A FEW THOUGHTS ON THE NEXUS OF DELEGATED LEGISLATION AND

SEPARATION OF POWERS

i. Introduction

Most of the public law discourse is devoted on the delegated legislation and separation of
powers.1 It is because Administrative Law in the modern age is relatively concerned with
which, what and how powers are shared between and by the three organs of the State to
mitigate Montesquieu’s rigid doctrine of SoP on one hand and Dicey’s rule of law doctrine
on the other. Although many comments have been made to confine the practice of delegated
legislation to the late 20th century onwards, the true version is that the practice of DL was
there alongside the SoP in most if not all of the old civilizations of the world. What happened
and indeed misconceived by many as appearance of delegation of powers beside the doctrine
of SoP is the development and evolution in the human age. Although the two doctrines did
not have the same names by that time, still that fact cannot prove their [none] existence. For
instance, Chiekh Anta Diop in his book2 has elaborately discussed the constitutional system
in Africa and how powers were shared and delegated between the Kings, Councils and
administration. This is also evidently clear in the work of Chancellor Williams3 on how
powers were shared and performed in the old Sudanese Kingdoms and Africa at large.

The ancient Indian Kingdoms also bear a similar concept relevant to their time and system of
rule by that time.4 The difference of the DL and SoP in the old age and the contemporary
State can be correctly appreciated in observing the socio-economic and political systems and
the responsibility of the state towards its subjects. This is the point on which many authors5
have agreed as the main reasons behind the development of DL. If the claims made by many
that DL emerged in 20th century or we assume Prof. Dicey’s claim on rubbishing the
existence of Administrative Law in his England, we may fall short to provide answer to
question as to how did the ancient kingdoms and pre- 19th -20th century States including
England executed their laws? To strike consensus on this debate and the relevance of the two,

1
Delegated legislation and separation of powers hereinafter referred to as DL & SoP respectively.
2
Pre-colonial Africa Black Africa: A Comparative Study of the Political and Social Systems of Europe and
Black Africa, From Antiquity to the Formation of Modern States at 43, 75, 99 -105, 1987 Translated by Harold
J. Saleman, Lawrence Hill Company, Westport Connecticut.
3
The Destruction of Black Civilization: Great Issues of A Race From 4500 BC to 2000 AD, 3 rd Revised edition,
1974, Chicago.
4
See Robert Lingat’s Classical Law of India (Munshiram Manoharlal Publishers Pvt Ltd, 1973) p. 143-243.
5
See, Jain & Jain’s Principles of Administrative Law, C. K. Takwani’s Lectures on Administrative Law,
William F. Fox, Jr’s Understanding Administrative Law, 4 th edition, (Mathew Bender & Company, 2000).

1
this paper tries to show this relevance and relation between the two doctrines. The rapid
growth of administrative law as an area of scholarship has its premise in the development of
DL and SoP on one hand and how these delegated powers and divided functions are
controlled to modify the exercise given under the two doctrines in a particular State. With
this, it is right to say that the centre growth and debate of administrative law is located in two
doctrines. These powers are sometimes expressly provided in the constitutions or Statutes.
For instance, the Transitional Constitution of the Republic of South Sudan expressly provides
delegation of powers.6

Although the constitution of a country may adumbrate the functions to be performed by each
organ, this does not preclude the fact that despite such provisions giving powers to executive,
legislature or judiciary, each is barred from exercising a power which may be by nature and
theoretical description is executive, legislative or judicial function. Such exercise is clear in
understanding the doctrine under the Indian Constitution and other Westminster models. The
performance of some functions by other organs of government and how such exercise can be
addressed under the principles of delegated legislation and separation of powers to appreciate
the existing nexus is the purpose of this work. To do this, I will first explore the state of
affairs of the two principles.

ii. The State of Delegated Legislation and Separation of Powers

To appreciate the nexus of the two doctrines, it is better to explore their state of affairs as
debated over by different jurists. There are differences in views from Aristotle up to the
modern time. Perhaps, because of the nature and systems of governance from one time to
another and from one jurisdiction to another which on the other hand maintain its rapid
evolution from the inception of these two concepts? Neil and Neil7 regard DL as “a
process by which different types of laws are made under the authority and within the
terms of Act of Parliament”. This means that the Act enacted by the parliament
empowers the executive or administrative authority to do a particular act. The rules
making function is entrusted unto the administrative agency where an Act does not
provide a comprehensive details or where flexibility is needed to meet the unforeseen

6
Article 92 states; “the National Legislature or either of its two Houses may, by law, delegate to the President,
the Council of Ministers or any public body, the power to make any subsidiary regulations, rules, orders or any
other subsidiary instrument having the force of law, provided that such subsidiary legislation shall be tabled
before the concerned House and be subject to adoption or amendment by a resolution of that House in
accordance with the provisions of its regulations.”
7
Introduction to Administrative Law, 1 st edition, (Cavendish Publishing Limited 1998) at 115.

2
 events. This type of law making process has many names such as subordinate legislation,
bye-laws, secondary legislation, rules, orders, regulations etc. Hilaire Barnett observed:

“The principal justification of delegated legislation is for delegation of such law making power
is efficiency. The implication of delegated legislation in constitutional terms is that a legislative
function is being exercised by the executive and not parliament. The delegation of law making
power is a necessity given the heavy legislative programme and the modern complexity of legal
regulation.”8

Doctrine of SoP is always associated with the writing of Montesquieu. Montesquieu

enunciated this doctrine in his “The Spirit of Laws”, a book which made him to be always
referred to as expounder of the doctrine to its modern state of study. But this claim is taken
without denying the works of others9 who have perceived similar concept.10 Montesquieu
assertion has been criticised by many due to its rigidity. However, it is right to observe that
his assertion could be right if one may recall the time, the type of States and political systems
prevailing at that time. It is always said that he conceived the idea from Aristotle and Locke.
It could be inferred that the autocratic government in that era are behind his thesis. Though,
he was writing after the Constitutional changes in England, perhaps, he did so at least to
guaranteed protection from potential constitutional disorder. Some of Montesquieu’s critics
have provided some reasonable thesis which is more relevant to the current welfare state
context. For instant, Wade and Philips11 say that the doctrine of SoP means three things
namely:

a) The same set of persons should not compose more than one department of the three organs of
government;
b) One department should not exercise the functions of the other two departments; and
c) One department should not control much less, interfere with the work of the other two
departments.

