HISTORICAL DEVELOPMENT

No doubt, the twentieth century has witnessed rapid growth of delegated legislation
in almost all legal systems of the world. But that does not mean that it is a new
phenomenon or that there was no delegation of legislative power by Legislature to
Executive in the past. Ever since statute came to be enacted by Parliament, there was
delegation of legislative function. The statute of 1337 contained a clause which made
it felony to export wool, unless it was ordained by the King and his Council. In
fifteenth and sixteenth centuries, there was frequent use of Henry VIII Clause. The
Statute of Sewers of 1531 empowered Commissioners to make, re-make, repeal and
56amend laws, to pass decrees and to levy cess. Thus, the Commissioners used to
exercise legislative, administrative, and judicial powers at a time. Mutiny Act, 1717
conferred on the Crown power to legislate for the Army without the aid of
Parliament. In nineteenth century, delegated legislation became more common and
considerably increased due to social and economic reforms. In the twentieth century,
output of delegated legislation by executive is several times more than the output of
enactments by a competent legislature.

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 a quite possible for Parliament to delegate a
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
leaves the law-making power to the administrative agencies.
5. Emergency Powers: A modem society is many times faced with occasion when
there is sudden need of legislature action. The legislature can’t meet at short
notice, thus executive need to have standby power.

Types of Delegated Legislation and Constitutionality of Delegated Legislation,

Administrative rule-making or delegated legislation in India is commonly expressed
by the term ‘statutory rules and orders’. Parliament follows no particular policy in
choosing the forms of delegated legislation, and there is a wide range of varieties
and nomenclature. The Delegated legislation can be classified under various classes
depending on the purpose to be achieved:
 1. Title based classification: An Act may empower an authority to make
regulations, rules or bye-laws, to make orders, or to give directions. There is
scarcely a limit to the varieties of legislative provisions which may exist under
different names.
2. Discretion-based classification (Conditional Legislation): Another
classification of administrative rule making may be based on discretion vested
in rule-making authority. On the basis of ‘discretion’ administrative rule
making may be classified into subordinate and contingent or conditional
legislation.
3. Purpose-based classification: Another classification of administrative rule
making would involve the consideration of delegated legislation in accordance
with the different purposes which it is made to serve. On this basis the
classification may be as: Enabling Act, Alteration Act, Taxing Act,
Supplementary Act, Classifying and Fixing Standard Acts, Penalty for Violation
Acts, etc.
4. Authority-based classification (Sub-Delegation): Another classification of
administrative rule making is based on the position of the authority making
the rules. Sometimes the rule-making authority delegates to itself or to some
other subordinate authority a further power to issue rules; such exercise of
rule-making power is known as sub-delegated legislation. Rule¬ making
authority cannot delegate its power unless the power of delegation is
contained in the enabling Act.
5. Nature-based classification (Exceptional Delegation): Classification of
administrative rule¬ making may also be based on the nature and extent of
delegation. The committee on Ministers Powers distinguished two types of
parliamentary delegation:
6. Normal Delegation:
a. Positive: Where the limits of delegation are clearly defined in the
enabling Act.
b. Negative: Where the power delegated does not include power to do
certain things.
7. Exceptional Delegation: Instances of exceptional delegation may be:
I. Power to legislate on matters of principle.
II. Power to amend Acts of Parliament.
III. Power conferring such a wide discretion that it is almost impossible to
know the limits,
IV. Power to make rules without being challenged in a court of law.
Such exceptional delegation is also known as Henry VIII clause to indicate executive
autocracy.
Types of delegation of legislative power in India There are various types of delegation
of legislative power.
1. Skeleton delegation - In this type of delegation of legislative power, the enabling
statutes set out broad principles and empowers the executive authority to make
rules for carrying out the purposes of the Act. A typical example of this kind is the
Mines and Minerals (Regulation and Development) Act, 1948.
2. Machinery type -This is the most common type of delegation of legislative power,
in which the Act is supplemented by machinery provisions, that is, the power is
conferred on the concerned department of the Government to prescribed-
I. The kind of forms
II. The method of publication
III. The manner of making returns, and
IV. Such other administrative details
In the case of this normal type of delegated legislation, the limits of the delegated
power are clearly defined in the enabling statute, and they do not include such
exceptional powers as the power to legislate on matters of principle or to impose
taxation or to amend an act of legislature. The exceptional type covers cases where-
I. the powers mentioned above are given, or
II. the power given is so vast that its limits are almost impossible of definition, or
III. while limits are imposed, the control of the courts is ousted.
Such type of delegation is commonly known as the Henry VIII Clause. An outstanding
example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the Provincial
Government was authorized to extend, with restrictions and modifications as it
thought fit any enactment in force in any part of India to the Province of Delhi. This is
the most extreme type of delegation, which was impugned in the Supreme Court in
the Delhi Laws Act case. A.I.R. 1951 S.C.332. It was held that the delegation of this
type was invalid if the administrative authorities materially interfered with the policy
of the Act, by the powers of amendment or restriction but the delegation was valid if
it did not affect any essential change in the body or the policy of the Act.
That takes us to a term "bye-law" whether it can be declared ultra vires? if so when?
Generally, under local laws and regulations the term bye-law is used such as
I. public bodies of municipal kind
II. public bodies concerned with government, or
III. corporations, or
IV. societies formed for commercial or other purposes.
The bodies are empowered under the Act to frame bye*laws and regulations for
carrying on their administration. There are five main grounds on which any bye-law
may be struck down as ultra vires. They are:
I. That is not made and published in the manner specified by the Act, which
authorises the making thereof.
II. That is repugnant of the laws of the land.
III. That is repugnant to the Act under which it is framed.
IV. That it is uncertain; and
V. That it is unreasonable.

