AN

ASSIGNMENT
ON
DELEGATED LEGISLATION’

Submitted by- SHIVENDRA S S RATHORE

Roll No 62
BA. LLb Hons. VIth Sem
Introduction
Growth of Administrative Process bulk of law comes from the administrators. All
law making which takes place outside the legislature expressed as rules,
regulations, bye laws, orders, schemes, directions or notifications etc.
Art.13 (3) Defines law and it Includes ordinance, order, byelaw, rule, regulation &
notification having the force of law.

In Sikkim v. Surendra Sharma 1- ‘All Laws in force’ is sub clause (k) of Art. 371
F includes subordinate legislation.

Salmond defines law as that which proceeds from any authority other than the
Sovereign power & is therefore, dependent for its continued existence & validity
on some superior or supreme authority. Central law to central or state or both
subject to subject matter (appropriate Govt.)

e.g: - Industrial disputer Act, 1947 center power of rule making on the “appropriate
Govt.”

Difference between rules, regulation & byelaws: Generally, the statutes provide for
power to make rules where the general policy has been specified in the statute but
the details have been left to be specified by the rules. Usually, technical or after
matters, which do not affect the policy of the legislation, are included in
regulations. Bye laws are usually matter or local importance, and the power to
make byelaws is generally given to the local or self governing authority.

Orders: - U/s 3 of Essential Commodities Act, 1955 is a general order as

distinguished from executive order which is specific. Order asking a person to

1
(1994) 5 SCC282
evacuate house, is an executive order where as an order laying down prices of
commodities is a legislative order. All the terms are used interchangeably.

Meaning of Delegated Legislation:

Delegated legislation means permitting bodies beneath parliament to pass their

own legislation. The three main forms of delegated legislation are statutory
instruments, by-laws and orders in Council.

Statutory instruments are created by government departments for areas under their
responsibility. The Parent Act gives the department¹s permission as well as
guidance about how the new piece of legislation is to be written and processed.
Under Statutory Instruments the Minister for Transport will be able to deal with
necessary road traffic regulations and the Health and Safety Executive may use a
Statutory Instrument to change safety law; statutory instruments give department¹s
immense freedom to change the law and as a result 3,000 statutory instruments are
brought into force each year.

By-laws are created by local authorities to cover matters in their own area, which
must be approved by central government. For example Nottingham City Council
along with many other local authorities in the country is enforcing a car ban in the
City Centre area. Public bodies such as the British Airport Authority and the
railways can enforce rules about public behaviour on their premises. Another
example of a bylaw is the smoking ban on the London Underground System.

Orders in council are laws passed in an emergency by the government, when

parliament is unable to sit. Under the Emergency Powers Act 1920 orders in
Council are approved by the Privy Council and signed by the Queen. An example
of when Orders in Council could have been used is during the bombing of the
World Trade Centre in September 2001, if the speculations that the Houses of
Parliament was next to be attacked came true, then orders in council would have
been the last resort.

The need for delegated legislation

Delegated legislation is necessary for a number of reasons: parliament does not

have time to contemplate and debate every small detail of complex regulations, as
it only has a limited amount of time to pass legislation, delegating legislation will
allow however thoroughly debated regulations to pass through as well as saving
parliamentary time.

Delegating legislation allows law to be made more quickly then parliament, which
is vital for times of emergency. Parliament takes longer as it does not sit all the
time and its procedures is generally quite slow and complex due to the several
stages each bill has to pass through. Delegated legislation can also be amended or
revoked relatively easily, so that the law can be kept up to date and so that the law
can meet future needs that arise such as areas concerning welfare benefits,
illustrating a great deal of flexibility in the system. Otherwise statutes can only be
amended or revoked by another complicated and time-consuming statute.

MPs do not usually have the technical knowledge/expertise required in for example
drawing up laws on controlling technology, ensuring environmental safety, and
dealing with different industrial problems or operating complex taxation schemes
whereas delegated legislation can use experts who are familiar with the relevant
areas. Jacqueline Martin has suggested instead Πfor parliament to debate the
main principles thoroughly, but leave the detail to be filled in by those who have
expert knowledge of it.
Another argument for the need of delegated legislation is that parliament may not
always be the best institution to recognize and deal with the needs of local people.
As a result local people elect councilors from certain districts and it is their
responsibility to pass legislation in the form of by-laws to satisfy local needs.

