CENTRAL UNIVERSITY OF

SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

PROJECT-WORK

…………………………………………….
Procedural Control of Delegated Legislation
…………………………………………….
SUBMITTED BY - Kumar Pratyush

ENRROLLMENT NO. :-CUSB1513125021

PROGRRAME- :-B.A.LLB

SUBJECT :-ADMINISTRATIVE LAW

UNDER SUPERVISION OF Dr.P.K. MISHRA

DATE: 28/ 03 / 2018

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INTRODUCTION
Administrative law is a most significant and outstanding development of
20th century. It is regularly and rapidly growing day to day. In very few
years, it became very popular and essential in every almost developed and
civilized nations. It is existing from very old era but in this century, many
democratic nations have identified its relevancy. The working and
functioning of governmental and administrative has changed. After
second world war and decolonization, administrative law got its
importance. States were changing from military to welfare society.
Administrative law is a law related to administrative bodies of
constitution. Like: legislative, executive and judiciary. It ensures the
implementation of the constitution and also rectify the mistakes of
administrative officers. Administrative law plays important role in proper
implementation of delegated legislation, rule of law, principles of natural
justice.
Delegated legislation is a process by which the executive authority is
having power by primary legislation to enact laws in order to maintain
and administer the requirement of primary legislation. In old era the
function of executive is to administer the law enacted by the legislature
and in the ideal state, legislative power must exercise by legislature. They
are directly responsible for electorate. Legislation is made for any place
or territory should be considerable the situation of the people of that place.
Primary legislative authority derives of decentralized its powers to
secondary legislative authority. There are many reasons for the
decentralization of this power. It has now generally accepted that instead
of objecting to the delegation of legislative power, it is better to
concentrate on control of the exercise of such delegated power through
effective legislative and judicial supervision.

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DELEGATED LEGISLATION
Legislating control of administration is called as delegated legislation. Legislative
power of administration means the power given to the executive authority by the
legislature to make rules, regulations, like the act of providing this on certain
matters. It may be defined as the law making power of the executive or
administrative body. It is briefly known as “delegated legislation. It has also been
described as “outscoring of law making power”. Delegated legislation is a process
through which primary legislative body refers legislative powers to its subordinate
body for proper implementation. Delegated legislation has became need of nations
to fulfill the necessity of primary legislative authority. Subordinate body assists the
main legislative body. It works as executive also. It was originated in 16 th century
in United Kingdom. In 1931, for the first time law making powers was delegated to
land commissioner for tax from land owner. Practice started that land commissioner
will decide that how much tax should be imposed. This was the first time when
delegated legislation was recognized. It determined the concept of the delegated
legislation. This process was continued from 1931 and after that the functioning of
this process generated. In 1939, British king Henry eight got delegated legislative
power from British parliament. So implementation of legislative action also came in
the hand of the king. This was another example of delegated legislation.1 After these
new developments delegated legislation was mostly used by nations. Decolonization
plays vital important role in its development. Newly emerged nations used this for
rapid implementation of laws. Those nations which were geographically and
socially divided in far areas felt its need. It is difficult to enact and implement for
far geographical areas, what they require. Societal set up of any nation also play
important role. There is a requirement of subordinate body where societal set up
differs place to place. Like- India, So primary legislation decentralized its power.
The word delegate is different from the word delegation. While delegate means an
individual who is appointed, authorized, delegated to act in the stead of other, the
word delegation means ordering another by one man to other. It means delegated
legislation means delegating authority of law making upon other administrative
authority.

