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Module 2. Delegated Legislation
Introduction
The modern state performs a vast variety of functions, necessitating a large
body of laws and rules to govern these spheres. It is not practical for the
legislature to enact all such rules itself. Delegated legislation refers to the laws
made by bodies like the executive, judiciary, or statutory entities under the
powers delegated to them by the legislature. The concept occupies an
important position in administrative law.The Constitution of India grants the
power to the legislature to make laws for the country. However, due to the
multifarious activities of a welfare state, it becomes impractical for the
legislature to perform all functions.

In such cases, delegated legislation comes into play. Delegated legislation is

the process by which the executive is given the authority by the legislature to
make laws in order to implement and administer the requirements of primary
legislation.

While delegation of legislative powers is necessary, it is crucial to maintain

control over the process to prevent abuse of power.

Definition of Delegated Legislation

Delegated legislation can be defined as “that form of legislation where the

legislature, instead of making the law itself, delegates its law-making powers
to some other authority”. The laws directly made by Parliament or state
legislatures are termed as Supreme or Superior legislation, while laws made
through delegation are called Subordinate legislation. The subordinate law-
making bodies function as delegates of the legislature.

Meaning of delegated legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting

a person with the power or empowering him to act on behalf of that person who
has given him that power or to act as his agent or representative. ‘Delegated
legislation’ means exercising of legislative power by an agent who is lower in
rank to the Legislature, or who is subordinate to the Legislature. Delegated
legislation, additionally alluded to as an auxiliary legislation, is an enactment
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made by an individual or body other than Parliament. Parliament, through an
Act of Parliament, can allow someone else or some body to make enactment.
An Act of Parliament makes the system of a specific or particular law and tends
to contain an outline of the purpose for the Act. By delegating the legislation by
Parliament to the Executive or any subordinate, it empowers different people
or bodies to integrate more details to an Act of Parliament. Parliament along
these lines, through essential enactment (for example an Act of Parliament),
licenses others to make laws and guidelines through delegated legislation. The
enactment made by authorize person must be made as per the reason set down
in the Act of Parliament.

History of Delegated Legislation

In India, delegated law-making has a lengthy history that dates back to the
British colonial era. The British administration enacted several laws during this
period to control economic activity, interpersonal relationships, and political
structure among other elements of Indian society. Local officials and
bureaucrats were in charge of carrying out the rules and executing the law.
This legislation frequently gave them a lot of authority.

The Supreme Court of India evaluated the legality of a rule made under the
1940 Drugs and Cosmetics Act in the case of HAMDARD DAWAKHANA V.
UNION OF INDIA (1960)[5], which is another significant decision about
delegated legislation in India. In this decision, the court ruled that delegated
legislation had to adhere to the goals and rules of the parent law and could not
go beyond its authority. To guarantee openness and accountability in the
process, the court further emphasized the significance of giving explanations
and justifications for the exercise of delegated authority.

The Supreme Court of India has more recently taken into account many issues
using delegated legislation in the area of environmental control. For instance,
the court evaluated the legitimacy of a notice issued by the Ministry of
Environment and Forests declaring specific regions to be environmentally
sensitive in the case INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION
OF INDIA (1996)[6]. In this decision, the court emphasized the value of
scientific data and professional judgment in the delegated legislation process,
as well as the necessity of public input and review.

Overall, delegated legislation has been crucial to Indian governance and

regulation throughout its history. It is now a key instrument for fostering
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effective and efficient policy-making. A variety of legal and constitutional
restrictions, however, are also in place to make sure that there is proper
monitoring, accountability, and compliance with the fundamentals of
democratic government and the rule of law[7].

Scope of Delegated Legislation

1. Wide general powers: A standard argument for delegated legislation is that

it is necessary for cases where Parliament cannot attend to small matters of
detail.

2. Taxation: Even the tender subject of taxation has been invaded to a

considerable extent.

3. Power to vary Acts of Parliament: It is quite possible for Parliament to

delegate the power to amend statutes. This used to be regarded as
incongruous, and the clause by which it was done was nicknamed 'the Henry
VIII clause'.

4. Technicality: The legislators are often ignorant of legal and technical points
and leave the law-making power to the administrative agencies.

5. Emergency Powers: A modern society is many times faced with occasions

when there is a sudden need for legislative action. The legislature can't meet at
short notice, thus executive needs to have standby power.

Need for Delegated Legislation

There are several factors that make delegation of legislative power in modern
times a practical necessity:

1. Increasing Legislative Burden: With the adoption of the welfare state

model and expansion of governmental functions, the range of laws
needed has amplified manifold. The Parliament does not have the
time or resources to enact the mountain of regulations needed today.
Delegation enables sharing of the legislative load.
2. Need for Expert Knowledge: The executive has various departments
like commerce, finance, defense etc. manned by specialized
personnel. They possess expert knowledge regarding the technical
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aspects that need to be regulated under law. The legislature lacks
such expertise.
3. Flexibility and Expedition: Circumstances change frequently. The
executive can amend and issue fresh rules more quickly through
delegated authority to suit the changing needs without awaiting
Parliament nod each time.
4. Emergency Situations: Rapid action may be required at times to deal
with unforeseen contingencies and crises. Ordinances are a common
method used to empower authorities to promulgate urgent laws.
5. Secrecy Needs: Certain regulations concerning defense equipment,
installations, war strategy etc. need confidentiality which the
executive is better placed to maintain. Broadcasting details can
hamper security interests.
6. Convenience in Administration: As the executive has to implement
the laws, involving it in rule making on aspects incidental to the
legislation policy facilitates administration.

