C HAP T E R IX

SUBORDINATE OR DELEGATED LEGISLATION

Nature of Power to Delegate
As our Supreme Court has observed, it is now well settled that the
power of delesation is a constituent element of the legislatiYe pOWeI: as a
whole, . and in modern times when the legislatures enact iaws to meet the
challenge of the t..omple~odo-economjc policies-;-ihey . often_ ~.Ild it
necessary and convenient to del_~.&!t~ ..subsidiary or ancillary powers to
delegates of their choice for carrying out the policy of the legislation. 1
The extent to which such delegation is permissible is also well
settled. The legislature cannot delegate its...e~sential function of legisla-
- tion in any case. It must lay down the legls-
BXTBNT OF DBLEGATED tive policy and principle, and must afford
POWER guidance for carrying- out the sai<LQQ\i~y before
it -delegateSlts'·subsldmry·-powers. 2
In dealing with the topic of delegated or subordinate legislation, we
will have to leave out of consideration what has come to be known as
conditional legislation. In conditional legislation, accord-
CONDITIONAL ing to the view expressed by the courts, there is no dele-
LEGISLATION gation of legislative power. The law is complete in all
its aspects, but discretion is given to an outside authority
to take certain steps in relation thereto. Thus, it bas been held that a
provision that certain parts of an Act shall come into operation only on
the petition of a majority of electors does not confer on the electors the
power to legislate. Nor a power conferred on an outside authority to
bring it into force on a suitable date or authorising it to fix different dates
for different areas and so on. S The power to extend the life of an Act
has also been held not to involve delegation of any legislative power."
A power similarly conferred on an outside authority to extend the

1. V.M. Sanjanwalla v. The State of Bombay. A.I.R. 1961 S.C.4; Makhan Singh v,
The Stale of Punjab. A.I.R. 1964 S.C. 281; Mohamedali v. The Union of India,
A.tR. 1964S.C. 980 (a case under the Employees Provident Funds Act, 1952.
2. V.M. Sanjanwalla's case ante; see also Municipal Corporation nf Delhi v, Birla
Cotton Spinning and Weaving Mills, A.tR. 1968 S.C. 1232(whether the Act pro-
vides sufficient guidelines may itself prove difficult to decide in certain cases).
3. Russell v. The Queen, (1882) 7 A.C. 829; Tire Queen v. B..,rah, 5 I.A. 178(1878);
]\ing-Emperor v. Behori Lal Sharma, (1945) A.C. 14, 24; Sardar Inder Singh v. The
State of Rajasthan, A.l.R. 1957 S.C. 510.
4. Sardar Imler Singh v. The State of Rajasthan, A.I.R. 1957 S.C. 606; A.l.R. 1957
S.C. 510; (dissenting from Jatindra Nnth Gupta v. The Province of Bihar, A.I.R.
1949F.C. 175.)
138 THE DRAmNG OF LAWS

jurisdiction of the City Civil Court would also not involve delegation of
legislative power."
A provision in a law stating that rules or orders made by the execu-
tive thereunder shall have the effect of overriding other laws is not neces-
sarily a delegation of legislative power. Such a provision has merely the
effect of by-passing a law and, having been made by the legislature itself,
it does not suffer from any such defect.e
In all such cases it is assumed that the delegation is non-legislative
in character. The policy of the law is settled; the law is also complete
in all respects; only a power to fill in minor detailc as respects its opera-
tion is involved in such cases. In passing, it may, however, be added
that with respect to the question relating to the dele ation of legislative
power, strictly so called, the 1 cu y as been to draw the line between
a leglslat~e power and a non-legish1.~jve pQ}Yer. _.
--The true distinction-wQUld be between the delegation of power
to make the law which necessarily involves a discretion as to which the
law should be and the conferment of an autho-
DISTINCTION BETWEEN rity or discretion as to the execution of the law
CONDITIONAL LEGISLA- to be exercised under and in pursuance of the
TION AND DELEGATED law. While objections may be raised in the
LEGISLATION case of the former, the latter is generally un-
objectionable, What the case-law has done
so far is to state a number of principles by which the legality of the
delegation by the legislature is to be determined although the application
of these principles in a given case may not always be easy.' .
The convenient and most common form of delegation of legislative
power, a form which India has inherited from Parliamentary legislation
in the United Kingdom, is to exclude from the body of
THE COMMON the Act such details as could very well be left to an
FORM OF executive agency to fill in. This is all the more neces-
DELEGATION sary in modern times when, due to the complexity and
OF LEGISLA- technical nature of many a law, it is not possible to
TIVE POWER foresee at the time of drafting an Act all possible

5. The Stale of Bombay v. Narottamdas Jethabhai, A.l.R. 1951 S,C. 69.

6. Harislumkar Bagla v, The State of Madhya Pradesh, (1955) S.C.R. 380; See also
Ramananda Agarwala v. The State, 55 C.W.N. 572; Jaolal Agarwala v, The State
(1952) S.C.R. 127; Laxmibaxi v, The State, l.L.R. (1951) Nag. 563.
The mere fact that an industrial tribunal (without being invested with the
power to make rules) while pronouncing awards in the several industrial disputes
referred to it for adjudication, lays down certain principles or rules of conduct for
the guidance of employers and employees does not amount to exercise of any legis-
lative power. Niemala Textile FUlishillg Mills Ltd. v. TIle Punjab Trtbunal, A.I.R.
1957S.C. 329.
7. In re Kalyanam, A.I.R. 1950 Mad. 243, 247,248; "a baffling subject" in the words
of the Supreme Court, State of Assam v. Sristikar Dowerah, A.I.R. 1957 S.C. 414
422.
 SUBORDINATE OR DELEGATED LfGISLATION 139

contingencies. No doubt the aim of any law should be to project jts miDd
as far as possible into the future and to provide for all possible con-
tingencies likely to arise in the application of the law. But there is a
liiilit tOfulsexercise and it is not always possible to provide specifically
for all cases which may arise. All that can be done in such cases is to
lay down the principles and policy of the law with sufficient precision
and definiteness. Even assuming that a code complete in all aspects
could be evolved, the pressure on Parliamentary time is also a factor
to be taken into account in getting such a measure through," Again, a
certain measure of flexibility may also be needed in regard to what are
really subsidiary or ancillary matters so that they can more appropriately
be dealt with by the delegate from time to time.

