Delegated Legislation – Reasons for Growth – Judicial Control

What is Delegated Legislation?

- Delegated Legislation refers to Laws made by authorities other than
Legislative Organs of a State.
- Delegated Legislation refers to those laws made by persons or bodies to
whom Legislature has delegated law-making authority.
- Delegated Legislation is also known as ‘Legislative Power of the
Executive or Administration’. It is also known as ‘outsourcing of law-
making power’. It is also called as Subordinate Legislation. (Other
Names)
- According to Halsbury’s Law of England,” Delegated Legislation is an
instrument of a legislative nature made by authority other than the
legislature.” (Definition)
- To put it in simple terms, delegated legislation refers to all law-making
that takes place outside the legislature which is generally expressed as
rules, regulations, bye-laws, orders, directions, notifications etc.
- Examples; Rules, Regulations and Bye-Laws framed by Pune Municipal
Corporation or SPPU.
- Delegation implies the power to withdraw delegation.

Reasons for the Growth of Delegated Legislation –

Since the Parliament cannot deal with each and every subject by itself, it
delegates the law-making function to the authorities established by law.
1. Transition to Welfare State –
- The object of a Welfare State is to work for the socio-economic
betterment of its people.
- For that purpose, the State has to enact numerous laws on various
subjects like public health and sanitation, town planning, pollution
control, water supply and drainage, public transportation etc. It is
possible to do so only if the Parliament works for 365 days x 24 hours.
- Hence, Delegation of law-making power to other authorities becomes
imperative.
2. Increase in State’s Activities –
 - In today’s dynamic world, a State is not merely concerned with
maintaining internal law and order and fighting off external aggression.
It has to work for the benefit of its people. It has to keep pace with the
changing times.
- The Legislature apart from law-making function scrutinizes the
performance of the Government, formulates budgets and serves as a
whistle for ventilating people’s feelings.
- Thus to save Legislature’s time in enacting laws over diverse subject-
matters, delegation is necessary.
3. Lack of Technical and Expert Knowledge –
- Elected Representatives of the people are not necessarily experts on a
particular subject. Hence, to deal with specialized subjects, delegation of
law-making power to persons or authorities who possess expertise in
such subjects, has become imperative.
- For example, the Parliament of India has enacted a skeleton
Environment (Protection) Act, 1986 to improve and protect the
environment. But, in order to achieve that object, the Parliament of
India has delegated law-making powers to certain authorities who frame
Rules to deal with particular subjects such as Air, Water, Noise, Land,
Hazardous Wastes and Chemicals, E-Waste, Bio-Medical Waste etc.
4. Unforeseen Contingencies –
- The Parliament of India does not sit in the House for 365 days. It goes
into recess at frequent intervals.
- Also, the ordinary law-making process is lengthy and time-consuming.
- In order to deal with unforeseen contingencies which require immediate
action such as Earthquakes, Floods, Pandemics etc, delegation of law-
making power becomes imperative.
5. Expediency and Flexibility – (Customization of Laws)
- A General Law cannot cater to the needs of the entire society. Thus,
General Law needs to be modified to a certain extent to meet local
needs and conditions.
- Delegation Legislation thus facilitates customization of laws to meet the
local needs. Details in a skeleton Act are thus filled by local authorities,
as per their needs.
Judicial Control of Delegated Legislation –
Delegated Legislation is subject to the scrutiny of the High Courts and the
Supreme Court where their validity is contested. Doctrine of Ultra Vires plays a
crucial role in determining the validity of Delegated Legislations.
In the following cases, Delegated Legislation shall be declared null and void;
1. Parent Act being ultra vires the Constitution.
2. Delegated Legislation being ultra vires the Parent Act.
3. Delegated Legislation being ultra vires the Constitution.
This is done by considering two aspects;
i. Substantive Ultra Vires – Where the Delegated Legislation is beyond the
scope of authority conferred on the delegate to enact, it is Substantive Ultra
Vires.
ii. Procedural Ultra Vires – Where the Delegated Legislation is enacted without
complying with the procedural requirements laid down by the Parent Act, it is
Procedural Ultra Vires.
Case 1: Parent Act being Ultra Vires the Constitution –
Where the Parent Act or some of its provisions which confer the authority to
delegate are ultra vires the Constitution, then the Parent Act would be
declared as null and void. Consequently, the Delegated Legislation enacted
under such Act, shall also be held null and void.
A Parent Act may be held ultra vires the Constitution on any of the following
grounds;
i. When Essential Legislative Functions are delegated (Excessive Delegation),
which is violative of the Doctrine of Basic Structure. (Re Delhi Laws Act Case/
Hamdard Dawakhana v. Union of India)
ii. When the Parent Act violates the Scheme of Distribution of Legislative
Powers i.e., Schedule VII.
iii. When the Parent Act is violative of Part III of the Constitution of India.

Case 2: Delegated Legislation being Ultra Vires the Parent Act –

Under the following circumstances, a Delegated Legislation is held to be Ultra
Vires the Parent Act;
i. When the Delegated Legislation exceeds the Scope of Objects and
Purpose of the Parent Act.
ii. When the Delegated Legislation is in conflict with or repugnant to the
Provisions of the Parent Act. (Ram Prasad v. State)
iii. When the Delegated Legislation is enacted by not complying with the
Procedural Requirements laid down in the Parent Act for the enactment
of such delegated legislation. In Radhakrishna v. State of M.P, the
Parent Act provided that Rules are to be made by the State Government
only with the concurrence (consultation) of the Central Government.
However, Rules were made without consulting the Central Government,
which were held to be invalid.

Case 3: Delegated Legislation being Ultra Vires the Constitution –

Where, Delegated Legislation violates any of the Provisions of the Constitution
especially Fundamental Rights, then it is said to be Ultra Vires the Constitution.
(Chintaman Rao v. State of M.P – In this case, the Delegated Legislation was
violative of Art. 19(1)(g) of the CoI)
In Lakshman v. State of M.P, Notification issued under the Parent Act
prescribed excessive and prohibitory rates of grazing for Foreign Cattle. Foreign
Cattle meant cattle owned by persons who were not residents of M.P. The
Notification was held to be violative of Art. 19(1)(e) and (g).

Case 4: Other Misc. Grounds

i. Mala fide – Delegated Legislation is held to be mala fide if the Delegate
exercises his powers in bad faith or with an ulterior motive. For example, in
1897 Pune Plague Commissioner W.C. Rand’s men exercised the powers
conferred upon them in bad faith. They were given the task of fumigating the
houses and to find out suspected Plague patients. However, they acted in a
mala fide manner by forcefully entering the houses, burning foodgrains and
other things, stealing precious articles, publicly stripping men, and women etc.
In some cases, the Police Officers even raped women.
ii. Unreasonableness – In Air India v. Nargesh Meerza, one of the Air India
Service Regulations stipulated that Air Hostesses would be terminated in the
event of their first pregnancy. It was held to be Unreasonable, therefore was
struck down.