Constitutionality of delegated legislation

It basically means the limits that are permissible within a Constitution of a
country through which Legislature with all his right can delegate its power of
rule making to other agencies of administration. The aim of extending the power
of the government is to handle socio-economic problem.

Position in USA:
Delegated legislation is not allowed theoretically in the constitution of the USA
because of the two reasons. These are, “Separation of Power” and “Delegatus
non potest delegare”. There is no reference of text has been given in the
Constitution of the USA which shows that it delegates its power from Legislature
to the Executive. Congress was itself a delegatee then how can it delegate its
powers. The political theory that was propagated by philosophers like John Locke
and Montesquieu were imbued on the framers of the American Constitution.
John Locke has said that a legislative cannot delegate his powers of lawmaking
to any person or cannot place it anywhere. He further stated that there should
be separate Legislature and Executive because if the power of law making and
execution of that laws go in one hand it can be misused and these people use
that power to exempt them from that law and use it for their private advantage.
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So the doctrine of ‘delegatus non potest delegare’ has been given by John Locke
it means the same as what we have explained above.
Another philosopher, Montesquieu has given the concept of ‘Separation of
Powers’. According to Montesquieu, one person cannot exercise all the three
powers of the government i.e., the Judiciary, the Legislature, and the Executive.
The Legislature should make laws and should not enforce or administer it.
Similarly Executive should not interfere in the work of Judiciary and Legislature
and Judiciary should be free from Executive and Legislature. All should do their
work separately. In America, the power to make legislation has been given to
the Congress, executive powers given to the President of the USA, and the
judiciary power of the United States is vested in the hands of Supreme Court and
also it might be given to lower court from time to time on the ordain of the
Congress.

Due to the adoption of separation of power by the United States, the legislative
power can be vested only in the hand of Congress and no organs of the
government. Further, it has argued that the power to the Congress itself has
been delegated by the American Constitution so it cannot further delegate its
power. In case of Field v. Clarke,[7] it has been observed by the Supreme Court
of America that the power entrusted to one department should only be
exercised by that department without interfering in the power or area of
another person. But in some other cases of Supreme Court of America, it was
observed that in non-legislative power such as rule-making power or quasi-
legislative powers can be delegated by Legislature to the Executive. In Wagman
v. Southard,[8] Chief Justice Marshall observed that the line has been not drawn
between those subjects which were important and, therefore, regulated by the
Legislature itself and those subjects of lower interest which were given to the
Executive for filling the details in the structure of that legislation.

So to conclude about the delegated legislation in America it can be said that it

has not been accepted in principle but in practice, the Legislature has entrusted
the power of law-making to the Executive.

Position in England:
The doctrine of parliamentary sovereignty is the core element of the UK
Constitution. In England the Parliament is supreme and there is no limitation by
the Constitution on the Parliament. Also, Parliament in England has wide powers
of delegating its legislative power to the Executive or other subordinate bodies.
Committee on Ministers’ Powers also refers to as Donoughmore Committee
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released a report in which a famous lawyer of England, Sir Cecil Carr has quoted
about three parts of legislation. These are as follows:

• The first and the very smallest part is made by the Crown under her
prerogative powers.
• The second and the weightiest part is made by the King in the
Parliament and it consists of Acts of Parliament.
• The third and the bulkiest part is made by such body whom the King
entrust the power of legislation in the Parliament.
Sir Cecil Carr has also observed that the truth is that if the parliament is not
willing to delegate the law-making power, the Parliament is unable to provide
quality and kind of legislation the modern public wants.

Constitutionality of Delegated Legislation in India

Delegated legislation's position and constitutionality in India can be illustrated
through several court cases, which can be categorized into two phases:

o The period before independence (pre-independence) and

o The period after independence (also referred to as post-independence).

Pre Independence Era

Prior to India gaining independence, the Government of India Act, 1935,

governed the legal system. Under this Act, legislative powers were delegated
to the executive branch, enabling them to create laws in specific domains.

o In the case of Queen v. Burah (1878), the Privy Council authorized

conditional legislation.
o This meant that the power of the legislature was transferred to the
executive.
o In particular, the administration of civil and criminal justice in a
territory could be entrusted to officials selected by the Lieutenant-
Governor on a regular basis.

o In another case, King v. Banwari Lal Sharma, the Privy Council once
again applied legislative conditions, similar to what they did in Queen v.
Burah.
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o In this case, the validity of the Governor-General of India's
Emergency Ordinance was challenged, among other things.
o The challenge was based on the argument that the Governor-
General was trying to take power away from the Provincial
Government.
o The Governor-General was establishing special criminal courts for
specific types of offenses, but only the Provincial Government had
the authority to establish courts.
o The Privy Council considered this situation to be different from
delegated legislation.
o They explained that it represented an exceptional legislative
authority where the local administrative body determines the
application of state legislation within its locality as and when
required.