Reasons for Growth

1. Law making or ever widening modern welfare and service state is not
possible. For the nature and quality of work required 365 days – may not be
sufficient and if overburdened the parliament can’t give quality legislation.
Also it 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 – it is a cushion against crisis because what
if crisis legislation is needed.
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.
Committee on Ministers power-: it concluded and recommended that
administrative rule making is useful, inevitable & indispensable.
It has been stated in Cooley's Constitutional Limitations,2 in these words:-

"One of the settled maxims in constitutional law is that the power conferred upon
the legislature to make laws cannot be delegated by that department to any other
body or authority. Where the sovereign power of the State has located the
authority, there it must remain; and by the constitutional agency alone the laws
must be made until the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been entrusted cannot
relieve itself of the responsibility by choosing other agencies upon which the power
shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of
any other body for those to which alone the people have seen fit to confide this
sovereign trust."

The same learned author observes thus in his well-known book on Constitutional
Law3:-
"No legislative body can delegate to another department of the government, or to
any other authority, the power, either generally or specially, to enact laws. The
reason is found in the very existence of its own powers. This high prerogative has
been entrusted to its own wisdom, judgment, and patriotism, and not to those of
other persons, and it will act ultra vires if it undertakes to delegate the trust,
instead of executing it."

2
Volume I at page 224
3
4th Edition, page 138
Conditional Legislation: - The legislation make the law but leaves it to the
executive to bring the act into operation when conditions demanding such
operation are obtained.
(a) To bring an act into operation.
(b) To extend the application of any act in force in one territory.
(c) To extend or to except from the operation of an Act certain categories of
subjects or territories.

Fact finding - The element of delegation that is present relates not to any
legislative function at all, but to the determination of a contingently or event, upon
the happening of which the legislative provisions are made to operate.

The law is full & complete when it leaves the legislative chamber, but the
operation of the law is made dependent upon the fulfillment of a condition & what
is delegated to an outside body is the authority to determine, by the exercise of its
own judgment, whether or not the condition has been fulfilled.
The legislature cannot delegate its power to make a law; but it can make a law to
delegate a power to determine some fact or state of things upon which the law
makes, or intends to make, its own action depend - To deny this would be to stop
the wheels of government."4
5 6
Queen V Burah laid down and later followed in King v. Benoari Lal Sarma
that “conditioned legislation is not to be a species of delegated legislation at all. It
comes under a separate category, and if in particular case all the element of
conditional legislation exist, the question does not arise as to whether in leaving

4
Locke's Appeal, 1873, 72 Pa. 491
5
3 App. Cas. 889
6
[72 I.A. 57]
the took of determining the condition to an outside authority, the legislative acted
beyond the scope of its powers.
The distinction between the two i.e. conditional & subordinate legislation is that
of discretion.
Conditional legislation is fact-finding and subordinate legislation is discretionary.
Conditional legislation is a fiction developed by the U.S. Court to get away from
the operation of the doctrine of separation of power.
Putting it metaphorically by Subordinate Legislation the Gun powder is with the
executive and by Conditional legislation Gun & Gun powder both are with the with
by legislation & executive to pull the trigger.
Conditioned legislation contains no element of delegation of legislative power &
is, therefore, not upon to attack on the ground of excessive delegation, delegated
legislation does confer some legislative power on some outside authority & is,
open to attack on the ground of excessive delegation.

Why is it necessary to have controls over delegated legislation?

There are many important reasons why it is necessary to have controls over
delegated legislation. Currently delegated legislation is made by non-elected
bodies away from democratically elected politicians (parliament) , as a result many
people have the power to pass delegated legislation, which provides a necessity for
control, as without controls bodies would pass outrageous unreasonable legislation
which was attempted in the past; in the Strictland V Hayes Borough Council
(1986) where a bylaw prohibiting the singing or reciting of any obscene language
generally, was held to be unreasonable and as a result the passing of this delegated
legislation was rejected.
Below I describe cases where controls over delegated legislation have been
essential in order to avoid authorities abusing there powers, the particular cases
are: R v Secretary of State for Education and Employment, ex parte National
Union of Teachers (2000) and Commissioners of Custom and Excise v Cure and
Deely Ltd 7

Another issue which occur’s making controls over delegated legislation vital is sub
legislation, which is where law making is handed down another level to people
other than those who were given the original power to do so, to implement
important policies. Creating criticism that our law is made by civil servants (who
may know hardly anything about the law) and just stamped by the Minister of that
apartment, this requires law passed by these civil servants to be checked by the
scrutiny committee of parliament or the courts.

Finally delegated legislation can share the same issues as Acts of Parliament such
as obscure wording that can lead to difficulty in understanding the law, which
again makes controls necessary as parliament or the courts can stop unclear
legislation, which will affect the lives of hundreds of people from passing.