1
Page no. 135, I. P. Massey, Administrative Law

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Montesquieu, a French scholar, created the principle of separation of powers. He
believed that government should function in three different organs, the legislature,
the executive and the judiciary. Each governmental organ should be free to perform
its function and no any organ should interfere in the work of other. But our
Constitution does not strictly follow the principle of separation of powers. The
executive is a section of the legislature and is responsible to it. In all civilized
countries, an required segment of executive process is delegated legislation. The
great increase in delegated legislation in modern times is due to several factors.
Though law enacting is the main and important function of the legislature, in no
country does the legislature monopolies the entire law making power; it shares the
same with the administrative. A large part of legislation is made by the
Administration under the powers provided on it by the legislature. No statute is
passed today by a legislature which does not confer some legislative power on the
Administration. The Act conferring legislative power is known as the "Parent Act";
the subordinate legislation goes under various appellations, such as, rules,
regulations, schemes, by-laws, statutory rules, orders etc. The power of delegated
legislation may be given to the Central Government or the State Government
depending upon whether the statute is a Central or a state law. Sometimes Central
laws delegate legislative powers to the state governments and sometimes both the
Central and the state governments derive rule-making power from the same Act.2

The Donoughmore Committee on Ministers' Powers, appointed in London in 1929,

to think about, inter alia, the influence used by die Ministers by way of "delegated
legislation” also elaborated the expression in the following 2 senses

1. the exercise of law-making power by the administration under the authority

elected for act to it by the Parliament; and

2
Page No. 155, C.K Takwani , Administrative Law, eastern Book co.

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2. the rules, regulations, by laws, etc., made by the executive in the performance of
the law enacting power delegated to it by Parliament, speaking in the above way,
Jain & Jain say that as administrative lawyers, "we are more interested in the
'technique', rather than the actual rules made, and so the expression 'delegated
legislation' is used here primarily in the first sense", ie., the exercise of legislative
power by a subordinate agency"

Halsbury’s law of England, explains that when an instrument of a legislative nature

is made by authority other than legislature, it is called as delegated legislature. Keep
it in simple words deflated legislation refers to all law making, which takes place
outside the legislature. It is generally expressed as rules, regulations, orders, by-
laws, directions, scheme, notification etc.

Salmond keeps delegated legislation as-

“That, which proceeds from any authority other than sovereign power and is
therefore, dependent for its continued existence and validity on some superior or
supreme authority”3

Jain and Jain expressed in two senses:-

 The exercise by a subordinate agency of the legislative power, to it by the

legislature,
 The subsidiary rules themselves, which are made by subordinate agency, in
pursuance of the power as mentioned in (a)

The expression is meant to have both the meanings. It may be stated to be

“legislation by authorities other than the legislature”, which takes place outside the
legislature and is generally expressed as rule, order, by-law, regulations, direction,
scheme, etc.4

The Supreme Court in the case of Hamdard dawakhana v. union of India’ explains-
:

-When the delegate is given power of making rules in order to fill in the details to
carry out and sub serve the purposes of the legislation, the manner in which the
requirements of the statute are to be met and the rights therein created to be enjoyed,
it is an exercise of delegated legislation.

3
Page No. 60, S.P. sathe, Admionistrative Law, 7th edition
4
Page No. 161, C.K. Takwani, Administrative L:Aw

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REASONS FOR DEVELOPMENT OF ADMINISTRATIVE LAW

Delegated legislation was explored after 2nd world war in the whole world, when
states were shifting from military to welfare society. There are various reasons for
the emergence of this process.

1. Burden upon parliamentary time

2. Filling in details of legislation
3. Flexibility
4. Experimentation
5. Emergency situation
6. Complexities of modern administration
7. Time Limit

We can further discuss these reasons as:

1. Pressure Upon parliamentary time

Parliament is one of the biggest functioning organ of a nation which discuss
and enacts laws. Parliament has no time to frame pretty laws. Generally
parliament is busy in national and international matters related to welfare of
whole nation. Parliament is preoccupied with more important policy matters
and rarely finds them to discuss matter of detail. So parliament delegates its
power to subordinate body to perform at local level. Subordinate legislation
is given power for purpose of implementing the policy.

2. Filling in details of legislation

Before making of law legislature should have knowledge of matters of
technical or local or specialized nature. There are requirement of the details
to make variety of laws. So administration may with the consult of the experts
and their experiences can improve the condition at local level.