To put it simply, in Queen v. Burah, the Privy Council authorized transferring

legislative power to the executive for the administration of justice. In King v.
Banwari Lal Sharma, they upheld the Governor-General's power to establish
special courts, as it was seen as an exceptional legislative authority granted to
the local administrative body.

Post Independence Era

After India gained independence and adopted its Constitution in 1950, the
framework for delegated legislation underwent significant changes. The
Constitution of India explicitly recognized and allowed for delegated
legislation. It empowered the legislature to delegate its legislative powers to
other entities, with certain limitations and safeguards.

The constitutionality of delegated legislation in the post-independence era has

been affirmed through several landmark court cases. These cases have
established the principles and boundaries within which delegated legislation
operates.

o In the case of Raj Narain Singh v. Chairman, Patna Administration

Committee (1954), the Supreme Court of India upheld the delegation of
power from the legislative body to the executive body.
o This case specifically empowered the local government to extend
provisions of the Bengal Municipality Act.
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The Indian Constitution does not expressly prohibit the delegation of legislative
power by the legislature. However, there are two constitutional limitations on
legislative delegation, as established in the case of Re Delhi Laws Act (1951):

o The legislature cannot delegate its essential legislative functions.

o This means that the core and fundamental aspects of lawmaking
must remain with the legislature itself and cannot be transferred
to another authority.
o The power conferred on a subordinate authority or executive body
should not suffer from excessive delegation.
o This means that the delegation of power should be limited and
must be within reasonable bounds, ensuring that the delegated
authority does not exceed the scope or purpose intended by the
legislature.

In simpler terms, the Supreme Court, in the Raj Narain Singh case, allowed the
legislature to delegate power to the executive body. However, the Constitution
imposes two limitations on this delegation: the essential legislative functions
must remain with the legislature, and the delegated power should not be
excessively broad or unlimited.

Reasons for Growth of Delegated legislation

There are many reasons for rapid growth of delegated legislation in todays’
world, some of them are:

o Pressure upon time of Parliament: The expanding scope of state

activities and the Parliament's limited time pressures them to delegate
law-making power to the executive. The Parliament provides the broad
outline of legislation, leaving the details to be filled by the executive or
its subordinates, ensuring the necessary rules and regulations are
followed for a functioning law.
o Technicality in the matters: In today's complex and advanced society,
matters have become more intricate and technical. To comprehend the
intricacies of various topics, the legislature requires experts who possess
in-depth knowledge of specific matters.
o Flexibility: Delegated legislation provides flexibility and expedites the
lawmaking process by involving the executive branch, enabling swift
regulation in areas like police, banking, trade, and foreign exchange. It
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allows for addressing unforeseen contingencies and ensuring efficient
workload management, making it essential for effective governance.
o Emergency: In times of emergency or crisis, quick action is needed, and
the legislature may not possess the necessary skills to provide
immediate solutions. Delegated legislation becomes crucial in such
situations, allowing the executive to have broad powers to address
emergencies.
o Experiment: Delegated legislation allows the Executive to experiment
with new laws and assess their effectiveness. This approach enables the
utilization of experience and implementation of necessary changes
based on the application of provisions, considering the interests and
impact on people at the ground level.

Complexity of modern administration: Modern administration has taken on

additional responsibilities in areas such as employment, health, education, and
trade regulation, leading to increased complexity. This expansion of state
functions in the social and economic spheres has necessitated the creation of
new legislation and granting wide powers to various authorities.

Classification of delegated legislation

There are mainly four types of delegated legislation classification:

1. Title based classification

An act may grant the authority the ability to enact laws, orders, or bye-
laws. The variety of legislative provisions that may exist under multiple
names has basically no limitation.

Different forms of delegated legislation are:

o Central act to central government.

o Central act to state government
o Central act to statutory body.
o State act to state government
o State act to statutory bodies
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2. Discretion based classification
A discretion may be conferred on the executive to bring the act into
operation on fulfilment of certain conditions, such legislation is called
'conditional legislation'.

Conditional legislation tends to provide control (not law-making power)

and also specifies that the legislation will come into force only after
fulfilment of conditions provided by the statute.

In conditional legislation, legislature makes law that is 'full and complete'

and no legislative function is delegated to the executive. The only duty
of the executive is to apply the legislation upon fulfilling the conditions
prescribed by the statue.

In the famous case of M.P High court bar association vs. Union of India,
2004, the Madhya Pradesh reorganisation act, 2000 empowered the
state government to abolish state administrative tribunal. The validity of
provision was challenged on ground that there was excessive delegation
of power on state. Court held that, the act enacted by parliament was
full and complete and no legislative power was delegated to the
executive, they were mainly to decide the existence of the tribunal.

3. Purpose based classification

Parent act may also empower the executive to delegate its power
further to its subordinate authority, and this is known as 'sub-
delegation'. When parent statute confers legislative power to executive
and executive further delegates it to another subordinated authority,
then it is called sub delegation. The parent act is allowed to produce
descendants to a maximum of four or five degrees. 'Delegatus non
potest delegare', is a latin maxim which mean that "no delegated powers
can be further delegated".