Constitutionality of Delegated Legislation

There is a presumption in favour of constitutionality of statutes as well as
delegated legislation and it is only when there is clear violation of
Constitutional provision for of the parent statute in the case of delegated
legislation beyond reasonable doubt that the court should declare it to be
unconstitutional.
The courts may be asked to consider the question of constitutionality of
delegated legislation itself. It is quite possible that the parent Statute may
be Constitutional the enabling delegated legislation may be in conflict
with some provision of the Constitution. For example, delegated
legislation may be in conflict with fundamental right guaranteed by the
Constitution.
A few examples may be mentioned herein to illustrate the point:
i) In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh AIR, 1954 a few
provisions of UP Coal Control Order, 1953 made under Section 3(2) of
Essential Supplies Act, 1946 were declared ultra-virus as infringing Art. 19
(1)(g), a fundamental right guaranteed by the Constitution.
90
ii) In Rashid Ahmed v. Municipal Board, 1950 certain bye laws made by a
municipality were held bad under article 19 (1)(g).
iii) In Narendra Kumar v. Union of India 1960 the Supreme Court
specifically considered the point whether the question of
unconstitutionality of delegated legislation made under a valid Act, could
be raised or not. The Non- Ferrous Metal Order, 1958 was made under the
Essential Commodities Act, 1955.
In Hari Shankar Bagla v. State of Madhya Pradesh AIR, 1954 the validity of
Essential Commodities Act, had been upheld. The question in Narendra
now was whether the constitutional validity of the order made under the
Act could be canvassed under Art. 19(1)(g). The court held that though
law may not be unconstitutional, an order made there under may yet be
challenged under the constitution, because the law could not be
presumed to authorise anything unconstitutional.
Modes of control over delegated legislation: The practice of
conferring legislative powers upon administrative
authorities though beneficial and necessary is also
dangerous because of the possibility of abuse of powers and
otherattendant evils. There is consensus of opinion that
proper precautions must be taken for ensuring proper
exercise of such powers. Wider discretion is most likely to
result in arbitrariness. The exercise of delegated legislative
powers must be properly circumscribed and vigilantly
scrutinized by the Court and Legislature is not by itself
enough to ensure the advantage of the practice or to avoid
the danger of its misuse.
For the reason, there are certain other methods of control
emerging in this field. The control of delegated legislation
may be one or more of the following types: • 1) Procedural;
2) Parliamentary; and
3) Judicial
Judicial control can be divided into the following two classes:
-
i) Doctrine of ultra vires and
ii) Use of prerogative writs.