3. Flexibility
Rules, regulations are considered as flexible because of its dynamic nature. A
law cannot be amended except by an amendment passed in accordance with
legislative procedure and this process is time taking process. Rules change
accordingly its experiences. So it is necessary to make changes in the

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 provisions through subordinate legislation. Delegated legislation requires
less time and formal procedure so changes can be made more easily.

4. Experimentation
When the law is made, it is put on experimentation about the goodness and
badness of the said law. Law is flexible so after experiment it can be removed,
added and amended. Experiment is the essential part of the smooth running
of law.

5. Emergency Situation
In times of emergency the government has to take quick action. Its future
action cannot be anticipated. India is a huge nation with very complex society.
There are many religions, casts, sub casts, languages are prevailing here.
There are differences in whether of places. There are various problems,
sometime emergency situation become aggravated. Ex- Flood, storm,
earthquake. It is impossible for primary legislation to make laws for such
circumstances quickly. To overcome such situation there are necessity of
delegated legislation and primary legislation delegates its power to its
subordinates.

6. Complexities in modern Administration

Modern government is plurastic and function through a number of executive
agencies and free regulatory authorities, which have to regulate and monitor
activities in public interest. These agencies such as the election commission
or the reserve bank of India or the board of India or the board for industrial.

7. Time limit
Time of primary legislation is very less because that is busy in making
national and international law.

Control Mechanism of Delegated

Mechanism
There are three types of control mechanism of administrative rulemaking
in India.

1. Parliamentary/legislative Control

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 2. Procedural/Administrative/Executive Control
3. Judicial Control

My topic concerns with Procedural Control of delegated legislation but

before dealing with it, I would like to discuss about other controls
mechanisms.

PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL.

Subordinate legislate body of delegated legislation is free and there are not many
procedural requirements unless the primary legislature makes it mandatory for the
administration to follow by a given procedure. There is one of the reason the
delegated legislation that subordinate body helps to work rapidly and immediately.
So there is concept of easy procedures. A rigid procedural requirements may
consume too much time and cumbersome and they may defeat the very purpose of
delegated legislation. However, communication in one form or other to the general
public still remains indispensable for the law to be legally valid and binding. Hence
procedural control means certain procedures which are laid down in the parent Act
which have to be followed by the authorities while making the rules.5

Delegated legislation may be challenged on the ground that it has been in accordance
with the procedure prescribed by the enabling Act. Every procedure should be
properly followed. However, rules become invalid if procedure will not be followed.
It will be the ground, only if such procedure is compulsory.

Non-compliance with the directory provisions does not render them invalid. It
becomes a case of procedural alternatives. It is necessary to observe that whether
the procedure is mandatory or directory. Procedural control mechanism operates in
three components:

(i) Pre-publication and consultation with an expert body or approval of an authority.

5
Page no. 141, I.P.Massey, Administrative Law

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(ii) Publication of delegated legislation.

(iii) Laying of the rules before the legislature.

This procedural control mechanism may be either mandatory or directory. For the
purpose of mandatory or directory control mechanisms some necessary measures
should be taken into account viz (a) Scheme of Act (b) Intention of legislature i.e.
whether treated mandatory or directory (c) language in which the provision is
drafted (d) Serious inconvenience being caused to the public at large, these were
four parameters laid down in case.

Raza Buland Sugar Co. v.Rampur Municipal Council (AIR 1965 Sc 895).

(A) Consultation and Pre-publication.”

The “modus-operandi” is consider as a valuable protection against the misuse of

legislative power by the administrative authorities. The effect of the term previous
publication according to S.23 of General Clause Act, 1897 is that:

(i) The rules should be published in draft form in Gazette.

(ii) Any reason for disagreeing and suggestions be invited by a specific date
mentioned there in, and

(iii) Those objection and suggestions be regarded by rule-making authority.

In India, a provision of prior act of information, if contained in the enabling Act is

considered sometimes as mandatory and sometime as directory. In issue like
environment, this requirement is considered as mandatory in nature.

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The provisions for prior consultation may take
various forms:

(a) Official consultation: The central govt. is required to make rules U/s 52 of the
Banking Companies Act, after consulting the Reserve Bank of India.