Hilaire Barnett12 considers SoP as“a doctrine which is fundamental to the organisation of a
state and the concept of constitutionalism in so far it prescribes the appropriate allocation of
powers and the limit of those powers to differing institutions”. This observation is precise and
practicable than Montesquieu’s. It gives room for overlaps of powers between the three

8
Hilaire Barnett, Constitutional and Administrative Law, 4th edition (Cavendish Publishing Limited, 2002) p.
122.
9
Plato, Aristotle, John Locke Hobbes.
10
For Montesquieu’s definition and account of Plato, Aristotle, John Locke Hobbes and others see supra7 (8th
edition) p. 80-82.
11
Constitutional Law, (1966) pp. 22-34.
12
Supra note 7 p. 105.

3
organs. Massey says that “the purpose of doctrine of SoP is to divide governance against
itself by creating distinct centres of powers so that they could prevent each other from
threatening tyranny.”13 With this brief affair, the nexus of the two doctrines shall be discussed
in the subsequent paragraphs.

iii. A brief correlation on the two Principles

Taking the traditional view of SoP, the functions of the executive is to execute the laws
promulgated by the legislature, on the same note the function of the legislation is exclusively
allotted to the legislature. This rigid division of functions has been proven futile by the facts
that there are circumstances that need immediate response when the executive performs its
duties. Thus, the executive is required by necessity to perform some legislative and judicial
functions within a permissible scope for matter of expediency. This modification has led to
adaptation of DL so that the functions whether of legislative or judicial nature may be
performed by the executive. Such powers to be delegated are demarcated and provided by the
fundamental law of the land or legislative enactments that guaranteed powers and rights in a
particular area. So the question is; what are the boundaries between DL and SoP? It is not an
easy task to precisely enumerate the clear boundaries or to put their relation into watertight
compartments, otherwise, it may led to the commission of a blatant error in the understanding
or practice of the two doctrines in practice. This is because of the abstract nature of the two
principles particularly the doctrine of SoP. Commented [AM1]: Citation?

However, an attempt is made in this section to make relation between the two principles.
While the doctrine of SoP creates three organs of the government and demands their distinct
operation (somewhat theoretically), the modern interpretation of the doctrine as observed by
Kagzi is not a mere theoretical philosopher’s concept.14 The practical daily operation of the
three organs under the three functions has caused the acceptance of DL as a reality and
necessity. As many scholars15 agreed on the reasons for growth of the delegated legislation,
it became a necessity beside the doctrine of SoP due to the appearance of the free market
economy, liberalization, globalization and welfare state. This new phenomena in the
economic and political systems have made it mandatory for the legislature to delegated some

13
I. P. Massey, Administrative Law9th edition, (Lucknow, EBC, 2017) p. 38.
14
M. C. Jain Kagzi, The Indian Administrative Law 7 th edition (LexisNexis, 2014) p. 15.
15
Jain & Jain, I.P Massey, M. C. Jain Kagzi, Edward L. Metzler, “The Growth and Development of
Administrative Law”, 19 Marq L. Rev. 209(1935) .

4
of its powers to the executive since the demand of the wider role of the latter is necessarily
needed. This happens as Jain & Jain observe that:

“What happens is that the legislature enacts a law covering only the general principles and the
policies to the subject matter in question and confers rule-making power on the government or some
other administrative agency. The delegation of legislative power is permissible only when the
legislative policy is adequately laid down and the delegate is empowered to carry out the policy
within the guidelines laid down by the legislature”. 16

It is clear in this remark, that while the doctrine of separation of powers may be expressly,
impliedly provided or inferred by/in the Constitution, the DL conferred must be necessarily
laid down in the Act of Parliament that permits particular act or grants powers or right. This
means that the legislation cannot be made by a person or body other than the legislature or
without the express authority of the legislature. While doctrine of SoP remains a necessity as
observed by of Indian courts17 as the basic feature of the Constitution, this cannot ignore the
fact for the need of DL. On this demand, Massey has rightly opined that:

“the basis for need of matrix administrative rule-making lies in the facts that the complexities of
modern administration which are baffling and intricate and bristle with details, urgencies, difficulties
and a need for flexibility that our massive legislature may not get off to a start if they must directly
and comprehensively handle legislative business in all their plenitude, proliferation and
particularisation”18

The delegation of some part of legislative functions becomes a compulsive necessity for
viability. As early as 1940 many criticisms have been mounted against the raise of the DL in
the U.S. and U.K. These criticisms led to the formation of various committees19 to review the
administrative process particularly the rapid growth of delegated legislation and their impact
on the doctrine of SoP. These U.S. and UK committees made their reports with
recommendations which were eventually adopted in enactments; the Administrative
Procedure Act, 1946 and Statutory Instruments Act, 1946 respectively. Such
recommendations and enactments were made and effected along the constitutional
organisation in the context of Sop. Jain and Jain on the nature and use of DL write:

“The term delegated legislation is used in two different senses:

16
Jain & Jain, Principles of Administrative Law, 6 th edition, (LexisNexis, 2013) pp. 42- 43
17
Indira Nehru Gandhi v. Raj Narain, 1975, Supp SCC1, Supreme Court Advocate-on-Records Ass. v. Union of
India (2016) 5 SCC1.
18
Supra note 12 at 80.
19
Roscoe Pound Committee, 1938, The US Attorney General’s Committee and Lord Donoughmore’
Committee(Committee on Ministers’ Powers, 1929).