DELEGATED LEGISLATION IN ENGLAND

England Parliament is sovereign; in principle it is only the Parliament
which can enact laws. But as observed by C. K. Allen, “Nothing is
more striking in the legal and social history of 19th Century in
England then the development of subordinate legislation” so it is
observed that the subordinate government of England is becoming
more and more important than the movement set in with the
Reform bill of 1832 it has gone for already and absurdly it will go
further we are becoming a much governed Nation governed by all
manner of councils and boards and officials Central and local, high
and low exercising the powers which have been committed to them
by modern statutes.
The Reasons for growth of delegated legislation in other countries
were equally responsible for the development of delegated
legislation in England. Parliament had no time to deal with the
various matters in detail of complexity technicality, emergency and
expediency compelled Parliament to delegate its legislative work to
the government. Traditionally, administrative legislation was looked
upon as it is but gradually it came to be regarded as justifiable in
principle it was realise that legislation and administration one not
two fundamentally different forms of power.
Test formulated to distinguish legislative and administrative
functions proved insufficient and inappropriate. But at the same
time administrative law had not been accepted as developed and
recognised branch of law. It was during the two world wars that
there was a tremendous increase in delegated legislation to stop
massive inroads were made into comparatively personal matters of
citizens example housing, education, employment, pension, health,
planning, production, preservation and distribution of essential
commodities social security etc. In the 18th century Parliament was
obliged to delegate extensive law-making power in favour of the
government. A hue and cry were raised against the growth of
delegated legislation.
Then the matter was referred refer to the Committee on Ministers
Power, known as Donoughmore Committee in 1929. The committee
submitted its report in 1932 it was observed that the Parliament
itself has fully realised how extensive the practice of delegated
legislation has become or the extent to which it has surrendered its
own functions in the in the process or how easily the practice might
be abused but the committee rightly stated that the system of
delegated legislation is both legitimate by permissible and
Constitutionally desirable for certain purposes within certain limits
and under certain safeguards.

DELEGATED LEGISLATION IN THE USA

In theory under the US Constitution, delegated legislation is not
accepted because of two doctrines, viz., Separation of Powers and
Delegatus non protest delegare
1. Separation of Powers
This Doctrine is recognised by the U.S Constitution and by Article 1
legislative powers is expressly conferred on the Congress. Article II
states that the executive power shall be wasted in the President and
under Article III the Judiciary has power to interpret the Constitution
and declare any statute unconstitutional if it does not confirm to the
provisions of the constitution.
In the leading case of Field v. Clark 1892 the US Supreme Court
observed that Congress cannot delegate legislative powers to the
President is a principle universally recognised as vital to the integrity
and maintenance of the system of government ordained by the
constitution.

2. Delegatus non protest delegare (a delegate cannot

further delegate)
According to this Doctrine, a delegate cannot further delegate his
power. As the Congress gets power from the people and is a
delegate of the people in that sense it cannot for the delegate its
legislative powers to the executive or to any other agency. A power
conferred upon and agent because of his fitness and the confidence
reposed in him cannot be delegated by him to another is a general
and admitted rule. Legislatures stand in this relation to the people
whom they represent. Hence it is a cardinal principle of
representative government that the legislature cannot delegate the
power to make laws to any other body or authority.
In Practice, though in theory it was not possible for the Congress to
delegate its legislative powers to the executive, strictly adherence
thereto was not practicable. Governmental functions had increased
and it was impossible for the Congress to enact all the statutes with
all particular. The Supreme Court could not shut its eyes to this
reality and try to create a balance between the two conflicting
forces: (I) Doctrine of separation of powers barring delegation and
(II) Inevitability of delegation due to the exigencies of the Modern
Government.
In Panama Refining Company vs Ryan 79 L Ed. 446: 293 US 338
(1934 ),popularly known as the hot oil case under Section 9(c) of the
National Industrial Recovery Act 1933 ( NIRA) the President was
authorised by the Congress to prohibit transportation of oil in
interstate commerce in excess of the quota fixed by the state
concerned. The policy of the Act was to recover encourage National
industrial recovery and to foster fair competition. The Supreme
Court by the majority held that the delegation was invalid. According
to the court the Congress had not declared any legislative policy or
standard.

In Schechter Poultry Corpn. V. United States 1935 (Sick Chicken

Case) the Supreme Court unanimously struck down Section (3) of
NIA Act, 1933 which authorised the President to approve codes of
fair competition and violation thereof who was made punishable.
The court held that the discretion of the president was virtually
unfettered. And this was delegation running riot.