(b) Disappointment with statutory bodies: In charge of a particular subject.

(c) Consultation with Executive boards.

(d) Consultation with affected persons: Municipalities, before tax imposition have
to publish draft rules in a Hindi daily and consult the inhabitants of the area. Under
the industries development and regulations act, representations from the industry
and public are invited.

(e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers
owner of a time to frame or to draft rules themselves for safety etc. n mines and
submit them to inspector of mines. Such rule becomes operative on being approved
by the government.

In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with
the Municipality was required to be made the Transport Authority before certain
routes for buses were fixed. The S.C. held it to be merely directory.

(B) PUBLICATION (POST NATAL PUBLICITY)’

It is a fundamental principal of law “ignorantia juris non excusat” (ignorance of law

is no excuse) but there is also another equally established principle of law that the
public must have the access to the law and they should be given an opportunity to
know the law. All laws ought either to be known or at least laid open offend against
them under pretence of ignorance. It is essential that adequate means are adopted to
publicize the rules so that people are not caught on the wrong foot, in ignorance of
the rules applicable to them in a given situation.”

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Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution
enacted the Jaipur opium Act which made rule that if a person carried opinion
beyond a certain limit then it was an offence committed and penalty had to be
imposed on the accused & act was never published. One Harla was prosecuted for
the contravention of this law because he was in possession of opium in more quantity
than permitted. He contended that it was a case of procedural ultravires. Holding
that the law was not enforceable the Supreme Court observed. “Promulgation or
publication of some sort is essential otherwise it would be against principles of
natural justice to punish the subject under a law of which they had no knowledge
and of which they could not even with the exercise of reasonable diligence be said
to have acquired any knowledge.”6

In Narendra Kumar vs. U.O.I. (AIR 1960 SC 430) Sec.3 of Essential commodities
Act, 1955 required all the rules to be made under the Act to be notified in official
gazette. The principles applied by licensing authority for issuing permits for the
acquisition of non-ferrous metals were not notified. The S.C. held the rules
ineffective because the mode of publication i.e. in Official Gazette was held to be
mandatory.

NECESSITY OF PUBLICATION
Whether the requirement as to be mode of publication of rules is mandatory or
directory? Will the rules be valid if to published in official gazette but circulated in
any other mode?

Form the point of view of the individual it is unfair to publish the rule is obscure
publication. First publication in required mode creates certainty in the mind of the
individual that rules have been duly made. Secondly it enables him to have say
access ability to the rules.7

In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C.
Ancho, J. observed. ‘The question whether a particular provision of statute which on
the face of a appears mandatory or is merely directory cannot be laying down any
general rule and depends upon the facts of each case and for that purpose the object
6
Page no, 157, C.K. Takwani, Administrative Law
7
Page no. 94, S.P. Sathe, administrative law 7th edition

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of the statute in making the provision is the determining factor. The language of the
provision have all to be taken into account in arriving at the conclusion whether
particular provision is mandatory or directory.” Further, the medium of publication
has been held to be a mandatory requirement.

CONCLUSION

Delegated legislation has become an essential part of various nations in which

primary legislature confers its certain power to the executive body to assist it. It
was initiated in United Kingdom but it became need of many countries. Many
nations started following delegated legislation after Second World War and it
became very popular and successful. It makes the work of primary legislation
easier. But some time it has been seen that subordinate executive authority has
used it arbitrary power which of against the rule of law and natural justice. So it
was very necessary to control the subordinate authority. Somehow various
mechanism emerged in many nation. There are three kinds of control i.e.
Legislative control, procedural control and judicial control. Subordinate legislation
has to follow some procedural made for it. In the case of non-completion of
procedure, Procedural control may be imposed upon subordinate legislation.

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 BIBLIOGRAPHY
 Dr. J. N. Pandey, Constitutional Law of
India, Central Law Agency, 52nd edition
 Working A democratic Constitution,
Oxford India Paperbacks, written by
Granville Austin
 I.P. Massey, Administrative law,
 S. P. sathe, Administrative Law 7th edition

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