5
 a) The exercise by subordinate agency of the legislation; or
b) The subsidiary rules themselves which are made by the subordinate agency in the
pursuance of the power as mentioned in (a).”20

In accordance with these remarks on the nature and use of the DL as well as in the conditions
and instances in which the administrative authorities legislate or adjudicate, the
administrative agencies exercised powers on behalf of the superior legislature subject to
statutory policy. This makes it clear that the DL and its exercise do not amount to ousting of
the doctrine of SoP. The Indian Supreme held the same position in the case of Chief
Settlement Commr. v. Om Prakash21 where it stated:

“It is essential to emphasize that under our Constitutional system the authority to make the law is
vested in Parliament and the State Legislatures and other law making bodies and whatever legislative
power the executive administration possesses must be derived directly from the delegation of the
legislation and exercised validly only within the limits prescribed. The notion of inherent or
autonomous law-making power in the executive administration is a notion that must be emphatically
rejected.”

iv. Types of Delegated Legislation and their impacts on the doctrine of SoP

As a matter of form and nature, types of delegated legislation bear various titles or names.
The basic necessity for the validity of the DL is that it must be made through legislative
policy and mandate. Although, there are many types of DL, it is not possible to conclude that
such types or classifications are exhaustive. However, we do always come across terms such
as rules, regulations, orders; bye-laws etc. such terms on one hand are known as “title based
delegated legislation” and on the other hand, there are other three; “conditional legislation”,
“authority based” and “nature based” types. Since the purpose of this paper is to appreciate
the cohesive relation between the two doctrines, I will first discuss these types of DL and
subsequently return to their impacts on the doctrine of SoP.

a) Title based types

As the title suggests and as briefly stated in the introduction of this section above, title based
types of DL is classified into many sub-titles which are not exhaustive themselves. They are
occasionally referred to as rules, regulations, orders, bye-laws, directions, schemes etc. they
are statutorily referred in the piece of legislation that confers the power on the administrative

20
Supra note 15 p. 44
21
AIR 1969 SC 33, 36.

6
agency. The administrative agency therefore enacts such rules, regulations etc as the
legislation requires or deems it appropriate. Each of these types of DL are all derived from
the primary legislation and the body or person to whom such delegation is conferred upon has
to issues rules, regulations etc within the limit of the legislative policy. Any of the title based
DL should not supplant the provisions of the Act of Parliament but issue to the extent of
supplementary effect only. Title based DL establish the clear pattern of conduct which can be
followed at easy. In the case of Sudan Government v. Abdel Wahab Mohammed & others22 ,
in that case, the issue was that, the Governor of Kordofan Province issued an Order under
section 18 of Foodstuffs and Necessaries Ordinance, 1926. The order purported to prohibit
the removal of wheat flour from Kordofan province to places outside that province. In
making such order, the Governor under section 18 was required to issue the order via; by
publication in the Kordofan Newspaper; and by affixing a copy of the order on public notice
boards. On the other hand, that section requires the prior consent of the National Minister of
Commerce to an order of the Governor. Abel Alier J observed that:

“The Governor’s powers under this section are not absolute. If, therefore, an order is made without the
previous consent of the Minister that order is null and void and it seems that even its ratification will not
give it a retrospective effect. It cannot, therefore, be properly called “an order duly promulgated by a
public servant lawfully empowered to promulgate such order.” Commented [AM2]: source

The order was held illegal on the ground that it was not made based on the legislative policy
and as required.

b) Conditional Legislation

This type of DL is sometimes referred to as discretion based or contingent legislation. It

refers to instances where ‘the legislature has enacted a law which is full and complete in all
respects but it is not brought into operation immediately’. 23 The enforcement of such
legislation is made subject to occurrence of a condition as prescribed in the Act. The power
conferred on the administrative agency or the executive in such legislation is the power to
determine the condition whether or not the stipulated condition in the Act has been fulfilled.24
In Indian and US context as well as other common-law jurisdictions, two oldest cases seem to
be more relevant to this type which deserves attention.

22
(1960) SLJR 31.
23
See Supra note at 15 p. 85.
24
Ibid.

7
In Queen v. Burah25 , the Act was passed to remove ‘Garo Hills’ from the area, the laws and
courts therein and vested the administration of justice there in such officers as the Lt.
Governor of Bengal Province might appoint. The Act also authorised the Governor to extend
to Garo Hills any law in force in other territories under him. The Act was to come into force
upon the day the Governor so appointed the officers. The Privy Council held that the Act was
conditional legislation since the legislature has empowered the Governor to make such order
having determined that a certain change has taken place. It placed the operation of the law on
the discretion of the Governor. The legislature has made a clear legislative policy as it
indicated the place, the person, laws and powers by legislating conditionally on these issues.

In the American case of Field v. Clark26, the Act authorised the President to suspend the
operation of an Act, permitting import of certain goods into the United States. The United
States Supreme Court upheld the constitutionality of the Act on the ground that the president
is a mere agent of the Congress to ascertain and declared the condition. It was also observed
by the court that the Congress cannot delegate its power to legislate but it can make a law to
delegate the power to determine some factors or state of things upon which the law intends to
make its own action dependent. Conditional legislation is therefore of three characters as
follow:

1) Statute enacted by the legislature, the future applicability to a given area is left to the satisfaction of
the delegate as to the conditions indicating the proper time for that purpose;
2) Act enforced, but the power to withdraw the same from the operation in a given area or in a given
case is delegated to be exercised on subjective satisfaction or objective satisfaction of the delegated
to be exercise per the conditions; and;
3) Power exercisable upon the delegate’s satisfaction on the objective facts by a class of persons
seeking benefit of the exercise of such power to deprive the rival class of persons of statutory
benefits.27

However, in Lachmi Narain v. Union of India28, the Indian Supreme Court expressed a
negative opinion on the conditional legislation when it observed that “no useful purpose is
served by calling a power conferred by a statute as a conditional legislation instead of DL.
There is no difference between them in principle.

25
5. IA 178(1878).
26
36 L, Ed 294: 143 US. 649, 692(1891).
27
For discussion see, supra note 12 p. 85.
28
AIR 1876 SC 714, 722.

8
 c) Authority based type

This type is also known as sub-delegation power. It is always conferred based on the position
of the authority making rules. However, this type of delegated legislation raises a question as
to how can a delegate redelegated power? The answer to this question is one of the only
exceptions of the principle of “delegatu non potest delegare”which is very rarely allowed.
Such exceptions are permissible only if the statute delegating the power has expressly or by
necessary implication has provided it; provide that the conferring authority must ensure to
maintain substantial control. Under South Sudan’s Refugee Act, 2012, section 11 on the
delegation of powers and duties bears such substantial control of sub-delegation. Section 11
of this Act reads as:

The Minister may delegate any power granted to, or duty imposed upon him or her in terms of this Act,
except the duty referred to in Section 9(2), to an officer in the Commissioner Department; 2)A power or
duty so delegated must be exercised or performed in accordance with the directions of the Minister, who
may at any time withdraw such delegation; 3)A delegation under subsection (1) does not prevent the
Minister from exercising the power or performing the duty in question himself or herself.

