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E-NOTES
Class : B.A.LL.B IV Semester

Paper Code : LLB 208

Subject : Administrative Law

Faculty Name : Mr. Dhruv

UNIT-2
Meaning and Concept of Delegated Legislation
Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the legislature's
authority. Often, a legislature passes statutes that set out broad outlines and principles, and
delegates authority to an executive branch official to issue delegated legislation that flesh out the
details (substantive regulations) and provide procedures for implementing the substantive
provisions of the statute and substantive regulations (procedural regulations). Delegated legislation
can also be changed faster than primary legislation so legislatures can delegate issues that may
need to be fine-tuned through experience. Legislation by the executive branch or a statutory
authority or local or other body An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament.

Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make
law and rules through delegated legislation. The legislation created by delegated legislation must
be made in accordance with the purposes laid down in the Act. The function of delegated
legislation is it allows the Government to amend a law without having to wait for a new Act of
Parliament to be passed. Further, delegated legislation can be used to make technical changes to the
law, such as altering sanctions under a given statute. Also, by way of an example, a Local
Authority have power given to them under certain statutes to allow them to make delegated
legislation and to make law which suits their area. Delegated legislation provides a very important
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role in the making of law as there is more delegated legislation enacted each year than there are
Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created. There are several reasons why delegated legislation is
important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation
can be amended and/or made without having to pass an Act through Parliament, which can be time
consuming. Changes can therefore be made to the law without the need to have a new Act of
Parliament and it further avoids Parliament having to spend a lot of their time on technical matters,
such as the clarification of a specific part of the legislation. Secondly, delegated legislation allows
law to be made by those who have the relevant expert knowledge. By way of illustration, a local
authority can make law in accordance with what their locality needs as opposed to having one law
across the board which may not suit their particular area. A particular Local Authority can make a
law to suit local needs and that Local Authority will have the knowledge of what is best for the
locality rather than Parliament. Thirdly, delegated legislation can deal with an emergency situation
as it arises without having to wait for an Act to be passed through Parliament to resolve the
particular situation. Finally, delegated legislation can be used to cover a situation that Parliament
had not anticipated at the time it enacted the piece of 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.
A portion of law-making power of the legislative is conferred or bestowed upon a subordinate
authority. Rules & regulations which are to be framed by the latter constitute an integral portion of
the statute itself. It is within power of parliament when legislating within its legislative few, to
confer suborbital administrative & legislative powers upon some other authority. Subordinate
legislation, is the legislation made by an authority subordinate to the sovereign authority, namely,
the legislature. According to Sir John Salmond, "Subordinate legislation is that which proceeds
from any authority other than the sovereign power and is, therefore, dependent for its continued
existence and validity on some superior or supreme authority." Most of the enactments provide for
the powers for making rules, regulations, by-laws or other statutory instruments which are
exercised by specified subordinate authorities. Such legislation is to be made within the framework
of the powers so delegated by the legislature is, therefore, known as delegated legislation. Thus all
law making which takes place outside the legislature expressed as rules, regulations, bye laws,
orders, schemes, directions or notifications etc is termed as delegated legislation. In the area of
delegation of legislative power, the courts have recognized and applied the doctrine of excessive
delegation. A review of the relevant judgments shows that the courts do support the thesis, that
delegation of legislative power is valid only if the delegating statute declares the policy which the
delegate is to execute in excercising rule making power.

While we are living in this 21st century it has become easier for us to view the surrounding which
is gradually taking the course of being welfare and service provided by nature thereby overtaking
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it’s nature of individualism. A welfare state welcomes a wide growth in a government’s authority
which stands as the essence of any welfare state. Therefore for such an expansion in the authority
of the government present, there is a requirement of delegation of powers, function and authority in
order to ensure effectiveness in the administration procedure. The task of augmenting the
competency of the government to validate it to handle the social and economic issues and
reconstruct the same has been accomplished through the methodology of delegation of legislative
power to it. The very same delegation of power stands interrogative when it comes to its
constitutionality. This question is indeed natural and original in form.

Global View

Globally, delegated legislation is welcomed in several countries. In case the Constitution of a

specific country is silent regarding the definite limit of the delegated legislation, the responsibility
of the same lies on the courts to decide. There is a presence of clear silence on the part of the
constitution of countries like the USA, Canada, India, Australia, South Africa in this context. While
in the UK large volumes of administrative rule-making is not subject to parliamentary scrutiny but
there are statutes to check the permissible limits of the same.

Australia

With respect to Australia, it was the case of the Victorian etc. Co. and Meakes v. Digian [1], where
the court rejected the doctrine of separation of powers over delegation of legislative power.
Therefore the validity of such power was also subject to scrutiny before its final effect.

United Kingdom

While we take a look into the practice of the constitutionality taking into view England, it can be
well infer that limits of the delegated legislation is laid down in the statute itself and therefore the
executive has to work within the very same permissible limit. This becomes an indispensable
element in the United Kingdom’s administration procedure in order to ensure the functioning of
Judicial Review.

United States of America

On the contrary when we turn to the United States, it is the principle of Separation of Power that
ensures no encroachment among departments of the government and therefore the instance of
delegation of legislative power does not arise. It was in the case of Field v. Clark [2], where the
same was decided. Broadly if the concept of Separation of Powers is taken into knowledge, it can
be learnt that in the want of the new executive, the doctrine is neither feasible nor welcoming as
also held by Marshall CJ who perceived the presence of powers of questionable nature and
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therefore drew a conclusion that it was within the potential of the legislative to delegate their
powers to that of the executive branch.