Forms of Subordinate Legislation

Such subsidiary or subordinate legislation may take various forms,
e.g., rules, regulations, notifications, bye-laws, orders or schemes. Section
24 of the General Clauses Act, 1897, itself refers to some of these in the
context that notifications, orders, bye-laws, forms and rules will continue
in force where an enactment under which they are made is repealed and
re-enacted with or without modifications. See also section 20.' .
The expression "rule" is defined in the General Clauses Act, 1897,
as a rule made in exercise of a power conferred by any enactment and
will include a regulation made as a rule under any enactment.
RULE The Mines Act, 1952, may be cited as an illustration of a case
where a regulation may also be regarded as a rule. (See sec-
tions 58 and 59). The most common form of delegation of legislative
power is to authorise the execu£i\re (0 frame rules for carrying into effect
the obiects-anopurposes-or the Act. Rules ma~ned as minor laws.
~bly the Act also sets out tor the guidance of" the executive the
topics on which such rules may be made, although the lists of topics so
set out are not intended to be and may not be exhaustive.
Regulations (as opposed to laws made in the form of Regulations
and falling within the definition of Regulation as contained in the General
Clauses Act, 1897), are somewhat inferior to rules in
REGULATION that they are generally made by a subordinate authority
like a Board or other statutory Body t'iiiiCtfoning under
----------------- - --------------
8. See I.A. Shodlrall v. F.N. Rona, A.I.R. 1964 S.C. 648.
Except where a statutory power is made by the legislature to be dependent or
conditional upon the making of rules or regulations, the exercise of the statuto.y
power cannot be held to be in abeyance or in suspense unless such subordinate
legislation is framed by the administrative authority. Cajee v. Siem, A.I.R. 1961
S.C. 276, 281; A.K. Maity v, Board of Secondary Education 71 C.W.N. 396,403.
9. I.A. Shodhan v. F.N. Rona. A.I.R. 1964 S.C. 648, discusses the various types of
sub-ordinate legislation.
 140 THB DRAFTING OP LAWS

a statute. It The draftsman would be well-advised to preserve a distinction

between rules and regulations. The Indian practice is to confer rule-
making powers on the Government itself and where a specified subdrdi-
nate authority is singled out for regulating any matter, the subsidiary
legislation is generally in the form of regulations. Such regulat~ns may
be needed only for binding the members of that authority or tfiey may
have a wIder signific.ance. Rules, on the other hand, have invariably a
much wider applicatlon." .
The expression "bye-law" is generally used when a body like the
municipal corporation is authorised to deal with specified matters. For
instance, building bye-laws. A Bye-law 'isan ordinance
BYB-LAW affecting the public or some members of the public. It ne-
cessarily involves restriction of liberty of action by persons
who come under its operation;:s to acts which but for the bye-law they
would be free to do. Further, if validly made, it has the force of law
within the sphere of its legitimate operation. 12 ---
While a rule is general in character and indiscriminate in its applica-
tion, an order, broadly speaking, is specific and may be limited in its
- - ~!jgtion. On the other hand, instances of orders having wide
ORDER application and standing more or less on the same footing as
enactments are not uncommon. Instances of these are orders
made under the Defence of India Act, 1971, the Essential Com modities Act.
1965, the Adaptation Orders under the Indian Independence Act, 1947,
the Constitution and so on.
While an order having the authority of law behind it may be recog-
nised by courts, unless the order prescribes a rule of conduct which persons
living in the community have to obey, there can be no question of its
enforceability by a court of law or other authority. It is only where the
order is enforceable by courts or other authority that it can be said to
have the force of Jaw.II Quite often, use of the capital "0" is resorted to
by tbe draftsman to draw a distinction between orders enforceable by
courts and orders of the strictly limited variety, but such a device has no
legal significance.

JO. See A.K, Moil)' v. Board of Secondary Education, 71 C.W.N. 396 (1967) where it
is stated that a rule is superior to a regulation.
11. C/. Every exercise of a statutory power by a rule-making authority which is of a
legislative and not of an executive character is to be deemed to be a statutory rule
within the meaning of the Rules Publication Act, 1893(56 & 57 Viet., c. 66).
J2. A bye-law can be challenged if it is unreasonable; while a rule cannot be so
challenged. MulchondGulabchondv. Mukund Shivram, A.LR. 1952Bom. 296. The
early history of the expression "bye-law" is that when the Danes acquired posses-
sion of a shire in England, the township was often called a "by" and as they
enacted laws of their own, they were called "by-laws" "town-laws" (Iyer's Low
Lexicon; sec also the definitions in Stroud and Wharton). Kruse v. Johnson, (1898)
2 Q.B. 91, 96.
13. J.A. Shodhan v. E.N. Rona, A.l.R. 1964 S.C. 648, 667.
 SUBORDINATE OR DBLEGATED LEGISLATION 141