Delegation of Powers under the Indian Constitution:

The Legislature is quite competent to delegate to other authorities. To frame the

rules to carry out the law made by it.In D. S. Gerewal v. The State of Punjab, K.N.
Wanchoo, the then justice of the Hon’ble Supreme Court dealt in detail the powers
of delegated legislation under the Article 312 of Indian Constitution. He observed:

7
(1962).
“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 Article 312….”

In the England, the parliament being supreme can delegated any amount of powers
because ther is no restriction. On the other hand in America, like India, the
Congress does nit possess uncontrolled and unlimited powers of delegation. In
Panama Refining Co. v. Rayans, the supreme court of the United States had held
that the Congress can delegate legislative powers to the Executive subject to the
condition that it lays down the policies and establishes standards while leaving to
the administrative authorities the making of subordinate rules within the prescribed
limits.

Limitations to Delegated Legislation:

It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a
limit beyond which delegation may not go. The limit is that essential powers of
legislation cannot be delegated. The essential legislative power consists of the
determination or choice of the legislative policy and of formally enacting that
policy into a binding rule of conduct. The legislature, therefore, may not delegate
its function of laying down legislative policy to an outside authority in respect of a
measure and its formulation as a rule of conduct. So long as a policy is laid down
and a standard or limit established by statue no unconstitutional delegation of
legislative power is involved in leaving to the executive the making of subordinate
rules within the prescribed limits and the determination of facts to which the
legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition
of delegation of law making powers rests. There is no specific provision in the
constitution prohibiting the delegation. The Constitution of U.S.A embodies the
doctrine of separation of powers, which prohibits the executive being given law
making powers.

In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given
plenary powers to legislate on a particular subject there must also be an implied
power to make laws incidental to the exercise on such power. It exercise of a
power is included in the grant of power.

In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided
another justification for delegated legislation that the Constitution confers a power
and imposes a duty on the legislature to make laws, but in view of the multifarious
activities of a welfare State, it cannot presumably work out all the details to suit
varying aspects of a complex situation. The legislature must necessarily delegate
the working out of details to the executive or any other agency.

The controls that exist over delegated legislation and criticisms

Control over delegated legislation is through parliament (via affirmative/ negative

resolution procedures as well as through the scrutiny committee) controls over
delegated legislation also exist through the courts (via judicial review and the
doctrine of ultra vires- explained next).
Parliamentary Control- affirmative resolutions and negative
resolutions

Statutory instruments become law in two ways through the negative resolution
procedure, where after the statutory instrument is written it is shown to parliament
and if within 40 days there are no objections it immediately becomes law if there is
objections however then the statutory instrument is debated in the House of
Commons, House of Lords or in a Standing Committee.

Or through an affirmative resolution procedure where a statutory instrument may

not become law unless specifically approved by parliament; parliament will put an
instruction under the Parent Act, informing that the issue is required to be debated
and voted upon before it becomes law. Under the affirmative resolution procedure
parliament may be required to vote for its approval of the delegated legislation,
which will provide a fair system as each Member of Parliament will represent the
public or a specific body and will provide different views on different laws, it
would also ensure that full parliamentary attention has been drawn to important
legislation. MP¹s also have the advantage of asking ministers questions about
delegated legislation at question time or raise them in debates. A major
disadvantage of this procedure however is that parliament cannot amend the
statutory instrument; it can only be approved, annulled or withdrawn. Another
disadvantage of this procedure is that it can be fairly time consuming of
parliamentary time due to carrying out votes and opposition parties having the
opportunities to raise any objections.

Scrutiny Committee : The scrutiny Committee (also known as the Joint Select
Committee) is responsible for reviewing statutory instruments Œin close detail¹
and drawing the attention of parliament to any delegated legislation which requires
special further consideration before the committee stage of the bill. Possible
problems that the scrutiny committee could go through that may force them to
inform parliament could be that a statutory instrument is going beyond its powers
(known as ultra vires), a statutory instrument is imposing a tax which it is not
allowed to do- only an elected body has the right, a statutory instrument s
producing legislation which is unclear or a statutory instrument is producing
retrospective legislation (backdating an offence), which was not provided for by
the enabling Act.

A major criticism of the Scrutiny Committee is that the committee may not
consider the merits of any piece of delegated legislation (only whether the
delegated legislation has been correctly used) and has no power to alter any
statutory instruments. As the scrutiny committee¹s report has no binding effect it
can sometimes be seen as a waste of parliamentary time as well as the committee¹s
time. The Hansard Society in their 1992 report found that some of the critical
findings of the committee were ignored by ministers, however despite this Elliott
and Quinn highlight Π[the scrutiny committee] makes an important contribution,
and has been able to secure changes to a number of important pieces of
legislation.