Canada

What appears in the case of Canada is that the only limitation with regard to the delegation of
legislative power is the responsibility on the part of Parliament to delegate only those powers
which can be recalled by itself when necessary.

South Africa

For a modern government, one of the essential elements of governance is that of delegated
legislation. When there is law-making on the part of the provinces, the requirement of the same is
delivering the function with accordance to the parent act. This acts as a role of constitutionality in
the case of South Africa’s administration.

India

In the case of India, the constitutionality of administrative rule-making should be subject to

discussion under the umbrella of three different periods ranging from the privy council to that of
the present apex court, the Supreme Court of India. The article further deals with the weapon of
constitutionality with light to India in depth.

It was the famous R v. Burah [3], where the word constitutionality was first taken under concern by
the privy council. It was rather questionable by nature. Although the decision of the court
encountered interpretations, the inference drawn was uncertain by nature. Where one of the
interpretations was that as the Indian legislature was not a delegate of the British parliament,
permissible limits of delegated legislation therefore does not exist, the other said on the jurisdiction
of the privy council. It had limited itself till the extent of conditional legislation and thus delegation
of legislative power was not to be entertained. With cases of the same traits climbing the privy
council increased, the clear conclusion that could be inferred was the question related to the
sanctioned limits of delegations remained debatable.

With the wheels turning towards the Federal court, it was the case of Jatindra Nath Gupta v.
Province of Bihar [4], the validity of section 1(3) of the Bihar Maintenance of Public Order Act,
1948 was tested. This provision was challenged on the grounds that the same vested powers on the
provincial government to stretch the life of the Act to that of a year as it may deem fit. The court
concluded the case with the decision that the power vested stood unconstitutional for the Act in
hand is an essential legislation. The court proceeded declaring that in India there would be no
delegation of legislative power.
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With this decision, hesitancy was created regarding the limits of delegation of legislative powers
which initiated the growth of the Supreme court of India as the highest court of appeal.
Clarification on the part of law in question was required to be used in future cases to come
therefore it was under Article 143, which lays down the power of the president to consult the
Supreme court, the President sought for the opinion of the court on the question of the
constitutionality of three different acts covering different time frames.

The fate of these acts were decided in the case of Delhi Laws Act, 1912, Re Delhi case [5] which
was responsible for setting a benchmark in the field of delegated legislation. The Supreme Court in
this case considering the views of two extreme thoughts came to the decision that the three
different acts were to be held valid. It was only in the case of section 2 of the Part C States (Laws)
Act, 1950 that the part which bestowed the power of repeal and modification of legislative policy
was held to be invalid on grounds of excessive delegation leaving the rest of the part as valid.

These grounds were decided in the case of St. Johns Teachers Training Institute v. National
Council for Teacher Education [6] that helps to decide whether a particular legislation amounts to
excessiveness or not. While the previous case laws and the facts clearly indicate that excessive
delegation stands unconstitutional by nature itself, the fact that too much power on one hand invites
danger cannot be ignored also. When a statute is under the challenge to prove the constitutionality
of the same, it should not be arbitrary by nature and function and therefore should also not be
violative with any provision of the constitution. The necessary requirement that needs to be abided
by is the principle of reasonableness that is Article 14 and Article 19 of the Indian constitution. It is
therefore settled that any rule- making function which acts as a prejudice for any person without
the authority or rule of law is to be declared invalid by its nature.

The Supreme Court of India with its decision in several cases have set out norms of jurisprudence
which now acts as a guideline for any delegation to fall under the category of either being
constitutional or unconstitutional by nature. The inferences drawn from the cases decided by the
apex court are as follows:

It was the case of Indian oil Corporation v. Municipal corporation, Jullundhar [7]where the violate
any legislative policies of the same. To be precise the court hinted in saying that a delegate is not
supposed to possess court decided that any delegated legislation should be consistent with the
parent act and therefore should more legislative power than that of a delegate.

For the essential legislative functions which include laying the policy to govern a said act, is not
subject to delegation by the legislature. The same statement can be inferred in a different way
which would signify that delegation of non–essentials cannot take place, however significant they
may be.
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After debates, discussions and thoughts, the courts have decided to take any divergent statement as
a suitable policy for the Act in concern which will be necessary for determination of the grounds of
constitutionality.

Unreasonableness is one of the elements necessary for determination of validity of a delegated

legislation. The check on abiding of any procedural safeguards if laid down in the main act also
comes along with it.

The Apex court made it clear that the motive behind the delegated legislation is not a valid ground
to determine the competence of the authority. Rather the court would take into concern the
relevance and the importance of the context and the background in which the rule making power
has been used.

A necessary view of the court regarding the violation of public interest was that it supported the
adoption of the doctrine of proportionality for determining the constitutionality of the rule making
power.

It was in Bihar State Govt. Secondary School Teachers Assn. v. Ashok Kumar Sinha [8], the court
held that the decision produced by the court cannot be turned over by any administrative authority
by bringing a change in its rules for it would directly amount to contempt of court. This decision
hinted that the court would not leave any scope for the establishment of excessive delegated
legislation.