"Notify means make known and, in the case of public matters, it

generally means that some persons whose duty it is to notify something,
gives it in the manner prescribed and to persons entit-
NOTIFICATION led to receive it. Quite often, the relevant statutes may
define "notification" to mean notification in the official
gazette. The Burma General Clauses Act contains such a definition.
Notifications may be of two kinds. Most Government orders are notified
so that the 'public may know them. All of them do not have the force of
law. Only such notifications have the force of Jaw which are a species of
SUbordinate leglsfation passed by a body having authority to promulgate
them- an<CwbiclliaYdown some rules of conduetfor persons in the com-
munity to obey. App()intmt:n~,.postinM..and transfers of Qffi--Cemh.w..hich
are often notifi~.~Jn the Gazette cannot obviously have the force of law. u
.A -''Scheme'' may be of two kinds. It may embody subordinate
legislation containing a body of rules binding on persons with whom the
rules are concerned and in such a case, if passed by an autho-
SCHEMEl rity having the necessary power to do so, they will be enforce-
able in courts of law or by other authorities and will have the
force of law. The other kind of scheme may be purely executive in
character and does not contain any rules of conduct for any body to
follow.t!
A "proclamation" is the act of proclaiming, a declaration or notice
by public outcry such as is given by criers or a public notice 'in writing
. ----- given by a State or departmental official of some act
PROCLAMATION done by the Government or to be done by the people.
It is in the above sense that the word is used in section
26 of the Police Act of 1861 which provides for the disposal of unclaimed
property by the police after issuing a proclamation.
On the other hand, legislation in pursuance of some statutory power
may also take the form of proclamations. For instance, in case of failure
of the constitutional machinery in any Sta~e, the President may, by Pro-
Cfamation, assume to hImself tlie-powers of the State legislature and also
-makesUCllincidemar;or consequential provisions as may be necessary or
destfliOle to give elfect to theo15Jects of the Proclamation. (art. 356 of the
Constitution). The President may also declare by Proclamation a state of
emergency which has the force of law (art. 352).
- A "resolution" passed by Parliament is the form in which that body
expresses an opinion. It is generally a suggestion or declaration concurred
in by both Houses where there are tWI> Houses or passed by one House if
there be but one and not submitted to the executive for
RESOLUTION approval. The Legislature often requires the executive to
take action by means of resolutions, For implementing

14. I.A. ShoJ'l.1ll·s case, supra.

IS. IbiJ.
142 THB DRAFTING OF LAWS

such resolutions it may sometimes be necessary to enact legislation. [See

for instance. The Commissions of Inquiry Act; 1952 (60 of 1952; The
Indian Rubber Control Act, 1934).]
A "resolution passed by Parliament under article 249 or by the
Legislature of a State under article 252 is not equivalent to a statute. It is
only a declaration and enables some further action, including legislative
action, to be taken.
The tendency to regulate certain matters by subordinate legislation
as exemplified in English Parliamentary legislation, had earlier attracted a
great deal of attention and considerable hostile comment.
THE NEW This apparent surrender by Parliament of a large part of
DESPOTISM its legislative functions to the executive departments of the
State was focussed in 1929 by Lord Hewart of Bury in the
New Despotism (London). Cecil T. Carr in Delegated Legislation (Oxford
University Press, (1921) and W.A. Robson in Justice and Administrative
Law, Macmillan & Company (1928), had already examined the extent of
the growth of the phenomenon, the advantages and disadvantages of the
practice, and the nature of the checks on it. The publication of Hewart's
book had been preceded by the appointment on the 30th October, 1929,
of a Committee to consider the powers exercised by Ministers of the
Crown by way of delegated legislation and to report what safeguareds are
desirable or necessary to secure the constitutional principles of the soverei-
gnty of Parliament and the supremacy of the law. The report of that
Committee published in 1932 by H.M's Stationery Office as Crnd, 4060 to
a large extent provided the necessary corrective 18
"The truth is that if Parliament were not willing to delegate law-
making power, Parliament would be unable to pass the kind and quantity
of legislation which modern public opinion requires.t'V On the ground
merely of efficient drafting, Lord Thring,'" Parliamentary Counsel to the
Treasury, had advocated in 1877 that procedure and matters of detail
should not be included in an Act, but if possible should be left to be
prescribed, and his successors in the Parliamentary Drafting Office of
the Treasury have maintained this view.Ie

16. Bartley's General Clauses Act, 1897 pp. 151, 152. (1940).
17. Report of the Committee on Ministers' Powers, p, 23.
18. Thring, PracticalLegislation, Chapter II, paragraph 12.
19. For instance, Sir Henery Jenkyns, a Parliamentary Counsel, has recorded the
following official minute
Statutory rules are in themselves of great public advantage because the
subject of them can thus be regulated after a Bill passes into an Act with
greater care and minuteness, and with better adaptation to local or other
special circumstances than they possibly can be in the passage of a Bill through
Parliament. Besides, they mitigate the inelasticity which often otherwise makes
an Act non-workable and are susceptible of modifications from time to time by
the Government Department at any time of the year as circumstances arise.
 SUBORDINATE OR DELEGATED LEGISLATION 143

The Committee on Ministers' Powers referred to above found the

practice of delegating law-making power
REPORT OF COMMITTE ON
MINISTBRS' POWERS justifiable and even inevitable, because-

(a) it relieved pressure on Parliamentary time, leaving Parliament

to deal with essential principles of legislation,
(b) Parliament cannot effectively deal with technical matters,
(e) administrative details cannot be worked out in time, nor can the
contingencies or local conditions to be provided for be foreseen,
(d) unknown future conditions demand flexibility,
(e) the need to experiment and profit by experience cannot otherwise
bernet,
(I> sudden emergencies cannot otherwise be handled.
Herbert Morrison, writing 011 delegated legislation in his book
Government and Parliament advances
lUSTIFICATION FOR DELEGATED three. in his opinion, reasonable argu-
LEGISLATION AND DANGERS ments for Ministers having the power to
INHERENT make subordinate legislation.