Exception to Delegatus non potest delegare are:

o Express power of sub delegation

o Implied power of sub delegation

Where a statute has itself authorised the subordinate authority to

further delegate its power, then no question arises as to the validity of
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delegated legislation.

In the case of Central Talkies Limited vs. Dwarka Prasad, 1961, AIR 606
1961 SCR (3) 495 where the U.P control of rent and eviction act stated
that no suit shall be filed for the eviction of tenant without the
permission of District Magistrate or any other person authorised by him,
the power to further delegate wads challenged on ground of excess
delegation.

Court held that since the power to further delegate arises from the
statue itself, hence it is not excess delegation.

4. Authority based classification

Purpose based classification: This classification of delegated legislation
may be based on the nature and extent of power conferred and purpose
for which such power can be exercised. There are various powers that is
delegated such as:

� Power to bring an act into force - In the case of A.K. Roy v. Union of
India, 1982 SCC (1) 271 the Supreme Court ruled that the government
has the authority to put the Act into effect and that this power should
not be exercised excessively.

For example: the Legal Services Authority act, Section 1(3) states that "it
shall come into force on such date as central government may
prescribe".

o Power to include and exclude: this means addition or removal of

any person, commodity, item etc to the act. For example:
Minimum Wage act empowers the state government to add or
remove any employment for which minimum wage should be
fixed.
o Power to fill in details: usually legislation makes 'skeleton
legislation' which needs to be filled by the subordinate authority.

In skeleton legislation the central or state legislation prepares only

a structure of law and leaves the details to be filled by the
subordinated authority. For example, Under the Essential
commodities act, substantive law-making power is given to the
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central/state government, and in this way, they fill in the gaps by
way of delegated legislation.

o Power to Modify: sometimes the executive is given the power to

modify or change the law without changing the very nature of the
law. This has been explained further in the case of Rajnarain Singh
vs. The Chairman, Patna Administration (1954) 1954 AIR 569 , in
this case the court held that subordinate authority can make
incidental changes to the law but modification should not be
substantial in nature and if done such changes would be invalid.

A famous case involving the transfer of legislative authority was In Re The Delhi
Laws Act, 1951. The case established the rule that while the authority to
amend already-existing laws can be assigned to a subordinate authority, but
the authority to amend the fundamental structure of a law cannot. In other
words, a subordinate authority may be given the authority by the legislature to
make modifications to an existing law, but the fundamental ideas and essential
elements of the legislation must not be changed by that authority. This rule
makes sure that the fundamental components of law are protected while
allowing for required amendments to be made by executive or subordinate
authorities.

Advantages of Delegated Legislation

Some of the main advantages of Delegated Legislation are:

• Saves cost and time when dealing with emergencies.

• More flexible as compared to non-delegated legislation.
• Helps in finding the bottlenecks.
• Sets up a new base for the amendment of statutes, which is the
demand of time.
• Helps in relieving the burden on Parliament.
• The affected person’s interest is maintained.
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Disadvantages of Delegated Legislation

Some of the main disadvantages of Delegated Legislation are:

• More claims for review of legislation.

• The influence of superior courts may cause interference.
• Authorities may follow the dictatorial principle.
• Increase in corruption and misuse of powers.
• Lack of legal knowledge among common people may trigger unavoidable
situations.
• Slowly, the executive will start encroaching upon the legislature if
delegation is obscure.
• It is against the doctrine of separation of powers.
• The executive becomes more powerful.

Control of Delegated Legislation

1. Judicial control
There are basically two tests applied for deciding the validity of
delegated legislation by way of judicial control.

a. Substantive ultra vires

b. Procedural ultra vires

Meaning of Ultra Vires: ultra vires means 'beyond power or authority'.

An act is an ultra vires act if it is done by someone who is acting beyond
his/her jurisdiction.

Substantive ultra vires

When act of the legislature is in excess of power conferred on the
legislature by the constitution, then the legislature is said to be ultra
vires the constitution. Similarly, when subordinate legislation goes
beyond the authority of delegated legislation the act is ultra vires, and
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this is known as substantive ultra vires.

Under following circumstances, the delegated legislation can be

declared invalid on ground of substantive ultra vires.

c. Parent act is unconstitutional

If the parent act conferring power on the subordinate authority is
itself unconstitutional then the delegated legislation is also
unconstitutional or ultra vires.

In the case of Chintamanrao Vs. State of M.P, 1951, SCR 759 the
parent act authorised the Deputy Commissioner to prohibit
manufacturing of bidis in some areas. Court held that order
passed by deputy commissioner under the act is ultra vires and
even the parent act is ultra vires the constitution as it violates the
fundamental right to carry on any trade, business or any
occupation, under Article 19 of the constitution.

d. Delegated Legislation is ultra vires the constitution

If the statue or parent act is constitutional but the delegated
legislation is ultra vires the constitution, then the delegated
legislation will be declared invalid. Same was held in the case of
Air India vs. Nargesh Meerza, 1981, 1981 AIR 1829, 1982 SCR (1)
438. where a regulation was framed by Air India providing that
service of an air hostess will be terminated on her first pregnancy,
this was held violative of Article 14 of Constitution.