However, section 13 of South Sudan Police Services Act, 2009 sub-delegated power without
clear means of substantial control of the power. This section reads as follows:

1) The President may delegate any of his or her powers under this Act to the Minister.
2) The Minister may delegate any of his or her powers under this Act to the Inspector
General.
3) The Inspector General may delegate any of his or her powers under this Act to his or her
Deputy or any of his or her Assistants or the Police Commissioners.
4) The Minister may, by an order, based on the recommendation of the Inspector
General, authorise any person to exercise any of the duties, powers or competences of
police personnel on a temporary basis as may be stipulated by that order.

Such delegation of power of course shows how difficult it may be to ensure the intended
purpose of legislative policy which may result into a direct encroachment of the legislative
functions by the executive particularly in a country like South Sudan where courts remain to
be relatively reluctant on constitutional adjudication. In A.K. Roy v. State of Punjab29, the Commented [AM3]: Source?

power to initiate prosecution for the offences under the Prevention of food Adulteration Act,
1954 had been vested in the State Government. But in the rules made thereunder, the power
was delegated to Food Inspector. The Court held sub-delegation as ultra vires the parent Act.

29
(1986) 4. SCC 326.

9
Massey observed that “the mechanism of sub-delegation makes parliamentary control
illusory, postpones the rule-making process and makes publication of rules difficult.
Therefore, it must be resorted to only in unavoidable circumstances.”30

d) Nature based type

This type has been given many names such as the Henry VIII Clause, removal of difficulties
or power to modify the statute subject to the prevailing circumstances which were impossible
to be foreseen by the legislature during the enactment. It is mostly provided in the Act in
regards to social security laws addressing the socio-economic schemes when the legislature is
not sure of what difficulties may arise in the future in the implementation of the provision of
the Act.31 Jain & Jain state that the two types of nature based delegated legislation can be
identified in the Indian Statutes:

1) A narrow power under which power to remove difficulties has to be exercised

consistent with the provisions of the Act; and
2) The other, a broader version, may authorize modification of the parent Act, or any
other Act in the name of removal of difficulties. Usually such a power is limited
in point of time e.g. two or three years. They however opined that in principle
such is objectionable as it vests a vast arsenal of powers in the executive.32
Such provisions in India are also expressly provided in the Constitution under Articles 372
and 392(1).

e) Impacts of DL on the doctrine of SoP

Reading the types of DL into or under the doctrine of SoP, the antagonists of the wider
permission of the DL to the administrative authority may raised a doubtful query as to
whether such wider delegation of powers may not amount to a peaceful or decent burial of
the doctrine of SoP? Responding to such queries, one may say that with the exception of the
first type of DL, the other three types are possibly easy to be exposed to abuse by the
administrative authorities particularly in the scenarios of the hybrid system of democracy
where the system of governance is partly dictatorship and partly democratic and where

30
Supra note 12 p. 87.
31
Supra note 15 at 72.
32
Ibid.

10
legislatures and judiciary in most cases remain as rubberstamps and committed judiciary
respectively.33

This may put the doctrine of separation of powers at halt although some authors are of the
view that the doctrine of separation of powers is not necessarily to be within a democratic
rule.34 The title based DL is always explicitly expressed in the statute, thus, it is rare to assert
that it may do away with the doctrine of SoP. The other types are easily controlled and
inspected by the judicial and parliamentary control mechanisms. However, the last three
types are discretionarily wider and their exercise may immensely hampered the SoP as it
appears in section 13 of South Sudan Police services Act, 2009 mentioned above. For
instance, the conditional legislation cannot be challenged on the ground of excessive
delegation.35 It is dependent on the facts finding and establishment of such conditions by the
executive or administrative authorities which may be established subjectively. This is true in
the nature that no mandamus cannot lie against the government to consider whether the
provisions should be enforced and when the government would be able to decide the
operation of the conditional legislation.36 As the safeguards of the impact of the other types
may seem to be, Jain & Jain have provided a balancing ground for the two doctrines. They
remark that such drastic power can be reconciled by fulfilling two conditions; first, “the
parent Act lay down the policy subject the power to modify or removal of difficulties is to be
exercised and secondly, the power to modify or remove or delegate cannot be so exercised so
as to change the policy underlying the parent Act.37

In Baburam Jagdish Kumar & Co. v. State of Punjab,38 Supreme Court held that the DL to a
local authority to vary or modify an existing law would not be unconstitutional so long as
such delegation does not involve abdication of essential legislative power by the legislature.
The Court in Sita Ram Bishambhar v. State of Uttar Pradesh39 also observed thus:

“The present position as regards delegation of legislative power may not be ideal but in the absence of any better
alternative, there is no escape from it. The legislatures have neither the time nor the required detailed information,
nor even the mobility to deal in detail with innumerable problems arising time and again. In certain matters, they
can only lay down the policy and guidelines in as clear a manner as possible.”

33
The examples of hybrid system of governance are countries where there are regular conduct of elections but
no democracy and rule of law in practical senses.
34
See John Alder, Constitutional & Administrative Law, 10 th edition, (Palgrave Publisher 2015) p.136.
35
E.g. State of T.N v. Sabanayagam, AIR 1998 SC 318.
36
Supra note 12 at 85.
37
Ibid pp. 48-56.
38
(1979) 3 SCC 616.
39
AIR, 1972 SC 1168.