These are,
First, it really is impossible in modern conditions for Parliament to
set out in an Act all the details of administration for the wide field
of modern legislation, which is more complex in character than most
of the legislation of the nineteenth century. Secondly, there is the
very important and practical point that it is impossible to foresee in
. framing a Bill whether conditions will or will not change in a manner
requiring modifications in detailed statutory provisions. If and when
such changes in circumstances arise both Parliament and the public
would be frustrated if (as would be quite likely) parliamentary time
were not available to put things right, whereas delegated legislation
can rapidly be revised by the issue of another Statutory Instrument.
Parliament has the same rights over such a changed instrument as
over the original. Finally, it should be noted that no Minister can
make regulations having the force of law unless he has specific
authority (usually by Statute) to do so. The Statute defines the field
within which and the purposes for which the Minister can create
delegated legislation, so that Parliament at the time of its detailed
consideration of the Bill is in a position to limit and define his
powers and prescribe his parliamentary accountability. Generally,
therefore, not only must the regulations be within a purpose already
approved by Parliament, but usually they are relatively (and I
emphasize relatively, because they can be of importance) of limited
significance, filling in the details of a Statute. The principle of
delegated legislation is, I think, right, but I must emphasize that it is
144 THB DRAFTING OF LAWS

well for Parliament to keep a watchful and even jealous eye on it at

all stages."

The Committee excluded from the purview of delegated legislation

NORMAL AND ABNORMAL and characterised as executive such statutory
TYPB OF DEUlGATION powers as-

(a) the power to issue a particular command,

(b) the power to license,
(e) the power to remit a penalty.

In considering delegated legislation, whether by statutory orders in

councilor departmental statutory regulations (including rules, orders,
warrants etc), it distinguishes between a normal type of delegated legisla-
tion, and an exceptional type of delegated legislation. The normaltype of
delegation, in the opinion of that committee, is characterised by the fact
that the limits of the delegated power are dearly defined in the enabling
Act and do not include such exceptional powers as the power to legislate

20. C.K. Allen in his book Law and order. 1945, has the following criticism to offer on
arguments based on convenience, flexibility and efficiency with respect to the dele-
gation of such powers
All these are sound arguments for delegation within due limits, the kind,
in fact, which has always been recognised as a practical and necessary part of
our governmental system. But they become unsound and dangerous if they are
used to justify the indefinite extension of executive powers. Speed and effici-
ency may be bought at too high a price, and indeed we should have learned
from many examples that the State which makes efficiency its highest god is
very apt to become an all-devouring monster. It is "impossible to foresee all
the contingencies" not only in "large and complex schemes of reform," but in
any legislation whatever. Our law reports bear abundant and melancholy,
testimony to the casusomissi in innumerable statutes; but nobody, I presume,
would suggest that it should be left to the executive to correct all statutes
which happen to produce unexpected consequences. It is indisputable that in
many Acts there is a considerable amount of administrative detail which can
and should be left to the excutive; but nothing could be more inimical to the
true function of Parliament than that it should relax the effort to "foresee
contingncies," for that and not merely the pursuit of desirable ends, is an
essential part of the business of law-making. It would be a strange kind of
larceny law which laid down the principle that men should be honest, and left
it to a subordinate authority to work out all the possible circumstances in
which they might be dishonest. Again, while "flexibility" may be much more
convenient than the notorious rigidity of statutes, it is certain that if an enact-
ment is flexible enough, it may soon be bent entirely out of its original shape-
possibly, in the opinion of some, to a better shape, but still not that which
Parliament designed. The same is true of "experiment"; give enough room
for experiment by administrators and it is inevitable that before long policy as
wetl as practice will be in the hands of the executive. In short, administrative
efficiency ceases to be a proper constitutional aim when it is employed to
relieve Parliament of its responsibilities.
 SUBORDINATB OR DBLBGATBD LIIGISLATlON 145

on matters of principle or to impose taxation or to amend an Act of

Parliament. The exceptional type embraces cases where the powers just
cited are given, or where the power given is so wide that its limits are
almost impossible of definition, or where, while limits are imposed, the
eontrol of the courts is ousted. These cases, the Committee thinks, have
in the past generally resulted from the special nature of the subject matter,
and should in the future be confined within the narrowest possible limits.
To the normal type of delegated legislation the Committee found no
objection, but it proposed that such legislation should be scrutinised by a
Standing Committee of Parliament, should
SAPBGUARDS FOR NORMAL be given antecedent publication under an
TYPES OF DBLEGA!10N amended Rules Publication Act, and should
never be withdrawn from review by the
courts.
A subordinate law-making authority is bound by the terms of its
delegated or derived authority and courts of law, as a general rule, will
not give effect to any rules unless satisfied that all the conditions preceding
the validity of the rules have been fulfilled, that is to say, the rules
must be within the rule-making power.1t
In the context of delegation of legislative power generally, the ob-
servations of Justice Subba Rao, in V.M. SanJanwalla'! easelS may be
cited. He said
there is a danger inherent in a process of delegation. An over-
burdened legislature or one controlled by a powerful executive may
unduly overstep the limits of delegation. It may not lay down any
policy at all; it may declare its policy in vague and general terms
and may not lay down any standard for the guidance of the execu-
tive; it may confer an arbitrary power on the executive to change or
modify the policy laid down without reserving for itself any control
over subordinate legislation. This self-effacement of legislative
power in favour of another agency either in whole or in part is
beyond the permissible limits of delegation.
The Indian legislature does not stand in the same position as the
British Parliament as regards the constitutionality of delegation of legis-
lative power. How far such delegation is permis-
PosmON OF INDIAN sible in the Indian context has to be ascertained as
LEGISLATURES I.E a matter of construction from the express provi-
DBLBGATlON sions of the Constitution. In the words of
Mukherjee J. in the DElhi Laws Act case", "It
cannot be said that an unlimited right of delegation is inherent in the
-----------------------~--
21. Hukum Chondv. Union of India, A.I.R. 1972S.C. 2427.
22. A.I.R. 1961 S.C. 4.
23. (19S1) S.CA. 747.
146 THE DRAFrlNG OF LAWS