In the case of D.S Nakara vs. Union of India, 1983 SCR (2) 165 a
scheme was introduced that provided higher pension to person
retiring before a particular date, and lower pension to others
retiring after such date, this was delegated legislation was held to
be violative of Article 14 of the Constitution.

e. Delegated legislation is inconsistent was parent act

It is also important that even if the parent act and delegated
legislation both are constitutional but the delegated legislation is
inconsistent with the parent act, then such delegated legislation
will be invalid.
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In Indian Council of Legal Aid & Advice vs. Bar Council of India,
1955, 1995 AIR 691 rule was framed by bar council barring
enrolment as advocate of person who had completed 45 years of
age.

However, Parent act only enabled bar council to lay down

conditions subject to which an advocate shall have right to
practice.

Thus, the rule was held to be inconsistent with the parent act.

f. If the delegated legislation is mala fide

In the case of Indian Express Newspaper Pvt.Ltd. vs. Union of India
(1985), in this case supreme court held that 'unreasonableness' is
a ground of judicial review which is available to determine the
validity of the delegated legislation.

g. Where delegated legislation includes 'ouster clause'

The delegated legislation may contain a clause stating that its
validity shall not be questioned in any legal proceeding and tends
to keep itself away from the scope of judicial review. This is known
as 'ouster clause'.

h. Where delegated legislation is arbitrary

In India arbitrariness is not a ground for declaring a subordinate
legislation ultra vires or invalid, but it is included within Article 14
of Constitution, hence any rule that violates the constitution is
invalid.

i. Where delegate further delegates

'Delegatus non potest delegate' as mentioned above this maxim
means that no delegated power can be further delegated, until
and unless the parent act itself authorises aur permits such
further delegation.

Procedural ultra vires

When a subordinate legislation fails to comply with the procedure
prescribed by the parent act, it is knowns as procedural ultra vires. While
framing rules, parent act may require the delegated legislation to
observe a certain procedure, such as discussion with particular bodies or
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publication of draft rules, etc.

It is binding on the delegated legislation to comply with these procedural

requirements, and if such procedural requirements are not followed,
then the rule so formed will be invalidated. But these procedural
requirements are not always mandatory.

Types of procedural control:

j. Consultation
k. Publication

Consultation
One of the techniques adopted by courts to check and control exercise
of legislative power by the subordinate authority, is the process of
consultation. It act as a safeguard against possible misuse of legislative
authority.

In order to keep the legislative process open, accountable, and inclusive,

consultation is essential. By embracing many points of view, areas of
expertise, and experiences, it helps to improve the quality of delegated
legislation. Legislators can detect possible problems, unexpected
repercussions, and practical difficulties related to new legislation by
including stakeholders in the consultation process.

Publication
Publication means the action of making something generally know, or to
make something public.

The public must have access to the law and they should be given an
opportunity to know the law, hence, they must be made aware of
delegated legislation by way of publication.

In the case of Harla vs. State of Rajasthan, 1951 AIR 467, 1952 SCR 110
legislation was passed by the council and was not made to know to
general public. Hon'ble court in this case held that publication of laws is
important.
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Publication can be of two types:

l. Previous publication
m. Post publication

Previous publication
In this type of publication rules are made known to general public before
they are made final or applicable. First the draft of the proposed rule
shall be published, followed by the date on which such rule will come
into effect, further suggestions and advice for such rule will be taken
into consideration.

Previous publication gives an opportunity to affected persons to provide

suggestion in the rule made.

In Tulsipur sugar co. vs. notifies area committee,1980, it was held that
it is not mandatory for every rule or delegated legislation to opt for
previous publication, it depends upon statute to statute, few statutes
give provision for previous publication while other do not.

Post publication
"Ignorantia Juris non excusat" it means ignorance of law is not an
excuse, after the law is made available for public.

In the very famous case of State of Maharashtra vs. M.H George, 1964,
German national Mayer Hans George was found guilty of violating
Section 23A of the Foreign Exchange Regulations Act of 1947 (repealed)
by importing gold into India without the Reserve Bank of India's consent
also a notification, dated 8 November,1962 was published in the Gazette
of India, stating the same the accused was sentenced to a year in jail.
Authorities from the Customs office proved that Mr. George was
attempting to cheat the government by smuggling 34 kilogrammes of
gold.

The defendant took the defence of 'ignorance of law; on which the court
held that, as notification was published in Gazette, it will be presumed
that every individual is aware of the law day after such date on which
the law is published.
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Cases that illustrate the Judicial control over the executives

• Kruse v. Johnson:[11] The court laid down in the case that by-laws
would be unreasonable on the following ground.

• It should not be partial or unequal

• It should not be manifestly unjust
• It should not disclose bad faith
• It should not involve oppressive interference with the right of the
people that it could find no justification in the mind of the reasonable
person.

• Delhi Law Act Case:[12] In this case the power is given to the Central
Government through an act to repeal the pre-existing law held to
be ultra vires.