The scope of delegated legislation is wide enough to involve several other grounds to determine its
constitutionality but the grounds which are already mentioned are firm enough to understand the
necessity of permissible limits for any delegated legislative function. Article 245 of the Indian
Constitution lays down that the potential of delegation which is it being a constituent ingredient of
the legislative power. Therefore the object of constitutionality is not to restrict the functioning and
the aim of delegated legislation but to act as a filter to avoid unnecessary conflicts in the
administrative mechanisms.

In the case of Kerala Education Bill [9], the court upheld delegation to government as not to be
“unguided” and “unconstitutional” by nature by relying on two grounds which ensures protection:

Laying down of the preferred rules before the legislature.

Legislature is required to pass a resolution before the government takes an action which shall
indicate that the legislature has not abdicated its role.

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Necessity of Constitutional Check on Taxing Power

Taxing power is one of the inherent powers of the State. Determination of the constitutionality of
the same power stands essential for the taxing power is one of the essential elements for the
regulation of socio – economic and political framework of the entire country. The analysis that can
be drawn from the common decisions taken by various courts across the country is that a taxing
power being a necessary power of the legislature cannot be delegated further but the power to levy
tax subject to the fact that the essential areas will be handled by the legislature itself. India, a
democratic country, has an efficient hold in the field of taxation. Providing ways to delegation of
this wide power can be seen as a direct instrument to weaken the parliament and therefore it is
advisable that there remains a hold on this power supremely in the hands of the legislature.

What can be inferred from the above writings is that the judiciary prefers the mechanism of
delegated legislation and therefore to avoid insurrection in the administrative process, the
requirement of constitutionality of the rule-making power comes to play. It is true that be it the
doctrine of separation of power or the rule of law, both aim at independence of the government
organs and therefore delegated legislation becomes unfavorable.But the fact that both these
doctrines cannot be implemented without effective mechanism of the rule-making power. In this
modern world where there is a growing necessity of technicality, viability, experiments, delegated
legislation requires introduction. A method that becomes essential must be implemented with
safeguards that is delivered by determining the social justice in the society.

The Legislature is quite competent to delegate to other authorities to frame the rules to carry out the
law made by it. In the case of D. S. Gerewal v. The State of Punjab , K.N. Wanchoo, it was
observed that there is nothing in the words of Article 312 which takes away the usual power of
delegation, which ordinarily resides in the legislature. The words "Parliament may by law provide"
in Article 312 should not be read to mean that there is no scope for delegation in law made under
Article312…." In the England, the parliament being supreme can delegated any amount of powers
because there is no restriction. On the other hand in America, like India, the Congress does not
possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the
supreme court of the United States had held Position in the USA: Two phenomena operate in the
USA namely—1. Separation of Power 2. “Delegatus non potest delegare”. Position in England: In
England, the Parliament is Supreme, unhampered by any constitutional limitations with wide
legislative powers on the executive. Parliament being supreme and it power to legislate being
unlimited, there is nothing to prevent Parliament from delegating its legislative power to the
executive officers or other subordinate bodies. In England, the practice of delegating legislative
power has certainly been facilitated by the close fusion of the legislative and executive power
resulting from the development the cabinet system of government in England. Position in India In
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Queen v. Burah wherein the Privy Council had validated only Conditional Legislation and
therefore as per its reasoning delegated legislation is not permitted. The administration of civil and
criminal justice within the said territory was vested in such officers as the Lieutenant Governor
may from time to time appoint. Again in King v. Benoari Lal Sharma Conditional legislation was
again applied by the privy council wherein the validity of an emergency ordinance by the
Governor-General of India was challenged inter alia on the ground that it provided for setting up of
special criminal courts for particular kinds of offences, but the actual setting up of the courts was
left to the Provincial Governments which were authorized to set them up at such time and place as
they considered proper. The Judicial Committee held that "this is not delegated legislation at all. It
is merely an example of the not uncommon legislative power by which the local application of the
provisions of a statute is determined by the judgment of a local administrative body as to its
necessity." The Privy Council held that “Local application of the provision of a state is determined
by the judgment of a local administrative body as to its necessity.” As regards constitution of the
delegation of legislative powers the Indian Legislature cannot be in the same position as the
prominent British Parliament and how far delegation is permissible has got to be ascertained in
India as a matter of construction from the express provisions of the Indian Constitution. It cannot
be said that an unlimited right of delegation is inherent in the legislature power itself. This is not
warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely
upon its being used as an ancillary measure which the legislature considers to be necessary for the
purpose of exercising its legislative powers effectively and completely. The legislature must retain
in its own hands the essential legislative functions which consist in declaring the legislative policy
and laying down the standard which is to be enacted into a rule of law, and what can be delegated
in the task of subordinate legislation which by its very nature is ancillary to the statute which
delegates the power to make it. Provided the legislative policy is enunciated with sufficient
clearness or a standard laid down the courts cannot and should not interfere with the discretion that
undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a
particular case. In the case of Sikkim v. Surendra Sharma it was held that ‘All Laws in force’ in sub
clause (k) of Art. 371 F includes subordinate legislation.

Criticisms of Delegated legislation

Delegated legislation is criticized for its various main defects which are as follows:-

1. It has been suggested that by allowing delegated legislation it has allowed to make and
amend laws.

2. It lacks democracy as too much delegated legislation is made by unelected people.

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3. Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.

Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of
Parliament.

4. Delegated legislation is the lack of publicity surrounding it. When law is made by statutory
instrument the public are not normally notified of it whereas with Acts of Parliament, on the
other hand, they are widely publicized. One reason for the lack of publicity surrounding
delegated legislation is because of the volume of delegated legislation made and this result
in the public not being informed of the changes to law. There has also been concern
expressed that too much law is made through delegated legislation.

Reasons for Growth of Delegated Legislation

1. Bulk of law comes from the administrators. Also Legislation is occupied with important
policy matters and rarely finds time to discuss matters of details.

2. Filling in Details of legislation- The executive in consultation with the experts or with its
own experience of local conditions can better improvise. Also legislation has become
highly technical because of the complexities of a modern govt.

3. Need for flexibility:- Ordinary legislative process suffers from the limitation of lack of
experiment. A law can be repeated by parliament itself, if it required adjustment
administrative rule making is the only answer between two sessions.

4. Meeting Emergency Situations

5. When Govt. action required discretion – rule making power of administrative agencies is
needed when the government needs to have discretion to carry out the policy objectives.

6. Direct participation of those who are governed is mere possible in delegated legislation.

Control Mechanism

1. Legislative Control on delegated legislation While in the context of increasing complexity

of law-making, subordinate legislation has become an important constituent element of
legislation, it is equally important to see how this process of legislation by the executive
under delegated powers, can be reconciled with .the democratic principles or parliamentary
control. Legislation is an inherent and inalienable right of Parliament and it has to be seen
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that this power is not usurped nor transgressed under the guise of what is called subordinate
legislation. It can control the following:

Normal Delegation: - a) Positive: - where the limits of delegation are clearly defined in the
enabling Act b) Negative: - does not include power to do certain thing (these not allowed)

Exceptional Delegation: - a) Power to legislate on matters of principle (policy) b) Power is amend

Act of parliament (In re Delhi laws Acts)

Judicial control can 1) Doctrine of ultra virus and 2) Use of prerogative writs. iii Procedural
Control Over Delegated Legislation (A Prior consultation of interests likely to be affected by
proposed delegated Legislation:- From the citizen's post of view the most beneficial safeguard
against the dangers of the misuse of delegated Legislation is the development of a procedure to be
followed by the delegates while formulating rules and regulations. In England as in America the
Legislature while delegating powers abstains from laying down elaborate procedure to be followed
by the delegates. But certain acts do however provide for the consultation of interested bodies and
sometimes of certain Advisory Committees which must be consulted before the formulation and
application of rules and regulations. This method has largely been developed by the administration
independent of statute or requirements. The object is to ensure the participation of affected interests
so as to avoid various possible hardships. The method of consultation has the dual merits of
providing as opportunity to the affected interests to present their own case and to enable the
administration to have a first-hand idea of the problems and conditions of the field in which
delegated legislation is being contemplated. Prior publicity of proposed rules and regulations: -
Another method is antecedent publicity of statutory rules to inform those likely to be affected by
the proposed rules and regulations so as to enable them to make representation for consideration of
the rule-making authority. The rules of Publication Act, 1893, sec 1 Provided for the use of this
method. The Act provided that notice of proposed 'statutory rules' is given and the representations
of suggestions by interested bodies be considered and acted upon if proper. But the Statutory
Instruments Act, 1946 omitted this practice in spite of the omission, the Committee on Ministers
Powers 1932, emphasized the advantages of such a practice. Publication of Delegated Legislation: -
Adequate publicity of delegated legislation is absolutely necessary to ensure that law may be
ascertained with reasonable certainty by the affected persons. Further the rules and regulations
should not come as a surprise and should not consequently bring hardships which would naturally
result from such practice. If the law is not known a person cannot regulate his affairs to avoid a
conflict with them and to avoid losses. The importance of these laws is realized in all countries and
legislative enactments provide for adequate publicity. iv Judicial control over delegated legislature
is exercised at the following two levels:-
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1. Delegation may be challenged as unconstitutional; or

2. That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being unconstitutional, excessive or
arbitrary. The scope of permissible delegation is fairly wide. Within the wide limits, delegation is
sustained it does not otherwise; infringe the provisions of the Constitution. The limitations imposed
by the application of the rule of ultra virus are quite clear. If the Act of the Legislature under which
power is delegated, is ultra virus, the power of the legislature in the delegation can never be good.
No delegated legislation can be inconsistent with the provisions of the Fundamental Rights. If the
Act violates any Fundamental Rights the rules, regulations and bye-laws framed there under cannot
be better. Where the Act is good, still the rules and regulations may contravene any Fundamental
Right and have to be struck down. Besides the constitutional attack, the delegated legislation may
also be challenged as being ultra virus the powers of the administrative body framing the rules and
regulations. The validity of the rules may be assailed as the stage in two ways: —

(i) That they run counter to the provisions of the Act;

(ii) That they have been made in excess of the authority delegated by the Legislature.