legislative power itself. The legislature must retain in its own hands the
essential legislative functions' which consist in declaring tbe legislative
policy and laying down the standard which is to be enacted into a rule of
law, and what can be delegated is the task of subordinate legislation
which, by its very nature, is ancillary to the statute which delegated the
power to make it. Provided the legislative policy is enunciated with suffi-
cient clearness or a standard laid down, the courts will not interfere with
the discretion of the legislature in determining the extent of delegation
necessary in a particular case". In that case (which revealed a sharp
conflict of views on the subject) it was held by a majority that while a
power to the executive to extend an Act in force in any state to a Union
territory would be a valid delegation, a power to make provision in rela-
tion to any enactment so extended to any such territory by notification
for the repeal or amendment of any corresponding law for the time being
applicable to that territory would be ultra vtres as being a delegation of
legislative power not permissible.
The courts thus exercise judicial control over subordinate legislation
and there have been several cases subsequent to the Delhi Laws Act case
in which the question of permissible delegation of legis-
PERMISSIBLE lative power has come up for consideration. Broadly
UMITS OF stated, the legislature cannot efface itself or strip itself
DBLEGATION of its legislative power. That is to say, the legislature
cannot delegate its function of laying down legislative
policy in respect of a particular measure. It must declare the policy of
the law and the legal principles which are to control any given case and
must provide a standard to guide the official or body in power to execute
the law. Where, for instance, a power to grant or renew a license is
given to an executive authority, care should be taken to see that in cases
of refusal the law contains sufficient guiding principles for the purpose,
that the authority is required to state his reasons for such refusal and that
there is a right of appeal. It is always for the courts to declare on a fair,
generous and liberal interpretation of the language employed in a statute
whether the legislature has exceeded the permissible limits in the case of
delegated legislation. U
Thus, even where an Act like the Essential Supplies (Temporary
Powers) Act, 1946 which could be said to be sketchy in character in that
it left the supply, distribution and availability of any essential commodity
to be regulated by the Central Government by order, the policy of the
law being clear both from the preamble and the body of the relevant sec-
tion, the delegation was held to be within permissible Iimits.2I Again

24. V.M. Sanjanwalla's case, supra, n. I; see also Bhatnagar v, Union 01 India, A.I.R.
1957 S.C. 478; Har; Chandv, Mizo District Council, A.I.R. 1971 S.C. 474; 476;
Chandrakant v, Jasjit Singh, A.I.R. 1962S.C. 204.
25. Harishankar Bogla v. The State of Madhya Pradesh, (1955) S.C.R. 380.
 SUBORDINATB OR DBLBGATBD LBGlSLATION 147

where a power was given to the Government to add any employment to

the Schedule of Minimum Wages Act, 1948, so that minimum wages
could be fixed in respect of that employment also, the court held that the
legislature had not effaced itself thereby of its legislative power and that
it had only assigned an accessory or subordinate power to the appropriate
Government to carry out the purpose and policy of the Act. 2'
Power may be vested in an executive authority while extending an
Act to a new area by notification to modify it in its application and no
objection weuld be taken to its exercise so long as it is used to make any
peripheral or insubstantial changes as are necessary or appropriate for
adaptation and adjustment, and it is not used to make any change in its
essential features or in the legislative policy built into it (a phraseology
which it is not always possible to define with sufficient precision or defi-
nitenessj." The time when the provisions of a statute should be imple-
mented or the place where they should be applied or the period during
which they should be so applied could all very well be left to the delegate
so long as the policy of the law is clear."
Power to remove a doubt or difficulty by altering the provisions of
an Act (in this case, the Payment of Bonus Act, 1965) was held by a
majority of the Judges to amount to exercise of legislative authority which
cannot be delegated to an executive authority. In the opinion of the coun
the matter would be made worse by providing that an order made by the
Central Government for removing any such doubt or difficulty shall be
fina]."
The Indian Constitution also contains provisions where it is ex-
pressly stated that Parliament may by law provide for certain specified
matters. For instance, article 312 provides that Parliament may, by law,
provide for the creation] of one or more All India services. Such a pro-
vision does not necessarily mean that the constituent element of delega-
tion is done away with. And an Act like the All India Services Act, 1951,
which leaves practically everything to rules to be made by the executive
would not be open to objection once it is held that the policy of the Act
is clear and the Act has also enacted that policy into a binding rule of
conduct."
Although statutes like the Essential Supplies (Temporary Powers)
Act, the All India Services Act, the Defence of India Act and the like
may be said to constitute the high watermark of delegation of legislative
power, they are by no means uncharacteristic. The draftsman should