11
With the above, one ,may consent to the view which says that SoP does not necessarily mean
that the three functions are always separate bodies but rather that each function a separate
body has at least that the exercise of power is subject to some external checks i.e. the doctrine
of checks and balances.

v. Control of DL as safeguard for the doctrine of SoP

As it appears in the preceding discussion, the question of DL has become a debatable point
among the scholars and inevitably become an acceptable practice in one way or another as it
is clearly seen in its various types. It is because of the effect of the delegation of powers to
the administrative agency to exercise the powers which if we were to follow the rigid path of
separation as envisaged by Montesquieu would have amount to the violation of the doctrine.
However, the necessary demand for both doctrines has made the jurists of various
jurisdictions to seek control mechanism. It means that the powers so delegated must be
controlled to be strictly exercised by the delegate. This need of control mechanism is to keep
the delegated powers on the executive within the permissible limits to potentially protect such
powers from the inherent danger of abuse. Perhaps, the idea of control conform to Locke’s
repository that “it may be too great temptation to human frailty, for the same person to have
the power to make laws, to have also the power to execute them, whereby they may exempt
themselves from obedience to the laws both in its making and execution to meet their own
private advantages”.40 Thus, the control mechanism on the DL should be seen as a strength
mechanism to the SoP. Such exercise could be perceived under the checks and balances
doctrine, a principle meant to provide the sufficient guarantee against all types of abuse of
power. In India for example, the Committee on Subordinate Legislation has observed that
“today the question is not whether delegated legislation is desirable or not, but what controls
and safeguards can and ought to be introduced so that the rules making power conferred on
the administration is not misused or misapplied.41 The English Committee on Ministers’
Powers also made the following remarks that:

“We do not agree with the critics who think that the practice of delegated legislation is wholly bad. We see
in it definite advantages, provided that the statutory powers are exercised and the statutory functions
performed in the right way. However, risks of abuse are incidental to it and we believe that safeguards are
required, if the country is to continue to enjoy the advantages of the practice without suffering from its
inherent dangers. We doubt, however, whether Parliament itself has fully realised how extensive the

40
John Locke, Two Treatises of Civil Government, Rod Hay (ed) pp. 162-167.
41
Committee on Subordinate Legislation(1 st Lok Sabha) 1954(3rd report) 16 as cited in Jain & Jain’s Principles
of Administrative Law ( 2013).

12
 practice of delegation has become or the extent to which it has surrendered its own functions in the pr ocess
or how easily the practice might be abused.” 42

On the abuse of powers and the need for control, Subba Rao J in Devi Das v. State of
Punjab43 stated:

“There is an inherent in such a process of delegation. An overburdened legislature or one controlled b y the
powerful executive may unduly overstep the limits of delegation. It may not lay down at all, it may declare
its policy in vague and general terms, it may not lay down any standard for the guidance of the executive, it
may confer an arbitrary power on the executive or modify the policy laid down by it without reserving for
itself any control over subordinate legislation. The self effacement of legislative power in favour of another
agency either in whole or in part is beyond the permissible limits of delegation. It is for a court to hold on a
fair, generous and liberal construction of an impugned Statute whether the legislature has exceeded such
limits”.

This observation shows the judicial approach in keeping the two principles in harmony that
the DL should not be allowed to grow wild over the doctrine of SoP. With these cautions in
mind, a question may be produced as to when does the control of DL arise, enforced by
whom and on what grounds? The answer to this question seems to be a broader one to be
precisely placed. However, the balancing answer may be provided to meet the premises of
this paper. The question may be divided into two or three components. The control
mechanism is initiated at two early stages namely: At the stage of delegation of legislative
power. The focus in this stage is the limits of delegation of power to be so made and the
safeguards therein and at the stage of exercise of the DL by the executive. This stage deals
with the requirements for the safeguards to prevent the misuse of power by administrative
authority. As to who and how [to] control the delegated powers, the control mechanism is
effectuated by three means namely; Judicial, Parliamentary and Procedural control.

1) Judicial control of DL

To ensure judicial control of DL, the doctrine of SoP is considered paramount in the process.
This also demands the need of principle of judicial independence and impartiality of the
judges. The principle of judicial independence and impartiality of judges is an idea
underpinned by the doctrine of SoP. This is equally true because the doctrine requires and
enforces checks and balances between the three organs to guarantee protection against abuse
of power. For a meaningful judicial control of the delegated legislation to ensure the Commented [AM4]: DL

42
Report of the Committee on Ministers’ Powers p 4. Cmd 4060(1932).
43
AIR 1967 SC 1895.

13
effectiveness of both the doctrines, judges must be able to decide disputes between the
government officials and private individuals without fear of sanction or retribution and that
they must be seen exercising their review jurisdiction without bias.

Judicial control is part of judicial review of administrative action. DL since it is a delegation

of powers to another organ of government’s functions; it does not have the same immunity as
statute. This is because to ensure the observance of the doctrine of SoP. Since the powers of
the State keep developing, the judicial review powers in controlling such powers keep
extending as well. Thus, it is not possible to provide an exhaustive list of the instances in
which the power of judicial control of DL may be exercised by the courts. However, there are
two main grounds; ‘substantive and procedural ultra vires’ on which the courts may
intervene to control the making process and execution of the DL. But sometimes the power of
judicial control as necessarily required and laid down under the SoP seems to have been
whittled down in circumstances where the parliament has provided an express exclusion of
judicial control in the interest of promoting certainty about the legitimacy of administrative
acts.44

In such situations where the express statutory provision precludes the judicial control, the
courts will in every case need to examine the statutory context to determine whether the court
hearing a case has jurisdiction to rule on a defence based upon the arguments of invalidity of
subordinate legislation.45 While doing such statutory examination to substantiated the context
of the Statute and the subordinate legislation made thereunder, courts are required to impose
self restraint. This is not to assume the role of being an upper body to supervise the other
organs of the State which may undermine the doctrine of SoP. In Joseph A. Garang & Others
v. Supreme Commission & Others46 Salah Eddin Hassan J, while dealing with the question of
the power of the courts on the judicial review or to rule on the constitutionality of legislative
enactments, asserted that “this High Court is empowered by the Constitution to decide on the
essential validity and constitutionality of any law passed by the legislature”. In India, the
Courts have asserted the powers of the courts to review even when such DL or enacted law
precluded the power of the courts.47 The Court in State of Kerala v. K.M.C Abdulla & Co.48,
held that the validity of the rules can still be challenged even when in the face of such phrase

44
Jain & Jain note 16 at 106.
45
Ibid.
46
(1968) SLJR 1.
47
State of Kerala v. Unni (2007) 2 SCC 365.
48
1965 SC 1585.

14
as “shall not be called in question in any Court”. With this, the two grounds on which courts
may control the delegated legislation may be examined.

a) Substantive ultra vires

It occurs when the administrative agency frames rules which exceed the powers that
conferred such rules under the enabling Act. It is when a subordinate legislation goes beyond
the scope of the authority conferred by the parent Statute or by the Constitution. 49 If the
power so conferred are purportedly exceeded, such rules framed are to the extent of their
contrary deemed ultra vires and void. In Banyotti Varti v. Kassala People’s Executive
Council50, the Council made an order under section 28 (1) of the People’s Local Government
Act, 1971 prohibiting sale, consumption and possession of liquor within the Province.51
Clause 7 of part 3 of the schedule of the Act states that the Council have power to specify and
regulate place for consumption of native liquor.