The method under these sub-heads for the application of the rule of ultra virus is described as the
method of substantive ultra virus. Here the substance of rules and regulations is gone into and not
the procedural requirements of the rule marking that may be prescribed in the statute. The latter is
looked into under the procedural ultra virus rule. When the Court applies the method of substantive
ultra virus rule, it examines the contents of the rules and regulations without probing into the policy
and wisdom of the subject matter. It merely sees if the rules and regulations in their pith and
substance are within the import of the language and policy of the statute. The rules obviously
cannot go against the intent of statute and cannot be inconsistent with the provisions of the Act.
They are framed for giving effect to the provisions of this Act and not for nullifying their effect and
they should not be in excess of the authority delegated to the rule making body. Delegated
legislation should not be characterized with an excessive exercise of discretion by the authority.
The rules cannot be attacked to the general plea of unreasonableness like the bye-laws framed by a
local body. Reasonableness of the rules can be examined only when it is necessary to do so for
purpose of Articles 14 and 19 of the Constitution. Delegated legislation that it was an expression
which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a shield for
Executors and a provocation to the Constitutional Jurist.- Justice P.B Mukherjee

Delegation of powers means the powers passed on by the higher authority to the lower authority to
make laws. Delegated legislation means the powers given by the legislature to the executive or
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administration to enact certain laws. Under Delegated Legislation there are mainly three kinds of
control mechanism:

1. Parliamentary Control;

2. Judicial Control;

3. Executive Control

Parliamentary Control Over Delegated Legislation:

This is up to Parliament to give anyone the powers that it possesses, just as parliament transfers
legislative powers to some other entity, e.g. executive, they must ensure that such powers are duly
exercised by the government and there is no abuse of authority that the executive is provided with.

Judicial Control Over Delegated Legislation:

The legislation that has been delegated does not fall beyond the reach of the Judicial Review and in
almost all countries the courts are allowed to decide on the validity of delegated legislation.
Despite the presence of parliamentary control, judicial control of delegated legislation is
recognized as an integral form of control mechanism. The fundamental justification for judicial
review is based on the Courts' constitutional obligation to obey the rule of law principle.

The term Ultra virus means that beyond power or authority or lack of power. An act may be said to
be Ultra Virus when it has been done by a person or a body of persons which is beyond his, its or
their power, authority or Jurisdiction.

Procedural and Executive Control:

There is no particular procedure for it until the legislature makes it mandatory for the executive to
follow certain rules or procedure. To follow a particular format it may take a long time which will
definitely defeat the actual objective of the act. Hence, procedural control means that under Parent
act certain guidelines are given which need to be followed while whether it is mandatory or
directory to follow it or not.

It includes three components:

1. Pre-publication and consultation with an expert authority,

2. Publication of delegated legislation.

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3. Laying of rules.

Following are the grounds on which judiciary can control/ review the delegated legislation which is
as follows:

A. When the Parent Act is ultra vires the Constitution:

This is a situation where it is observed that if the Parent Act violates the provisions of the
Constitution, it is void and unconstitutional.

The delegation made under such Act is also void, in the case of Chintaman Rao vs. State of M.P,
AIR 1951 SC 118, the District Collector under delegated authority passes an order for prohibiting
Beedi manufacturing, where it was held that the order passed is ultra vires because it violates the
fundamental right guaranteed under Article 19(1)(g) of Indian Constitution which talks about
freedom of trade and profession which has been guaranteed to all citizens of India.

In certain cases it can be observed that certain provisions of the Act may be unconstitutional on the
ground of being excessively delegated which doesn’t mean that the whole act is unconstitutional.

B. Delegated Legislation not authorised by the enabling act: In most countries where there is
excess of authorities it invalidated the subordinate legislation. In the case of R. v. Minister of
Health, Ex Parte Davi, (1929) 1 K.B. 618. Lord Hewart, C.J, granted the prohibition to restrain the
power of Minister if the scheme made by the Minister is ultra vires of the enabling act which was
the Housing Act, 1925. In many cases the court has made an effective application of its mind to
seek that there is proper delegation of power and the power does not goes beyond the scope of
enabling authority by the delegated Act by defining the limits of the law- making power.

Delegated Legislation is Ultra Vires the Constitution: In certain situations, the Parent Act holds
good and is within the limits of Constitution. However, the delegated legislation made under the
Parent Act may be ultra vires the Constitution.

In Dwaraka Prasad v. State of U.P, Clause 3(2) (b) of the U.P. Coal Control Order (issued by
government under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946) was
declared ultra vires the Constitution as it was violative of Art. 19(1)(g) though the Parent Act was
intra vires the Constitution. As per Clause 3(2) (b) laid down that the State Coal Controller can
exempt any person from the license requirement for Coal business if he deems fit, were the
Supreme Court held that this clause is invalid as it give arbitrary and unguided powers to the
executive without any guidelines in the matter of exempting from license, which violates Art.
19(1)(g).

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In the case of Air India v. Nargesh Meerza, The regulation may be Air India providing for
termination of service of an air hostess on her first pregnancy, was held violative of Article 14 of
Constitution. In another case of Central Inland Water Transport Corporation Ltd. v. Brajonath, AIR
1986 SC 1571 the Supreme Court declared that Rule 9 (1) of Central Inland Water Transport
Corporation Lt., Services and Discipline and Applied Rules, 1979 was unconstitutional and being
violative of Article 14, 39 and 41. The Court held that such rules affected Article 14 , therefore, the
impugned rules were struck down as it violated Article 14.