26. Edward Mills Co. Ltd. v, State of Ajmer (1955) 1 S.C.R. 25.
27. Rafttarain Singh v. Chairman, Pama Administration Committee, (1955) S.C.R. 290;
Lachmi Narain v. Union of India, A.I.R. 1976 S.C. 714.
28. Bhatnagar v, Union of India, A.1R. 1957 S.C. 478-a· case under the Import and
Export (Control) Act, 1947.
29. lalan Trading Co. Ltd. v. Mills Mazdoor Sabha A.I.R. 1967 S.C. 691.
30. D.S. Grewal v. State of Punjab, A.I.R. 1959S.C. 512.
148 THE DRAJITING OF LAWS

always consider the whole matter not only from the point of view of
necessity or propriety but also from the point of view of the constitutional
limitations on the legislature or, in other words, the powers exercised by
the superior courts to examine subordinate legislation.
What guidance should be given to the delegate in a given case will
depend upon a consideration of the provisions of law made in that behalf.
The nature of the body to which the power is dele-
GUIDANCE TO THE gated may be a factor for consideration. In some
EXBCUTIVB AND cases broad guidance may be sufficient, while in
OTHBR SAFEGUARDS others more detailed guidance may be necessary."
The draftsman will thus have to exercise special
care in framing delegated legislation.
For instance, the Indian Statute Book contains many instances of the
power to impose taxes being delegated. Parliament, no doubt, is extre-
mely reluctant to delegate such a power, but cases have arisen in which
Parliament has had to accept the necessity for the grant of such a power
for the efficient operation, for instance, of a tariff system. An indigenous
industry may need immediate protection by adjustments made in the
matter of the duties leviable on articles imported into India of the kind
manufactured locally. Or it may be that in the interest of the country,
profits on export earned by exporters by reason of fortuitous circumstances
should be mopped up immediately. Objects like these cannot obviously
be secured if the slow-moving machinery of Parliament is to be utilised for
this purpose. As instances of this type of legislation may be cited
section 3 A of the Indian Tariff Act, 1934 (as inserted in 1951)
which authorised the Central Government to levy protective duties
in certain cases by notification. The safeguards provided were that the
power could only be exercised upon a recommendation of the Tariff
"Commission and a Bill had to be introduced in Parliament in the
session immediately following the date of the notification to give
continued effect to provisions contained in the notification. Sec-
tion 4A of the same Act (inserted in 1950) authorised the Central
Government in emergent cases to increase the export duty leviable on any
article or to levy export duty on any new article, where ever it was
necessary to do so. Parliamentary control was to be exercised over such
power by requiring all such notifications to be laid before Parliament as
quickly as possible and requiring Government to move a confirmative
resolution if the notifications were to be continued. Section 3 A of the

31. The Murreipal Corporation of De/hi v, Bir/a Cotton Spinning and Weaving Mi//& Ltd.
A.I.R. 1968 S.C. 1232; Mis Ju//undur Rubber Goods Manufacturers Association v.
Union of India, A.J.R. 1970 S.C. 1589; S.K. S~ngh v. V.V. Girt, A J.R. 1970 S.C.
2097 (power conferred on the Central Government to make rules regarding
Presidential and Vice-Presidential elections after consultation with the Election
Comm ission and for the purpose of carrying out the purposes of the Act were held
to be sufficient guidance).
 SUBORDINATE OR DELEGATED LEGISLATION 149

Central Excises and Salt Act, 1944 (I of 1944), added by Act, 81 of 1956
(now repealed) is a recent instance in which Parliament had authorised
the executive to increase excise duties by notification. The checks provided
were that the increase should not be more than fifty per cent of the duty
fixed by Parliament, that no notification should be issued while Parliament
is in session, that any notification issued should be laid before Parliament
within seven days- of its re-assembly after the date of the notification and
that the Government should seek the approval of Parliament thereto.
Section 12 of the Rubber Act, 1947 (24 of 1947) authorises the Central
Government to levy a duty of excise on rubber produced in India, subject
to a maximum limit prescribed. Section 13 authorises the Central
Government to fix by order the maximum and minimum prices for sale
of rubber.
In this context it would be well to remember that an uncontrolled
power to the executive to levy a tax may amount to an effacement by the
legislature of its legislative power and so invalid.s"
The statutes conferring powers to make rules or orders frequently
contained from 1850 onwards some such provision as that of section 78,
Bankruptcy Act, 1869 (32 & 33 Vict., c. 62),
INSTANCES TO ENSURE which provides that rules made by the Lord
FINALITY TO DELEGATED Chancellor "as to any ... matter... in respect to
LEGISLATION which it may be expedient to make rules for
carrying into effect the object of this Act"
should "be deemed to be within the powers conferred by this Act and ...
be of the same force as if they were enacted in the body of this Act". The
Patents, Designs and Trade Marks Act, 1883 (46 & 47 Vict., c. 57), out
of which arose the case Institute of Patent Agents v. Lockwood" contained
in section 101(5) the simpler formula that rules made in compliance with
certain procedure were "to be of the same effect as if they were contained
in the Act." This formula was adopted in India in the Indian Post Office
Act, 1898 (6 of 1898), and in some Acts subsequent to that Act. Indian
Acts of recent years have largely dispensed with the formula on the view
that it was in effect no more than a statement of the obvious. In the
Lockwood" case the question was whether certain rules made by the Board
of Trade were intra or ultra vires. They were made in conformity with
provisions governing the making. The Act provided that the rules should
be of the same effect as if they were contained in that Act. The Law Lords
expressed opinions (not however unanimous) on the question whether in
-~ -- ~-~ ------ - - -~-----------