On the other hand, section 15(2) of the Liquor Licence Act, 1923 provides that the People’s
Executive Council shall have power to forbid the licence holders in any particular place or
generally in Province to sell or give alcoholic liquor to any person or class of persons. The
licence holder challenged the order as being ultra vires. The Court of Appeal held that
although the Council has no power under section 28(1) of the People’s Local Government
Act, 1971, it has such power under section 15(2) of the Liquor Licence Act, 1923. Looking
critically at this decision, one may submit that the decision is wrong as 1971 Act does not
provide wider power to the Council nor can it be inferred that section 15(2) of the Liquor
Licence Act, 1923 incorporated such power. For this section only regulate the consumption,
sale and possession but did not prohibit the consumption in toto. Secondly, there is a question
as to which law to be applied, general law (1971 Act) or specific law (1923 Act)?

The statutory context as illustrated above can be explicitly understood that the legislative
intention in the Liquor Licence Act was on licensing only. However, the Kassala Province
Court in the case of Abdel Fatah Hamad El Zobair v. Sudan Government52, made a correct
proposition of the law on substantive ultra vires. In that case, the petitioner’s licence was

49
C. K. Takwani’s Lectures on Administrative Law, 6th edition (Lucknow: EBC, 2016) p.120.
50
CA-Adm-App. 38-1977(unreported) as cited in Khalid Abdalla Khalid, Some Problems Relating to the Legal
Control Licensing Authorities in the Sudan, (University of Khartoum Press 1978) p. 25-26.
51
Section 28(1) of the 1977 Act authorised the Council to make orders having the force of law in the Province
in exercise of its powers and duties in accordance with the Act.
52
CS-7-1977(Unreported) supra note 49 at 26.

15
revoked by junior administrative officer who had no authority to revoke it. The Province
court quashed the decision on the ground of ultra vires. In India, courts have maintained
consistently the need for delegate to adhere to statute in making rules. The power delegated
by the statute is limited by its terms and subordinate to its objects. Administrative authority
must act in good faith and reasonably.53 Takwani says that all decisions of the delegate,
whether characterised as legislative, administrative or quasi-judicial must be in harmony with
the Constitution, parent Act and other laws of the land.54 In Mohammed Yasin v. Town Area
Committee55, under the parent Act, the Municipality was empowered to charge fee only for
the use and occupation of some property of the Committee, but the Town Area Committee
framed bye-laws and imposed levy on wholesalers irrespective of any use of occupation of
the property by them. The Supreme Court held that the bye-laws were ultra vires the powers
conferred on the Committee.

b) Procedural ultra vires

It is in circumstances when the parent Act laid down procedural requirements as prerequisite
precedents and that the administrative authority has to fulfil or follows when making
subordinate legislation. And when the administrative agency undermines such prescribed
procedures, the rules so framed shall be deemed ultra vires and possibly be declared void by
the courts. Such prescribed procedures for framing rules include publication of the draft rules
or laying them before the Parliament.56 However, failure to observe the procedural
requirements does not necessarily always invalidate the rules.57 This is because of the
distinction between mandatory and directory requirements where the non observance of the
former can lead to invalidation of the rules whereas the latter does not. In Banwarilal
Agarwalla v. State of Bihar58 , the Mining Act made it mandatory for the Central Government
to consult the Mining Board before making rules. The Supreme Court held that the rules
framed without consulting the Mining Board were invalid being ultra vires the procedures
prescribed by the enabling Act. The idea of mandatory and directory category indicates the
legislative intention and priority in making the legal conditional valid.

53
Express Newspaper (P) Ltd v. Union of India (1985 1 SCC 641.
54
Supra note 48 at 120-121.
55
AIR 1952 SC 115.
56
See C. K. Takwani Supra note 48 at 154.
57
For detailed, see Jain & Jain’s Principles of Administrative Law, (2013) pp. 136-138, I. P. Massey’s
Administrative (2017) pp. 127-130, M.C Jain Kagzi, The Indian Administrative Law, (2016), pp. 147-149, C. K.
Takwani, Lectures On Administrative Law.
58
AIR 1961 SC 849.

16
The judicial trend in upholding mandatory is also affirmed by the Sudanese courts in various
judgements. One of such judgements was made in the case of Mohammed Ahmed Babiker v.
Sudan Government59 where the Sudan High Court held that statutory procedural requirements
as mandatory as section 17 of the Road Traffic Act, 1938 provides that “before granting an
endorsement, the licensing authority may require the applicant to produce evidence that his
character is not such as to render him unfit to drive such vehicle.” But the authority
disregarded the provision on the ground that several convictions of traffic offences rendered
the petitioner unfit to drive public vehicle under the said law. The Court interpreted the
section as mandatory (although the section uses the phrase “may”) and upheld the plea for
mandamus to compel the licensing authority to issue endorsement.

2) Parliamentary control

Since the powers are delegated by the Legislature, the Legislature must also participate in the
control mechanism exercise. Therefore, Administrative authorities on whom powers have
been conferred to frame rules must always remain subject to the legislative control and “the
exercise of delegated powers can always be directed, corrected or cancelled by the
principal”.60 In Avinder Singh v. State of Punjab61, Krishna Iyer J. stated that “Parliamentary
control over delegated legislation should be a living continuity as a constitutional necessity”.
As a principle under the doctrine of SoP, Jain & Jain have rightly reasoned the idea of
Parliamentary control over DL 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 the right of the legislature, but also its duty, as principal to
see how its agent(executive) carries out the agency entrusted to”. 62

The logic behind Parliamentary control therefore is for the Legislature to act as a watchdog
over the making of DL. In the event where the delegate contrives the statutory context of the
enabling Act, the Legislature may response with possible criticism on such contravening
rules. Another reason for legislative control of subordinate legislation is to ensure that the
rule of law and doctrine of SoP are observed in the rules. As more powers continue to be
conferred on the executive, it is likely that they may be misused, an act if allowed amounts
to a blow on the rule of law and SoP in a democratic polity. It is also to serve as an

59
SLJR Civil Cases, Vol. VI, 1950-1951 p 72.
60
See, I. P. Massey supra note 11 at 111.
61
(1979) 1 SCC137.
62
Jain & Jain supra note 16 at 143.