After the two cases mentioned above the Supreme Court took a
liberal view in many cases upheld delegation of legislative power.
Thus, in National Broadcasting Company v. UnitedStates, 1943 vast
powers were conferred upon the Federal Communication Committee
(FCC) to licence broadcasting stations under the Communications
Act, 1934 the criterion was “Public Interest, Convenience or
Necessity” though it was vague and ambiguous, the supreme court
held it to be a valid standard.

Similarly in Yakus v. United States,1944 under the Emergency Price

Control Act, 1942 the price administrator was given the power to fix
such maximum price which is “in his judgement will be generally fair
and equitable and will effectuate the purpose of the Act”
administrator was required so far as practicable to give due
consideration to the prices prevailing between 1st October and 15th
October 1941 but was allowed to consider a later date is necessary
data were not available and yet the supreme court sustained the
delegation, holding that the standards were adequate and as righty
observed by the majority judgement of sick chickens case was
overruled.

The U.S. sentencing commission under the Sentencing

Reforms Act 1984: The guidelines in Mistretta v. United States,
1988 (Mistretta), sentencing guidelines were promulgated by
provided range to determine sentences for categories of offences
and offenders according to various factors specified by the
commission. Mistretta who was indicated for sale of cocaine,
challenged the guidelines contending that Congress delegated
excessive authority to the commission to structure the guidelines.
The Supreme Court concluded that the contention of the petitioner
that the commission had significant description in formulating
guidelines could not be disputed. It has also power to determine
which crimes should be punished leniently or severely. But that did
not mean that there was a no policy. Congress well conferring power
on the commission neither delegated legislative powers to the
executive nor upset the constitutionally mandated balance of
powers among the co-ordinate branches.

In Whitemen vs American Trucking Association, 2001 the legislature

delegated legislative powers to the Environmental Protection Agency
(EPA) to promulgate “air quality criteria” the relevant act or also
authorised EPA to review such standard and make such revisions as
may be appropriate. The provision was challenged on the ground of
excessive delegation of Legislative powers to EPA without providing
“intelligible principle” the court of appeal upheld the contention. The
Supreme Court however held the delegation valid observing that a
certain degree of discretion to the agency could be allowed referring
to Mistretta, the court stated that to require the EPL to set quality
standards at the level that is ‘requite’ that is not lower or higher
than is necessary to protect the public health with an adequate
margin of safety, fits comfortably within the scope of discretion
permitted by a precedent.
From the above decisions it clearly emerges that the traditional
theory has been given up and the Supreme Court has also adopted a
liberal approach. Thus, pragmatic considerations have prevailed
over theoretical objections.
DELEGATED LEGISLATION IN INDIA. The discussion can be
divided into two stages:
1.Pre-Constitution period. 2.Post-Constitution period.

Pre-Constitution Period
R v. Burah,1878 is considered to be the leading authority on the
subject the area of Garro Hills was removed from the jurisdiction of
civil and criminal courts and by Section 9 the lieutenant-governor
was empowered to extend civil or criminal all or any of the
provisions of the Act applicable to Kashi Janata and Naga Hills in the
Garros Hills and to fix the date of such application. By notification
dated 14th October 1871, the Lieutenant Governor extended all the
provisions of the Act to the district of Kashi, Jaintia and Naga hills.
The applicant who were convicted of Murder and sentenced to death
challenged the notification.
The High court of Calcutta by the majority upheld the contentions of
the appellant and held that Section 9 of the Act was ultra-virus the
powers of the Indian legislature. According to the court the Indian
legislature was a delicate of Imperial Parliament and therefore
further delegation that is (sub-delegation) was not permissible. On
the appeal Privy Council, it was held that the Indian legislature was
not an agent or delegate of the Imperial Parliament it had plenary
powers of legislation as those of the Imperial Parliament itself. It
agreed that the Governor General in Council could not, by
legislation, create a new legislative power in India not created or
authorised by the council’s Act. But in fact it was a not done it was
only a case of conditional legislation, as the Governor was not
authorised to pass any new law but merely to extend the provisions
of the Act enacted by the competent Legislature upon fulfilment of
certain conditions.