Parliamentary sovereignty

Parliamentary sovereignty means that parliament can revoke a piece of delegated

legislation at any time, or pass legislation on the same subject as the delegated
legislation. Parliamentary sovereignty is a major advantage as if for example
unclear legislation was being passed or legislation imposing a tax when not
supposed to, the revocation of that piece of legislation would be vital
Control by the courts- judicial review- doctrine of ultra vires

Judicial review is where judges in the Queen’s Bench Division of the High Court
are asked to review the decisions of inferior courts and tribunal, and also of public
bodies and officials. It allows the courts to supervise the workings of a very wide
range of decision making processes, making sure the process remains fair and
provides access to justice, as well as making sure that powers are not abused.

The most common reason for objecting delegated legislation in the courts is due to
ultra vires- where legislation goes beyond its power that parliament granted under
the enabling Act, whilst the validity of statute can never be challenged by the
courts due to parliamentary sovereignty.

Procedural ultra vires occurs when procedures under the enabling act have failed to
be followed and refers mainly to the situation where a public authority has over
stepped its powers. An example of ultra vires occurred in R v Secretary of State
for Education and Employment, ex parte National Union of Teachers (2000) a
High Court judge ruled that a statutory instrument setting conditions for appraisal
and access to higher of pay for teachers was beyond the powers given under the
Education Act 1996 as a result the statutory instrument was declared void. This
case demonstrated a clear example of where delegated legislation can lead to abuse
of powers and why it is necessary to have controls over delegated legislation.

The problem with enabling Acts is that it provides Ministers with high
discretionary powers as a result Elliott and Quinn demonstrate a phrase such as
Œthe minister may make such regulations as he sees fit for the purpose of bringing
the Act into operation¹ to be quite common; this means it is rare for anything to
lead to ultra vires leaving judicial review Œeffectively frustrated¹ (Elliott and
Quinn).

Under the principle of substantive ultra vires, the courts are able to intervene to
prevent or remedy an abuse of power by public authorities. This occurred in the
Commissioners of Custom and Excise V Cure and Deely Ltd 8, where the power
of the commissioners to make delegated legislation under the Finance Act 1940
was challenged. Under this Act the commissioners determined the amount of tax
due where a tax return was submitted late however the High Court invalidated this
and argued that the commissioners had given themselves powers far beyond what
parliament had empowered, there job was to only collect the amount of tax due.
This is another case whether it has been clearly demonstrated without controls
many authorities will abuse the powers ultra vires and again demonstrates why it is
necessary to have control over delegated legislation. In this demonstration control
by the courts has proved to be highly effective.

Consultation

Ministers have the benefit of further consultation before regulations are drawn up.
Those who make delegated legislation often consult experts in those relevant fields
as well as those bodies who are likely to be affected by it. An example of a
consultation process could be given under road traffic regulations, where ministers
are likely to seek the advice of police, motoring organisations, vehicle
manufacturers and local authorities before making the rules.

8
1962
Publication

All delegated legislation is published and therefore provides an opportunity for

public scrutiny. However Elliot et al argue publication has only Œlimited benefits¹.
The large volume of delegated legislation makes it difficult for the public to
understand what the current law is; also the majority of delegated legislation is
made in private Œin contrast to the public debate of parliament¹ (Jacqueline
Martin). People are also unaware of their rights; on what grounds law can be
challenged and how to go about doing so making it difficult for public scrutiny. On
the other hand many people also lack financial resources to go to court, which
means legislation is let unchallenged.
Conclusion -Are the different controls satisfactory?
After having reviewing the controls that exist over delegated legislation I have
discovered many flaws in the system such as the Scrutiny Committee not being
able to consider the merits of any piece of delegated legislation (only whether the
delegated legislation has been correctly used) and the Scrutiny Committee having
no power to alter any statutory instruments and parliament only being able to
approve, withdrawal or annul legislation. As a result the different controls are not
satisfactory; however there are reformations that could take place to improve the
current delegated legislative process. Parliament should be able to amend a
statutory instrument rather then just withdrawing it, approving it or simply
annulling it. Another reformation that could take place in order to improve the
current system of delegated legislation is for parliament to vitally consider the
critical findings of the Scrutiny Committee, as it is appalling to know that months
and years of hard work from the Scrutiny Committee on delegated legislation is
Bibliography
Books referred

I. Delegation of Legislative Powers by Monica Chawla

II. Administrative law by C. K. Takwani
III. Constitution of India by M.P Jain