C. Delegated Legislation is Ultra vires the Parent Act:

The validity of delegated legislation can be questioned on the ground that it is ultra vires of the
Parent Act. It was observed in the case of Ram Prasad v. State of U.P, ,the Uttar Pradesh Panchayat
Raj Rule 87 framed under the Parent Act (U.P Panchayat Act, 1947) was held to be ultra vires of
the Parent Act.

In the case of Additional District Magistrate (Rev.) v. Sri Ram, the Supreme Court held that the
conferment of rulemaking power by an Act does not enable the rule- making authority to make a
rule which travels beyond the scope of enabling Act. In this case Delhi Land Revenue Act and
Delhi Reforms Act did not empower rule making authority to classify land or to exclude any area
from preparation of record of right and annual register. The Court held that the rules are ultra-virus
the parent/ enabling act.

D. Delegated Legislation Ultra Vires any General Law/ Rule of Law: The validity of the
Delegated Legislation can be challenged on the ground that it is ultra vires the general law. It takes
place, when the delegated makes a law in force unlawful and unlawful act lawful.

In A.V. Nachane v. Union of India, AIR 1982 SC 1126 in this case the rules framed by the Union
Government under delegated authority by L.I.C. with regard to bonus to Class-III and Class- IV
employees was held ultra vires since it supersedes the terms of the Bonus Settlement 1974.

E. Unreasonableness:

Generally, a statute cannot be challenged on the ground of unreasonableness. The leading case on
unreasonableness is Kruse v. Johnson, (1898) 2 QB 91, in this case the Parent Act conferred power
on the County Council of Kent to make bye- laws. A bye- law was made 1.prohibiting any person
from playing music or singing in any public place or highway within fifty years of any dwelling
house.2. As it was reasonable, the same was therefore held ultra vires.

F. Mala fide (Bad Faith):

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In simple words, the meaning of Mala fide is bad faith or ulterior motive. In A.K. Ray v. India,
AIR 1982 SC 710, the Supreme Court rejected the argument that the government’s failure to bring
into force certain provisions of the 44th Amendment of the Constitution was mala fides. It is
extremely difficult to prove mala fide before the Court.

Hence, the malafide for challenging a delegated legislation is resorted to in rate cases where strong
proof of bad faith is available. In UK and in the USA, the rule to exclude enquiry into good faith of
a legislature is applied to all subordinate legislative bodies as well.

G. Excessive Delegation:

In India, only in few cases, delegation of law making power is struck down by the Courts on the
ground of excessive delegation.

H. Sub- delegation:

A general and a basic rule from the law of agency is that a delegate cannot re- delegate its
authority, but in certain cases it is not applied to the countries who have written constitution. The
principle of sub delegation is subject to criticism and not accepted, unless there is a provision
express or implied to that effect. Hence, the validity of an act under sub-delegation can be
questioned ultra vires.

I. Non-compliance of Court’s order:

If it has been observed that the government tries to escape and avid the direction given by the
Supreme Court, then the Court has the power to struck down that particular act.

J. Non-application of Mind:

Delegated legislation can also be struck down by the judiciary if it is observed that the delegatee
has not made an application of their mind in delegating the powers to the relevant facts and
situations while taking the decisions.

Sub-Delegation

The expression 'subordinate legislation' means the act of making statutory instruments by a body
subordinate to the Legislature and in exercise of the power, within specific limits, conferred by the
Legislature. The term also connotes and covers the statutory instruments themselves. Legislation is
either supreme or subordinate. The former is that which proceeds from the supreme or sovereign
power in the State, and which is therefore incapable of being repealed, annulled or controlled by
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any other legislative authority. Subordinate legislation is that which proceeds from any authority
other than the sovereign power, and is, therefore, dependent for its continued existence and validity
on some superior or supreme authority. The idea is to supplement Acts of Supreme Legislative
Body by prescribing detailed rules required for their operation. Principle Underlying Sub-
Delegation The basic principle in this respect is that the sub-delegate should not be given
unanalyzed and unguided legislative power. Like delegation, sub-delegation is also subject to the
doctrine of excessive delegation. Where a statute itself authorizes an administrative authority to
sub-delegate its powers, no difficulty arises as to its validity since such sub delegation is within the
terms of the statute itself. Sub-Delegation of legislative powers when a statute confers some
legislative powers on an executive authority and the further delegates those powers to another
subordinate authority of agency; it is called 'sub delegation.' Thus, a chain of delegation gets
created in which the origin of the power flows through the Parent Act. Sub-delegation is the further
delegation of power by a delegate to another person or agency. The basic principle in this process
is summarized by the maxim 'Delegatus Non Potest Delegare, Such sub-delegation can’t be made
without the duly authorization by the parent statute under which the delegation has been taken
place. In the recent times, administration, administrative functions and administrative authorities
have come a long way. There has been severe growth in the working of administrative authorities,
resulting in excessive work load lying upon themselves and gives rise to pendency of the work on
the various organs of the government. This problem of high pendency and excessive workload of
the work came up with the solution of ‘delegated legislation’.

Delegated legislation means the law that is made by the executive body under the
delegated/subordinated powers of the legislation body. It is generally in the form of rules,
regulations, bye laws, orders etc. it is also known as subordinate legislation. It has been widely said
that delegated legislation are used to make in addition of the existing legislations, it should not
abolish or contravene the existing law and order, which basically means that delegated legislation
should be in conscience with the pre-existing legislations. Pressure upon Parliament, technicality
and confidentiality of the subjects, speed of working etc. are the essential elements responsible for
the growth of delegated legislation. But the concept of delegated legislations is indispensably
connected to the legal maxim ‘Delegatus Non-Potest Delegare’, which means that the powers that
have been delegated once can not be delegated further.