In Jitendra Nath Gupta v. Province of Bihar,1949 the Bihar

maintenance of public order Act 1948 was to remain in force for one
year. However the power was conferred on the provincial
government to extend the operation of the Act for a further period of
one year by a majority, of the federal court held that the power to
extend the operation of the act beyond the period of 1 year was a
legislative act and therefore, could not be delegated. However in a
dissenting judgement, Faysal Ali upheld the provision as the
extension of the Act, for a further period of 1 year could not amount
to its re-enactment. It nearly amounted to a continuance of the Act
for which the maximum period was an contemplated by the
legislature itself. It is submitted that the minority view was correct
and subsequently in SardarInder Singh v. State of Rajasthan, 1957
the Supreme Court upheld a similar provision.
Post Constitution Period
In re Delhi Laws Act, case 1951 was the first leading case decided by
the Supreme Court on delegated legislation after the constitution
came into force. A reference was made to the Supreme Court by the
President of India under Article 143 of the Constitution. In the
circumstances enumerated therein Central Government was
authorised by Section 2 of the Part ‘C’ States ‘laws’ Act, 1952 to
extend the laws to any part ‘C’ state with such notifications and
restrictions as if thinks fit, any enactment in force in a part a state
well doing so it could repeal or amend any corresponding law “other
than a Central Act” which might be in force in part C state. The
Supreme Court was called upon to decide the legality of aforesaid
provision. All the seven judges who heard by reference gave their
separate opinions “exhibiting a cleavage of judicial opinions” on the
question of limits to which the legislature in India could be permitted
to delegate its legislative power.

The majority held the provision valid subject to two

limitations:
1.The executive cannot be authorised to repeal a law in force and
thus, the provision which empower the central government to repeal
a law already in force in the part C state was bad.
2. By exercising the power of modification, the legislative policy
should not be changed and thus, before applying any law to the part
C state the central government cannot change the legislative policy.
Importance of Delhi laws case cannot be underestimated, as on the
one hand it permitted delegation of legislative powers by the
legislature to executive while on the other hand it demarcated the
extent of such permissible delegation of powers by the Legislature.
Principle formulated in this case by the seven judges give their
separate opinions many a time a question is asked whether any
principal was formulated by the majority opinion answer is not
simple as there is difference of opinion amongst jurist on this point.
Authors Jain and Jain are right when they state that on two points
there was a similarity in the outlook evidenced in the opinions. One,
keeping the exigencies of the Modern Government in view,
Parliament and state legislature in India need to delegate legislative
power if they are to be able to cope with the multitudinous problems
facing the country for it is neither practicable nor feasible to except
that each of the legislative bodies could turn out complete and
comprehensive legislation on all subjects that need to be legislated
upon. Second, since legislatures derive their powers from the written
Constitution which creates them, they could not be allowed the
same freedom as the British Parliament in the matter of delegation
some limits should be set on their capacity to delegate. The major
difficulty was, and it was on this point that the judges differed where
to set the limit and what was the permissible counters within which
and Indian legislature could delegate its legislative powers.
In Hari Shankar bagla v. State of MP 1955, U/S 3 of the Essential
Supplies (Temporary Powers) Act 1946 the central government was
empowered to issue an order for the regulation of production
distribution of essential commodities. By Section 6, it was provided
that the order made under Section 37 have effect notwithstanding
anything inconsistent therewith contained in any enactment other
than the Act. Both the Sections were challenged on the ground of
excessive delegation of legislative power. The Supreme Court held
that the object of Section 6 was not to repeal or abrogate any
existing law, but to bypass the same where the provisions thereof
are inconsistent with the provisions of the Act. The court also held
that the legislative policy was laid down in the Act and there was no
excessive delegation. Thus, very broad delegation of legislative
power was judicially sanctioned. After the Delhi Laws Act case, in
Hamdard Dawakhana v. Union of India, 1960 Supreme Court was
probably the first case in which Central Act was held ultra-virus on
the ground of excessive delegation to stop the Drugs and Magic
Remedies Objectionable Advertisements Act, 1954 was enacted by
Parliament to control advertisement of certain drugs. Section 3 laid
down a list of diseases for which advertisement was prohibited and
authorised the central government to include any other disease in
the list. The supreme court held Section 3 as invalid as no criteria,
standards or principles had been laid down their in, and the power
delegated was an guided and uncontrolled.