• Chintaman Rao’s Case:[13] Prohibition of making bidis in the

agriculture season by the Deputy Commissioner is violative of Article
19(1)(g) of the Indian Constitution.

• Chandran v. R: It was held in this case that if the power of by-laws

entrusted in the hands of the Legislature, then it must be within the
limits of the Legislature and if it exceeds the limit then this by-laws
can be struck down.

Legislative control
If Parliament delegates legislative power to the executive, it must also ensure
that those powers are properly exercised and there is no misuse of the
authority.

The objective of such control is to keep watch over the rule making authority
and provide criticism if they abuse their power.
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Forms of legislative control:
Lying on table
it informs the legislature as to what rules have been made by the subordinate
authority. It provides for an opportunity to question or challenge the rules so
made.

There are three effects of lying on table:

a. Where the parent act requires mere lying of rules, they will come into
effect as soon as they are made
b. If parent act provides for annulment by legislature, rule comes into
effect immediately, but if it is disapproved will be invalid.
c. If the act provides draft rules to be placed before legislature, rules will
come into effect only after approval.

Scrutiny committees
In India, there are two scrutiny committees:

a. Lok Sabha committee on subordinate legislation.

b. Rajya Sabha committee on subordinate legislation.

The function of committee is to examine and report the respective house, and
report the respective house, whether the power to make rules is being
properly exercised by subordinate authority.

They act as a watch dog which bark and arouse their master if there is an
invasion on the premises.
There are several mechanisms for legislative control of delegated legislation.
These include:

Enabling Act:

The primary legislation that delegates the legislative authority to

administrative agencies will usually include specific provisions that outline the
scope and limitations of the delegated power. Moreover, The provisions may
comprise requirements for consulting with stakeholders, establishing
procedures for public scrutiny and review, and imposing limitations on the
types of regulations or laws that delegated legislation can create.
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Parliamentary Scrutiny:

The primary legislative body may establish committees or other mechanisms

for reviewing and scrutinizing the regulations or laws created through
delegated legislation. These committees may include members of parliament
or experts from relevant fields. Such scrutiny aims to ensure that the delegated
legislation is consistent with the original intent of the primary legislation. Also,
it does not exceed the authority granted to the administrative agency.

Sunset Clauses:

The primary legislation may include provisions that automatically terminate or

expire delegated legislation after a certain period. Furthermore, This ensures
that delegated legislation is regularly reviewed and updated and that it does
not become outdated or irrelevant.

Delegation of Disallowance:

The primary legislative body may reserve the power to disallow or repeal
regulations or laws created through delegated legislation. Moreover, This
power allows the primary legislative body to intervene in cases where
delegated legislation is inconsistent with the original intent of the primary
legislation. Also, where it exceeds the authority granted to the administrative
agency.

Judicial Review:

The courts may also exercise control over delegated legislation through judicial
review. This allows the courts to examine the legality and constitutionality of
delegated legislation. Moreover, it permits to strike down regulations or laws
that are inconsistent with the original intent of the primary legislation or that
exceed the authority granted to the administrative agency[12]
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Procedural Control
• There is no particular procedure for it until the legislation makes it
mandatory for the executive to follow certain rules and procedures.
• It has the potential to meet the effective vigil over administrative
rulemaking. It can guarantee effective people participation for better
social communication acceptance and effectivity of the rule.
• Certain guidelines are provided under the parent act that must be
followed, whether they are mandatory or directory.
• If the executive doesn’t follow the procedure laid down by the legislative
then the rules made by the executive will become invalid.
• Pre-publication and consultation with export authority- according to
section 23 of the general clause act 1897. The rules made must be
published in draft form in the Official Gazette. The rule-making authority
should also invite objections and suggestions from the public and
consider them.
• Publication of delegated legislation- there is a well-known principle of
law “ignorantia juris non excusat”(ignorance of the law is not an excuse).
But there is another equally important principle that the public should
have access to the law of the land. Publishing the rules is crucial to
ensure that people are aware of them, and it is important to take the
necessary steps to do so.
• Laying of rules- it means to place the rules made before the parliament.
• Drafting- The drafting of delegated education by an expert draftsman,
who is at the same time in a position to advise whether the proposed
rule and regulation hour intra- virus is a valuable safeguard.
• Consultation with affected persons- the control mechanism makes the
administrative role making a democratic process and therefore increases
its acceptability and effectivity of consultation with affected interests
before delegated legislation or statutory instrument is prepared it is a
visible safeguard against possible misuse of power by the rule-making
authority
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Criticisms of Delegated Legislation
1. Delegated legislation is not often published.
2. Delegated legislation is not often expressed in precise language of the
law.
3. It contradicts the doctrines of Rule of Law and Separation of Powers.
4. Administrative powers are too extensive.
5. Administrative agencies possess too much discretion.
6. Emergency regulations often violate Human Rights.