To simplify the elongated version, the term sub delegated legislation means delegating the
delegated powers further or we can say when a statute confers legislative powers to an
administrative authority and they further delegate to some other authority or agency then this
process is known as sub delegation of legislative powers. But this maxim is not a rule of law, it is
just a constructive rule for the statutes. But talking in the general sense, in the specified cases, sub
delegation is permitted, if it is expressly stated under statutes or if it can be inferred from the
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statutes or circumstances. The one who delegates the power is parent act or authority and to whom
the power is delegated is known as children act or authority. If the parent authority further
delegates its legislative powers but keeps a check over the substantial nature of functions of
children authority, then it can not be said as delegated or sub-delegated legislation.

The need of sub delegation is sought to be supported on the basis of the following factors:-

1. Power of delegation necessarily carries with it the power of further delegation and hence, the
delegate has power to further delegate.

2. Sub delegation is ancillary to delegated legislation and objection to such process is likely to
subvert the authority which the legislature delegates to the executive.

Illustrations of sub delegation:-

1. Keeping all the technicalities of the administrative law aside, sub delegation of power of
authority is a term that we observe in our day to day life daily. For a layman, sub delegation of
power came in existence as soon as he/she asked their younger sibling to do the work that has been
given to them by their parents. This example was quite related to the daily lives, so that it gives a
pristine understanding of the said term.

2. Now the other illustration can be, an auditor is appointed by the company to audit the accounts
of the company, but due to his personal reasons, he appointed another person who is a intern under
him, for the work to be done, this is also known as sub delegation.

But due to the existence of the maxim “Delegatus Non-Potest Delegare” the second illustration can
not be true as this maxim stops the sub delegation of authority and powers, unless said by statutes.

There are three case laws that majorly talk about the concerned topic of sub delegation.

The first case is A.K. Roy and Anr. vs. State Of Punjab and Ors1. this was the first case in India
that established the principle that delegated authority or powers can not be further delegated. In this
case the validity of sub-delegation of power under the Prevention of Food Adulteration Act, 1954.
So it was observed that section 20 of the Prevention of Food Adulteration Act, 1954 does not
envisage further delegation of powers by person authorized by Central or State Government. It has
been held that in the said case the prosecution launched by Food Inspector under purported
delegation of authority was illegal.

The second case is of Ultra Tech Cement Limited vs. The Union Of India & Ors.2, in this case it
has been said that sub delegation means the delegation of the same power that has been originally
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delegated by the legislative organ of the government. But the existing principle is that the powers
that have been delegated should be exercised by the person to whom it is delegated and none else,
but there exist a condition that if the parent act or statute governing the said delegated power says
for sub delegation then it can be further delegated. This reasoning gave birth to the maxim
“delegatus non-potest delegare”, but that too with the same condition of express or implied powers
given by statutes or law about sub delegation.

The third case is Allingham vs. Minister of Agriculture3, in this case a committee was authorized
by the Minister of agriculture to give such directions with respect to the cultivation, management or
use of land for agricultural purposes as the committee thinks necessary. This is the delegated power
of Minister to the committee, but the said committee further delegated that power to its subordinate
officer, who issued the notification of order complying with the powers given by committee. But
the order given by officer was challenged in court. Then it was held that committee was not in the
position to delegate the powers, hence quashing the order by the officer and the delegated powers
on which the officer complied As we have seen sub delegation and delegation of authority are vast
topics and require a lot of significant knowledge.

Orders In Council

The Queen and the Privy Council have the authority to make orders in the council. The Privy
Council is made up of the prime minister, and other leading members of the government. This type
of delegated legislation effectively allows the government to make legislation without going
through parliament. Its main use today, is to give legal effect to European directives. However the
Privy Council has power to make law in emergency situations under the emergency powers act
1920 and the civil contingencies act 2004, Orders in council will be used to make other types of
law. A good example is in 2004 an order in council was used to change the misuse of the drugs act
1971 to make cannabis a class B drug.

Statutory Instruments

Statutory Instruments refers to the rules and regulations made by government ministers. They are
given authority to make regulations for areas under their particular responsibility. A good example
of what this means is that the Lord Chancellor has power regarding the legal aid schemes, while the
minister for transport is able to deal with necessary road traffic regulations. The use of statutory
instruments is a major method of law-making as there are about 3,000 statutory instruments
brought into force each year.

There are many acts which give a minister of state, power to make delegated legislation. Some
examples which I want to mention are the constitutional act 2005, in which section 65 gives the
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Lord Chancellor the power to issue guidance on the procedure for the judicial appointments
commission which recommends who should be appointed as judge. Also within the serious act
organised crime and police act 2005 section 27 gives the secretary of state the power to make
regulations requiring equipment used by the serious crime agency to satisfy certain levels of design
and performance. These examples which I have used show that very different powers can be given
to ministers. The legislative and regulatory reform act 2006 gives ministers the power to change
acts of parliament even though the original act did not give them power to do this.