17
alternative forum in areas where and when judicial review power of the courts is limited.
However, one sees the difficulty in the present day party system based majoritian where the Commented [AM5]: majoritarian

party rule and remain in powers as long as it commands majority. Can it be safely asserted
that the legislative control is practically effective in most case? The question is difficult to
be precisely answered since it requires a practical survey on the practical working of the
control from various jurisdictions which does not have enough space for the purpose of this
paper. Looking at the United States, the United Kingdom, India and the developing
constitutional systems such as South Sudan, one may clearly see the differences. In the US,
the system is not widely known or practice as two Sudans63. In the UK and India
Parliamentary control of DL is widely and broadly practiced differently from one
jurisdiction to another. In the UK, it is more effective as the control is exercised in
somewhat non-political sphere of the Parliament. There are few means for ensuring the
Parliamentary control of subordinate legislation namely; Laying and Scrutiny Committee.
They may be briefly discussed in the following manner.

a) Laying

The purpose for laying is to notify the Parliament as to what and how the regulations so
delegated have been made by the executive. Once such notification has been served by way
of laying before the Parliament, the Legislature overview or challenge subordinate
legislation so made by the administration. This of course, ensures the protection of the
fundamental rights of the citizens in case the administration has framed rules that infringe
fundamental rights and cause the administration to frame such rules within the permitted
sphere as the context of the parent Act requires and not to usurp the judicial or legislative
functions. Here, the executive presents the framed rules before the legislature for the same
to scrutinize. Laying process may be mandatorily or directorially required either by the
Constitution64 or by statutory provisions of the relevant enabling Act. Laying of the rules is
required to be effected as soon as such subordinate legislation is published in the Official
Gazette.

63
However, there is no Committee on Subordinate Legislation but each Ministry or department is required to
table such rules so framed before the specialized Committee. There is in each House of Parliament specialized
Committees which supervised and securitized the work of each department that fall under such Committee.
64
See Articles 123(2)(a), 252(2)(c), 256(3) of the Constitution of India and Articles 189(2)(3), 191 and
192 of the Constitution of South Sudan which carry the same meaning of powers c onferred upon the President.

18
Upon laying the rules, the Parliament may make appropriate comments or make or cause to
make such modification or change or nullify. However, the instances in which subordinate
legislation are nullify are very rare and do not often occurred or is not always sort to since
such resolutions may disarm the Government from executing necessary powers for public
good. The Court in case of Altas Cycle Industries Ltd. v. State of Haryana65, observed that
there are three different types of layings which assume different degree of control namely;
laying without further procedure; Laying subject to negative resolution and Laying subject
to affirmative resolution.66 Under the three layings, it may be said that each may be
mandatory or directory. Determining mandatory or directory of laying is not easy. However,
the Court settled the law in the case of Re’ Kerala Education Bill,67 when it ruled that “after
the rules are laid before the Legislative Assembly, they may be altered or amended and it is
then that the rules as amended become effective”.

b) Scrutiny committee

This is sometimes referred to indirect control by Legislature. As its name suggests, the role
of Committee is to review rules framed in detail with accuracy by the selected members of
the House of Parliament. This committee examines the subordinate legislation and report to
the concerned House of Parliament and may suggest whether the Administration has
exceeded the intention of Parliament or it has departed from it or has affected any
fundamental rights.68 In Indian and the UK experiences, the Committee is always headed by
the leader of opposition. The modus operandi of the committee is in two ways, it either
intimate the administrative agency to forward memos about the rules framed or summons a
person or persons who is in immediate charge to appear before the Committee. In perusing
the memos or while listening from the person in charge of framing of rules who is so
summoned to present the regulations or rules, the committee examines the scope of the DL
on the fundamental rights, question of jurisdiction of the courts, taxing powers of the
legislature or language lucidity which may cause a misleading application of the rules or
regulations and the legislative scheme of the Act.69

This procedure is adopted because of inadequate legal knowledge of the members of

Parliament whom majority are purely politicians and thus, it is seen necessary that seeking a
65
(1979) 2 SCC 196.
66
See for a detailed elaboration, Jain & Jain supra note 16 at 144-148.
67
AIR 1958 SC 956, 975.
68
See for elaborative details, I. P. Massey supra note 13 at 118.
69
See, I. P. Massey p. 118-119.

19
help from a specialized committee may enhanced the work of Parliament for efficient
subordinate legislation. In most of the jurisdictions, each House of Parliament has such
committee. In England, there is a Committee called Select committee on Statutory
Instruments, first established by the House of Commons in 1944. In India, it is the Lok
Sabha Committee and Rajya Sabha Committee on Subordinate Legislation as well as
Committee of Legal and Legislative Affairs in South Sudan. The committee after having
perused the framed regulations, report to the concerned House with its findings or
observation on the rules for the House to either approve or amend or as it may deems
appropriate.

3) Procedural control

This is a control mechanism which is always incorporated in the Act. It is also called
statutory safeguards of the subordinate legislation. The lofty reason for having this type of
control mechanism is due to the question posed early as to whether the contemporary
majority party system may be said to provide effective control. Since judicial power for
review can be sometimes excluded expressly or impliedly, the subsequent absent of
effective Parliamentary control can be supported by means of statutory safeguards
conditional precedents subject alone the powers conferred should be exercised. This control
mechanism is an administration oriented than other two preceding types of control. One
such means is to provide procedural control in the enabling Act is to precisely limit the
power of the delegate. Takwani rightly opines that:

“If the extent of power is not properly defined in the parent Act and the language use is very
broad, the executive authority may usurp some powers of the legislature and may be tempted
into unjustified interference with the rights of the individuals” 70

Without procedural safeguards, many constitutional principles such as DL and rule of

law may be promised unrealities with the majority backup of the executive from Commented [AM6]: error

Parliament. From this description, it will serve a better purpose to examine the statutory
safeguards. Generally, there are three procedural safeguards which may be provided in
the statute namely; drafting, publication and consultation.