32. Mis. Devl Das v. The Stale of Punjab, A.l.R. 1967 S.C. 1895; see also G.B. Modi
v. Municipal Corporation of the City of Ahmedabad, A.I.R. 1971 S.C. 2100 where
a somewhat similar power was upheld. As slated earlier, the status or nature of
the authority to which the power is delegated may also be a factor for considera-
tion.
33. (1894) A.C. 347.
34. Ibid.
 1SO THE DRAFTING OF LAWS

view of tbis provision it was open to the Court to canvass their validity,
but the point was not actually decided as the rules were beld to be intra
vires. In R. v, Electricity CommissionersP Avory J. thought that had
the scheme reached the stage at which it took effect as if enacted in the Act,
its validity could not be questioned, but it had not reached that stage.
In the Municipal Corporation of Rangoon v, The Soorattee Bara Bazar
Co." it was felt that the usc of expressions like "not inconsistent with the
Act" in connection with the rules to be made would render practically
useless any such formula as was adopted in the English Act above referred
to. The House of Lords in Mtnister of Health v. The King l ? (on the
prosecution of Yaffe) had laid down that

while the provision of the Act makes the order made under the Act
speak as if it were contained in the Act, the Act in which it is
contained is the Act which empowers the making of the order and
therefore if the order as made conflicts with the Act it will have to
give way to the Act. In other words, if in the opinion of the Court
the order is inconsistent with the provisions of the Act which
authorises it, the order will be bad."

Thus. if the intention of the legislature by the formula is to give to

delegated legislation a finality equal to that of its own legislation, that
intention has been defeated by judicial interpretation."
In the words of Sir W. Graham-Harrison, the words" "as if enac-
ted in the Act" are' merely a survival, a common form, which may
originally have served a useful purpose, but which, in view of the decisions
of the courts, has long ceased to serve any purpose at all". He even went
~ so far as to observe that any suggestion that Parliament in framing such
--------
35. (1924) l.K.B. 171.
36 l.L.R. 5 Ran. 212, 218
37. (1931) A.C. 494.
38. See, however Willis, Parliamentary Powers of English Government Departments,
Pp. 81·82. State of Kerala v. Abdullah & c«, A.I.R. 1965 S.C. 1585, 1589.
39. Munna Lal v. H.R. Scott, A.I.R. 1955 Cal. 451, 456; The State v, Kunja Behari,
A.I.R. 1954 Pat. 371; Foster v. A/aile (1951) V.L.R. 481; Brojendra Kumar v. Union
of India, A.l.R. 1961 Cal. 217,223.
In Ravulu Subba Rao v. Commissioner of Income-tax, Madras, A.I.R. 1956
S.C. 604, 612, the Supreme Court followed the decision in Lockwood's case (supra
n-33) and held that the vires of a rule made under section 59 of the Indian Income-
lax Act, 1922, which provided that rules made under that section shall, when
made, have effect as if enacted in the Act, could not be qu .stioned. No reference
was, however, made in this case to the decision in Yaffe's case and it appears to
have been admitted in the Supreme Court decision that the rules Were within the
mandate conferred by the section. Further, in the words of the Supreme Court,
the rules in question merely sought to fill in details occupied by the Act. No
question of inconsistency therefore fell to be be considered and in the circumsta-
nces this decision would appear to be of no real help in the present context.
 SUBORDINATE OR DELEGATED LEGISLATION 151

a provision Parliament was intending to provide that the validity of the

rule should not be canvassed in the courts seems by its mere absurdity to
answer itself. to
The use of the expression "as if enacted in the Act" does not appear
to have been completely given up in the United Kingdom notwithstanding
the above observations. See for instance, section 85(2) of the Diseases
of Animals Act; 1950 (14 Geo. 6, c. 36); see also section 166(4) of the
Bankruptcy Act, 1949, Canada.
The above expression may perhaps be of some use in cases where an
Act confers a power on the executive to extend it to certain areas, _in
which event the extension of the Act, it could be argued, carries with it
the rules already made as part of the Act.
Where the rules concerned are in the original Schedule to an Act,
then they are part of the legislative enactment in every sense of the word
and in such a case the principle that applies is that the latter provision
shall be effective. Where, however, the provision in the rules has been
effected by a non-legislative body (such as a Board of Revenue) under a
rule-making power, the principle applicable is that by rule or regulation
you cannot affect the provision of an Act even though it is to be consi-
dered to be embodied in the Act and forming part of it. As a rule, it must
give way to the provisions in the Act. U
As instances of the delegation in the United Kingdom of a power to
modify the Act conferring the power, nine Acts passed between 1888
and 1929 are cited, the power being conferred
POWER TO MODIFY for the purpose of facilitating the bringing of the
STATUTES Act into operation and being in effect a power-
limited in duration to remove diffculties or
remedy defects in conditions subsisting at the initiation of the new
legislation. See for instance, section 51, Metropolis Water Act, 1902 (2
Ed. 7, c. 41), section 45, Unemployment Insurance Act, 1920 (10 & II
Geo. 5, c. 30), section 130, Local Government Act, 1929 (19 & 20 Geo.
5, c. 17). Instances of a wider power, that of amending other Acts than
the Act conferring the power, are quoted from section 6 of the Juries Act,
1922 (12 & 13 Geo. 5, c. 11), section 20 of the Mental Treatment Act,
1930 and section 76 Local Government (Scotland) Act, 1929 (19 & 20

40. Craies on Statue Law, sixth ed, pp. 309-310.

41. Union 0/ India v. Satyendra Nuth Banerjee, A.I.R. 1955 Cal. 581. In this case,
however, the court was able to reconcile the relevant provisions in the Act and the
rules.
There is some difficulty in construing the words "by or under" when used in
an Act with reference to matters prescribed. A thing may perhaps be said to be
prescribed "by" the Act when it is expressly provided in the Act; and "under"
the Act when it is provided for by a rule made under the Act, see Mllnibhai Govind-
bhai v. The Nadiad City Municipality, 51 Born. 105, //7.
 152 THB DRAFTING OF LAWS