By-laws

By-laws can be made by the local authorities to cover matters within their own area for example
west Yorkshire county council can pass laws affecting the whole county but a district or a town
council can only make bylaws for its district or town. Local bylaws can involve traffic control,
such as parking restrictions. By-laws can also be made by public corporations and certain
companies for matters within their jurisdiction which involve the public. This means that bodies
such as the British airports authority and the railways can enforce rules about public behaviour on
their premises. An example of this can be the smoking ban on the London underground system.

The reason why delegated legislation is necessary is entirely because the parliament does not have
time to consider and debate every small detail of complex regulations. Also the parliament may not
have the necessary technical expertise or knowledge required, for example health and safety
regulations in different industries need expert knowledge on the other hand local parking
regulations need local knowledge. Modern society has become very complicated and technical so
that it is impossible for members of parliament to have all the knowledge which is required to draw
up laws on controlling technology or ensuring environment safety. It is better for the parliament to
debate the main principles thoroughly but leave the detail to be filled in by those who have expert
knowledge of it.

Ministers can have the benefit of further consultation before regulations are drawn up. Consultation
is particularly important for rules on technical matters, where it is necessary to make sure that the
regulations are technically accurate and workable. Some acts giving the power to make delegated
legislation set out that there must be consultation before the regulations are created. Another
advantage that delegated legislation has is that the process of passing an act of parliament can take
a long time even in an emergency as for delegated legislation can be passed on very quickly and it
can be amended and revoked easily when necessary so the law can be kept up-to date and ministers
can respond to new or unforeseen situations by amending statutory instrument.

Delegated legislation can be made by non-elected bodies and since there are so many people with
the power to make delegated legislation the parliament and judiciary have control. Parliament
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initially has the control with enabling an act which sets the boundaries, within which delegated
legislation is to be made. Furthermore a delegated power scrutiny committee was established in
1993 in the House of Lords to consider whether the provisions of any bills delegated legislative
power inappropriately. It reports its findings to the House of Lords before the committee stage of
the bill but has no power to amend bills. The main problem here is that there is no general
provision that the regulations made under the enabling act of have to be laid before parliament for
the MP’s to consider them. A small number of statutory instruments will be subject to an
affirmative resolution this means that the statutory instrument will not become law unless
specifically approved by parliament. The need for an affirmative resolution has to be included
before enabling an act. Most other statutory instruments will be subject to negative resolution
which means that the relevant statutory instrument will be law unless rejected by the parliament
within 40days. Individual ministers can also be questioned about MP’s in parliament on the work
of their departments and this can include questions about proposed regulations.

A more effective check is the joint select committee on statutory instruments called the scrutiny
committee. This committee reviews all statutory instruments and where necessary will draw the
attention of both house of parliament to points that need further consideration. However the review
is a technical one and not based on policy. The main grounds for referring a statutory instrument
back to the house of parliaments are that it imposes a tax or charge, (this is because only an elected
body has such rights) it is unclear or defective in some way, it appears to have gone beyond the
powers given under the enabling legislation or it make some unusual or unexpected use of those
powers, and if it appears to have retrospective effect which was not provided for by the enabling
act. The scrutiny committee can only report back its findings it has no power to alter any statutory
instruments

Delegated legislation can be controlled and challenged in the courts on the ground that it is ultra
vires basically what this means is that if it goes beyond the powers of which the parliament has
granted in the enabling act . Any delegated legislation which is rule to be ultra vires is void and not
effective this was shown in the case of R v Home Secretary ex parte fire brigades union (1995)
where changes made by the home secretary to the criminal injuries compensation scheme were
held to have gone beyond the power given to him in the criminal act justice act (1988). Delegated
legislation can be illustrated strict land v Hayes borough council 1896 where a by law prohibiting
the signing or reciting of any obscene song or ballad and the use of obscene language was held to
be unreasonable and so ultra vires because it was too widely drawn in that it covered acts done in
private as well as those in public, also the other case where delegated legislation has taken place
are the cases of Aylesbury mushroom case 1972.

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The criticism of use of delegated legislation is that it takes law making away from democratically
elected House of Commons and allows non-elected people to make the law. This is acceptable
provided there is sufficient control but as seen parliaments control is limited. This criticism cannot
be made of bylaws made by local authorities since these are elected by local citizens. Another
problem is that of sub-delegation which basically means that the law making authority is handed
down another level. This raises questions that our law is made by civil servants and it is merely
stamped by the minister department. The other main problem with delegated legislation is that it is
difficult to discover what the present law is as large volume of delegated legislations can be made
and lack of publicity is another issue because majority of delegated legislation is made in private in
contrast of public debates of parliament. The final issue about delegated legislation and acts of
parliament is that obscure wording which can lead to difficulty in understanding the law.

Overall in my conclusion delegated legislation is made by bodies other than parliament but with the
authority of parliament and there are three main bodies of delegated legislation, which are order in
council, statutory instruments, and by-laws. The reason why delegated legislation is present is
because of the knowledge and expertise, it saves the parliament’s time and it is more flexible than
acts of parliament. The disadvantages of delegated legislation are that it is undemocratic it has the
risk of sub-delegation also it can be made in large volumes and lacks publicity. Delegated
legislation is controlled by the parliament and by the courts as the parliament have the stages of
affirmative, negative resolutions and then the scrutiny committee to deal with it however the courts
have the judicial review and the doctrine of ultra vires

Sd/-

Mr. Dhruv

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