultra vires in following cases

i. It is made by the delegate is in excess of the power conferred by the Parent Act, or
ii. It is in conflict with the provisions of the Parent Act, or
iii. It is made by authority exercising its power mala fide
iv. It is unreasonable and arbitrary

B. PROCEDURAL ULTRA VIRES

When the delegated legislation is made without complying with the procedural requirements
prescribed by the Parent Act, it is called procedural ultra vires. Whether non-compliance with the
procedure prescribed by the Parent Act will invalidate the delegated legislation or not, depends upon
the provisions of the Parent Act. If the provision is mandatory, it should be strictly observed and its
non-compliance will render the delegated legislation invalid. But if the provision is directory, the non-
compliance will not render the delegated legislation invalid, provided that there is substantial
compliance with the said provisions.

Disadvantages of Delegated Legislation [Extra]

In spite of the above advantages of the practice of delegated legislation, it has been criticised by
several scholars and jurists. The criticism of delegated legislation may be summed up as follows

1. In practice, rules and regulations made by the executive are of vital importance to common man.
Consequently, it is not desirable that such rules and regulations should be made by an executive
or administrative authority. Such regulations should be made by the elected representatives of the
people as they can discuss and understand the grievances of the people who have elected them.
2. Legislative control of delegated legislation is difficult due to the heavy work-load of the
Legislature. Sometimes the delegation is made in very wide terms, and in the absence of a proper
 legislative check on the exercise of such power, the executive may misuse the power and act in an
arbitrary power.
3. Judicial control over delegated legislation is not adequate. Since judicial control is dependent on
the chance that a person affected will risk expense and take effort in challenging the order, the
remedy of judicial control is often unsatisfactory for the harm already done due to the delegated
legislation.
4. There is inadequate publicity of the delegated legislation. In England, the Statutory Instruments
Act has been passed for the publicity of a subordinate legislation. However such a legislation is
lacking in India.
5. It is also criticised on the ground that it is against the doctrine of separation of powers and rule of
law. It may result in concentration of power in a single person or body.

Conclusion
Considering the various multifarious activities of a welfare State, delegated legislation has become a
necessary evil. However the delegated legislation needs to be properly checked and controlled
through legislative as well as judicial efforts. If the delegated legislation is not controlled, it has the
potential to be used in ways which Parliament had not anticipated when it conferred the power
through the Act of Parliament and would therefore violate the rule of law.