70
C. K. Takwani supra note 48 at 174.

20
 i) Drafting

One of the purposes for administrative oriented control is to ensure that DL is drafted in a
confirmative to the statute. Thus, it needs experts to be involved. The need of an expert in
the drafting stage is indeed genuine because he will assist in avoiding the use of vague and
misleading language which causes difficulties in the interpretation. Sometimes the expert
draftsman may be from the administrative department or legislative department. In South
Sudan for instance, section 38 of the Local Government Act, 2009 made it mandatory for
the Local Governments and Local Legislative councils to forward bye-laws to the
concerned head of legal Administration for confirmation and the head of Legal
Administration will thereafter express his opinion, comment, suggestion on the rules or
may deny confirmation if the bye-law is ultra vires the law, State or National Constitution. Commented [AM7]: Source ? typical Paraphrasing

The need to avoid ambiguity made the Indian’s Committee on Subordinate Legislation to
recommend that the language subordinate legislation must be clear and simple. In Daiichi
Sankyo co. Ltd v. Jayaram Chigurpati71, the Court stated that “Object and Reason Clause”
must be also introduced in the delegated legislation as it would help in proper
interpretation of the rules.

ii) Publication

DL is an important instrument that provides rights, duties and affects the existing rights of
the individuals. Jain & Jain state that “......... in order to take effect, must be publish or
promulgated in some suitable manner, whether such publication or promulgation is
prescribed by the parent statute or not”72 Generally, DL acquires its force or effect from
the date of publication in the official gazette. However, there is a difference of opinions in
the mode of publication. This difference happens because of publication being mandatory
or directory. But always, due regard has been had to the scope and wording of the
statutory provisions. However, “where the parent statute prescribes the mode of
publication or promulgation that mode must be followed”.73 Harla v. State of Rajasthan74
is a case where the delegated legislation was passed but not published nor made known to
the public in any manner. The Court stated:

71
(2010)7 SCC 449.
72
Jain & Jain supra note 16 at 157.
73
Ibid.
74
AIR 1951 SC 467.

21
 “the thought that a decision reached in the secret recesses of a chamber to which the public have no
access and to which even their accredited representatives have no access and of which they can
normally know nothing, can nevertheless affect their lives, liberty and property by mere passing of a
resolution without anything more is abhorrent to civilized man, it shocks his conscience.
Promulgation or publication of some reasonable sort is essential”

But in Raza Buland Sugar Co. Ltd v. Municipal Board, Rampure75, the Court made a
distinction between mandatory and directory publication. It held that the statutory
provision requiring publication of rules before imposition of tax was mandatory but the
manner in which the rules were required to be published was directory and there was
substantial compliance with the requirement of publication, the rules were valid.

iii) Consultation

Sometimes the Act may provide provisions that require the administration to consult the
persons who are likely to be affected by the DL. It is one of the safe safeguards that the
persons interested may claim the right to be heard by the administration before making
such rules. It makes administrative rule-making a democratic process and therefore
increases its acceptability and affectivity.76 In making consultation, views, experiences and
expertise opinions are exchanged and shared between the authority and the interested
persons or organisation. Thus, it provides a platform for practitioners in a particular
interested organisation to explain what they think the rules could be and if possible what to
be included to make the implementation of the rules more easy. Consultation is useful
although the administration in most cases is not bound by the opinions of the consulted
persons. It also guides the administration not to exercise its discretionary power arbitrarily.
Jain & Jain say:

“Consultative technique is useful in balancing individual interests and administ rative agency.
Consultation ensures that delegated legislation is passed by the authority concerned with adequate
knowledge of the problems involved and that the rule-making agency has before it all relevant
materials so that it does not make decisions on insufficient information”77

Because of fear for abuse of delegated power, consultation is adapted and regarded as
important to be considered since the executive is empowered with the discretionary power
which if not provided and exercised with such safeguard can easily resulted to violation of

75
AIR 1965 SC 895.
76
I. P. Massey supra note 13 at 123.
77
Jain & Jain supra note 16 at 170.

22
the doctrine of SoP and possible infringement of the rights of the interested persons. In
most cases the enabling Act does not provide provision for consultation to be made prior
to the framing of the rules by the administration. In event the Act is silent about
consultation; the effect of the rules on the interested persons will be examined to see the
degree of their effect on the interests. Where the requirement is mandatory, failure to
observe will vitiate the rules and will therefore be held ultra vires. This was the question in
Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury
Mushrooms78. In that case, the English Industrial Training Act, 1964 made a provision for
the establishment of industrial training board. The minister was required by the Act to
consult any organisation which appear to him to be representatives of the people working
in the relevant industry. The minister consulted “National Farmers Union” but did not
consult “Mushroom Growers Associations”, a subsidiary of the Union. The Court held that
consultation by minister was mandatory. It further said that consultation amounted to the
communication of a genuine invitation extended with a receptive mind, to give advice.
Since there had not been a communication and the opportunity of responding, there had
not been consultation.

vi. Conclusion
Reading the above discussion, one may be tempered to conclude with a question as to Commented [AM8]: tempted

whether the principle of DL is a rectification of rigidity of the doctrine of SoP. To answer this
question, it puts one into difficulty to provide a precise answer. However, it is discernable in Commented [AM9]: discernible

the discussion in the contrast of the two principles where the purpose of each principle supply
and supplement one another than to supplant. The claim of abstract theorist of SoP that any
legislative or judicial function should not be delegated to the executive or any of the three
organs cannot hold any truth in the present for number of reasons stated in the discussion.
One such nexus of the principles is that while the different types of delegated legislation may
be regarded as exceptions formulated beside the doctrine of SoP, the various control
mechanisms of DL act as means to ensure the prevention of usurpation of the legislative and
judicial functions and to avoid the violation of the basic principle of SoP by the executive.

78
(1972) 1 ALL ER 280.

23