Conclusion
Delegated or subordinate legislation means rules of law made under the skilled
person of the Act of Parliament. In spite of the fact that lawmaking is within the
capacity of the lawmaking body, it might, by a resolution, delegate its capacity
to different bodies or people. The resolution which delegates such power is
known as the Enabling Act. By Enabling Act the council sets out the wide rules
and nitty-gritty principles are instituted by the delegated authority.
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Excessive delegation

Introduction

Excessive delegation in administrative law refers to the phenomenon where

the legislative body grants broad decision-making powers to administrative
agencies without clear guidance or adequate checks and balances.

While delegation of authority is necessary for effective governance, excessive

delegation can lead to potential problems. This post explains the concept of
excessive delegation, how it occurs, its advantages and disadvantages, and the
need for striking a balance between authority and accountability in
administrative law.

Nature and Scope of Excessive Delegation

The nature and scope of excessive delegation are grounded in the understanding
that Parliament, as a legislative body, does not inherently possess absolute
legislative power; rather, it has been granted such power by the constitution.

Parliament is obligated to exercise this power itself, as mandated by

the Constitution and cannot simply delegate it to the executive branch. The
delegation of essential legislative functions to the executive is constitutionally
impermissible. Essential legislative functions include the determination of
legislative policy and the formulation of rules of conduct.

Once these primary functions are fulfilled by the legislature, it may delegate
ancillary and incidental functions to the executive.

In jurisdictions like Great Britain, concerns over excessive delegation of

parliamentary powers are primarily political in nature, while in the United States
(and in India), they are predominantly addressed through judicial review.

Regarding the operation of the doctrine of excessive delegation:

Powers and Duties of Courts: The principle of legislative power being vested in
representatives of the people underscores the rule against excessive delegation,
as it ensures that legislation is enacted not just in the name of the people but
also by their elected representatives. However, given the complex tasks of a
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modern welfare state, legislatures often lack the time and expertise to delve into
detailed matters. Delegation of law-making authority thus becomes essential for
the functioning of modern government.

Court’s View on Excessive Delegation: Challenges to the validity of enactments

based on delegated legislation present complex legal issues. Judicial opinions
vary on how to address such challenges. If the legislature establishes the
principles and guidelines underlying a statute and provides adequate direction
for their implementation, it is generally permissible for the legislature to
delegate the actual implementation to its chosen delegate.

Principles Governing Excessive Delegation

The determination of whether excessive delegation has occurred is guided by
three overarching principles:

• Essential Legislative Functions: The legislature cannot delegate its core

functions, which include enacting laws and establishing legislative
policies.
• Practical Considerations: Given the complexities of modern conditions,
it is impractical for the legislature to foresee and address every
conceivable scenario in detail. Therefore, the legislature may delegate
certain functions provided it sets clear legislative guidelines.
• Lawful Delegation: Delegation to the executive is permissible if done in
a lawful manner and such delegation cannot be deemed excessive solely
because the legislature could have provided more detailed provisions.
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Sub Delegated Legislation

INTRODUCTION
Sub delegated legislation refers to the process of further delegating the
powers that have been assigned by a statute to an administrative authority,
which subsequently transfers those powers to another agency or authority.
This is also known as sub delegation of legislative powers. If it is clearly
mentioned in statutes or may be deduced from the statutes or circumstances,
sub delegation is allowed in the designated cases. As long as the parent
authority retains control over the fundamental nature of the functions of the
children authority, it is impossible to establish that legislation has been sub-
delegated or further delegated.

MEANING OF SUB-DELEGATION
Sub-delegation, as used in administrative law, is the procedure by which an
individual or organization that has been given administrative responsibility by a
higher authority subsequently assigns some or that entire jurisdiction to
another individual or organization. According to the maxim “Deleatus non
potest delegare,” “A delegator cannot further delegate.” A delegator lacking an
enabling act in place will not be able to further delegate its authority to other
authorities, including rule-making authority. In this scenario, the initial
decision-maker, referred to as the delegating authority, transfers authority to a
third person, referred to as the sub-delegate, who subsequently uses the
transferred powers on the delegating authority’s behalf.

Nature and Scope of sub-delegation

A rule-making authority can sub-delegate its legislative power only when the
parent statute authorities sub-delegation. Subdelegation of power of delegated
legislation is justified only where the parent statute expressly or impliedly
authorizes the delegate himself to further sub-delegate that power to anyone
else. The maxim, Delegatus non-potestdelegare is a wellknown maxim which
means that in the absence of any power a delegate cannot sub-delegate its
power to another person’s. Thus when an Act prescribes a particular body to
exercise a power, it must be exercised by that body and none else unless the
Act by express words or necessary implication permits such delegation. When a
sub-delegation is made, it does not divest the authority making sub-delegation
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of his statutory authority. A sub-delegation is not permissible unless the said
power is conferred expressly or by necessary implication and in the absence of
such an express authorisation, legislative power cannot be sub-delegated. A
leading case in this aspect is Ganapati v. State of Ajmer. Here the parent act
empowered the chief commissioner to make rules for the establishment of a
proper system of conservancy and sanitation. The chief commissioner made a
rule which empowered the district magistrate to devise his own system. The
Supreme Court held that the rule made by the district magistrate was invalid
since it was a sub-delegation without an express authority. But if the parent
article authorizes to sub delegate, then it can be validated. If the parent Act
permits sub delegation to officers or authorities not bellow a particular rank,
then the power can be delegated only to those officers or authorities. Here it
may be mentioned that the authority cannot go beyond the power delegated.

OBJECTIVES OF SUB-DELEGATION
The following elements should be taken into consideration while implementing
sub-delegation or additional delegation of authority:

• Power of delegation: It is said that when an authority assigns its

jurisdiction to another person or group, it possesses an inherent right to
further delegation. As a result, the delegate has the option to sub-assign
the authority to an alternative person or group.
• Supplementary to delegated legislation: Sub-delegation is regarded as a
supplementary or supporting procedure to legislation that is delegated.
Sub-delegation enables the executive to assign particular responsibilities
or decision-making power to subordinate authorities or agencies
operating under its own administrative framework. The effective
operation of the delegated laws can be guaranteed by permitting sub-
delegation, which gives the executive the ability to assign responsibilities
to people with the necessary knowledge and authority.
• Maintaining Legislative Power: To facilitate the efficient administration
and application of laws, the legislature assigns specific authorities to the
executive branch; If sub-delegation is prohibited, it could be limited,
which would make it harder for the executive to allocate tasks and
obligations and hinder the efficient operation of the delegated statute.
Therefore, it is thought that in order to maintain the desired functioning
and authority of the assigned functions, sub-delegation must be
permitted.
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NEED FOR SUB DELEGATION
The following criteria are used to try and justify the need for subordination:

• The delegate has the authority to assign more authority since the ability
of delegation inherently includes the power of additional delegation.
• Subdivision is a process that goes hand in hand with delegated
legislation, and opposition to it could undermine the authority that the
legislature grants the executive

FORMS OF SUB DELEGATED LEGISLATION

Sub-delegation comes in three different forms. These show how the sub-
delegated laws are categorized more broadly in the Indian Legal System.

Full or partial: When all of the authority is granted to the agent or another
authority, the delegation is considered full. For example, the permission of
competent authority to change, amends, or repeals any law. A delegation is
deemed partial if the recipient needs to obtain instructions or direction from
the delegated authority regarding important matters. For instance, the
Essential Commodities Act of 1955’s Section 5.

Conditional or unconditional: Delegation is condition when the action of a

delegated authority is subject to revise and confirm by the superior authority
or it includes some conditions. When authority is delegated unconditionally, it
gains the same power as higher authority. As per the Essential Commodities
Act of 1955, Section 3, After the Central government implemented the sugar
restriction, the Textile Commissioner was given certain authority and functions
under the order. Additionally, under clause 10, the Textile Commissioner has
the authority to designate any person to act on his behalf.

Skeleton legislation: Skeletal legislation is created by superior authority who

creates the framework of a statute but does not establish any policies or
principles. Delegated authority then fills in this framework by establishing
policies or principles with the aid of guidelines, which they are not allowed to
stray from.

TO WHAT EXTENT ARE POWERS SUB-DELEGATED OR DELEGATED?

Although power is restricted rather than unrestricted, it can be delegated or
sub-delegated with prior approval from the parent authority. The concept of
excessive delegation applies to sub-delegation as well. Put simply, the
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legislature has the authority to formulate policies, as granted by the Indian
Constitution. The legislature may assign limited authority to draft modest
changes to existing policies, but it cannot give another body—a body that is
not the legislature—full authority to formulate policy. According to the theory
of excessive legislation, that would be an excessively broad delegation and so
invalid.

In Mahe Beach Trading Co. v. Union Territory of Pondicherry, 1996,[1] it was

decided that “The delegated authority must only implement stated policy;
however, if there is an excessive delegation, which the court will invalidate,
there is an abdication of legislative power by transferring the policy
formulation role to the delegate.”

ISSUES SUPPORT SUB-DELEGATION

Sub delegation brings up a number of issues. Firstly, is it essential for the

delegate to set clear guidelines for the sub-delegate to adhere to? The issue
has come up a few times in Indian court proceedings. Sub delegation is
governed by the excessive delegation theory, just like delegation.

The Supreme Court exercised its authority under clause 8 of the sugarcane
control order issued under section 3 of the essential commodities act, 1955, in
the case of Laxmi Khandsari v. State of Uttar Pradesh.[2] The central
government was given the authority to issue directives to different parties
involved in the production of khandsari sugarcane by Clause 8 of the sugar
cane order. The argument was rejected by the supreme court, which stated
that the sugarcane control order was made in accordance with section 3 of the
parent act, which clearly laid down sufficient guidelines to prevent any misuse
of the power granted to the authorities under clause 8 and that the power
should not be deemed arbitrary because the impugned notification derived its
source from that section. The notification under the control order must be
read in the context of the main act.

CONCLUSION
Under constitutional and administrative law, delegation and sub-delegation
constitute common legislation. Today, because of legal developments and
technicalities, these two pieces of legislation are crucial since they reduce the
workload and save time for higher authority or legislation. However, these
laws also have unfavorable effects since higher or delegated authority may be
abused by either party. It has frequently been observed that those with
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delegated authority revise, repeal, or change laws on their own will, or that
superior authority will occasionally abuse their assigned authority.