Geo. 5. c. 25). which empowers the Secretary of State to make by order

"any adaptations or modifications of the provisions of any Act necessary
to bring those provisions into conformity with the provisions of this
Act. .... The Committee recognises" the. extreme convenience of provi-
sions of this kind "from the point of view of those charged with the duty
of bringing into effective operation a far-reaching measure of reform". and
admits that they are "a political instrument which must occasionally be
used", but recommends that they should never be used except for the
sole purpose of bringing an Act into operation and should be subject to
a time limit of one year from the passing of the Act.
Similar provisions appear in sections 293 and 311(5) of the Govern-
ment of India Act. 1935. section II (3) of the Indian Independence Act.
194'/, article 372 of the Constitution, section 54 of the Andhra State Act.
1953 (30 of 1953) and section 120 of the States Reorganisation Act, 1956
(37 of 1956). In almost all these cases a time limit is fixed within which
the power should be exercised. As pointed out by the Committee. the
conferment of such powers is necessary to cope with the tremendous
political .and other changes involved in the passing of such Acts. Such a
detegation is defensible on the ground that the administrative changes
involved are so great. that the measures are of such far-reaching charac-
ter or that the matters involved are so complicated that it would be im-
possible to foresee all possible contingencies and therefore a modifying
power is necessary for an initial period. Such a provision is generally
regarded as the draftsman's insurance policy to get over such difficulties.
Courts would. however, examine the power with some care to determine
its scope. For example, when article 372 of the Constitution provided
that for the purpose of bringing the provisions of any law in force in
India into accord with the Constitution, the President may, by order, make
such modifications and adaptations of such law, whether by way of repeal
or amendment, as may be necessary or expedient, the court had no
difficulty in holding that an adaptation plainly inconsistent with the Con-
stitution will be invalid, and any adaptation made by the President will
have to be construed as if the President had not intended to exceed his,
powers The words "that any such adaptation or modification shall not
be questioned in any court of law" occurring in the same article was held
not to prevent the court from going into the question whether the adap-
tation was inconsistent with the Constitution itself. U In doing so the
court followed the reasoning in Yaffe's case cited ante.

42. The Emergency Powers (Defence) Act, 1939(2 & 3 Goo. 6, c. 62), by section 1(2)
gave power by Defence Regulations. made by Order in Council, to-"provide for
amending any enactment, for suspending the operation of any enactment, and for
applying any enactment with or without modification".
43. Donoughrnore Committee Report, P. 59.
44. MtlHttd Lal v. H.R. Scott, A.I.R. 1955 Cal. 451.
 SUBORDlNATB OR DBLEGATED LBOISLA.nON 153

In many Acts, in addition to a power to adapt laws, a power to the

executive in the widest possible terms is conferred to make such orders as
the executive authority may think fit to remove diffi-
POWBR 1'0 culties in the transition from an old order of things to
REMOVE a new order. Section 9(1)(d) of the Indian Indepen-
DIFPlCULTIBS dence Act, 1947, for example, authorised the Governor-
. General to make provision for removing any difficulties
arising in connection with the transition from the Government of India
Act to the provisions of the new Act by means of orders made by him.
The Calcutta High Court observed in connection with the provision that
in view of the tremendous political changes taking place in India and
the responsibility placed on the Governor-General for piloting the transi-
tion, the relevant provisions should be given the widest possible construc-
tion. The court therefore held that section 9(1)(d) itself included a
power to adapt existing laws and further, when section 18(3) of that Act
expressly authorised the Governor-General to make the necessary adapta-
tions, such adaptations may include not only consequential adaptations
but also other adaptations. The power to adapt could also be exercised
from time to time within the period limited for the purpose, if any. iii
Other instances of the conferment of a power to remove difficulties are:
article 392 of the Constitution; section 7 of the Part B States Laws Act,
1954 (3 of 1951), which extended a very large number of Acts to the then
newly formed Part B States; section 69 of the Andhra State Act, 1953
(30 of 1953), under which a new State called Andhra Pradesh was creat-
ed; section 19, Chandernagore (Merger) Act, 1954 (36 of 1954) by which
the former French Territory of Chandernagore became merged in West
Bengal and section 128 of the States Reorganization Act, 1956 (37 of
1956), which re-drew the political map of India. The justification for the
conferment of such wide Dowers is apparent from the titles of the Acts
themselves, but it is a power which should not be taken except in excep-
tional cases. Its ambit being undefined, it is liable to abuse. For a forceful
criticism on the conferment of unlimited powers on the executive to re-
move difficulty, see Rex v, Minister 'of Health" where Lord Hewart to
whom perhaps this was a flagrant instance of the new despotism, delivered
himself in the following terms

The Minister of Health may by order remove the difficulty. The

imagination fails to contemplate at one view the extent and variety
of the power which is given to the Minister under those words. He
may by order remove the difficulty. He may cut the Gordion knot
in any way that seems best to him. He may declare any assess-

45. Roi Surendrll Natb v, Commissioner of Income-lox, W/ISI &ngal, A.I.R. 1955 Cal.
499.
48. (1927) 2 K.B. 229, 236.
IS4 THB DRAFTING OF LAWS

ment committee to be duly constituted; he may 'make any appoint-

ment or do aoy other thing which appears to him necessary or
expedient for securing the due preparation of the Jist or for bringing
the said provisions into operation'. The legislature not content
with arming the Minister with these remarkable and varied and far-
reaching powers, goes on to provide that 'any such order may
modify the provisions of this Act so far as may appear to the Minis-
ter necessary or expedient'. For what purpose? For carrying the
Act into effect? Not at all ... for carrying the order into effect. This
I think, though I say with some hesitation, may be regarded as
indicating the high water-mark of legislative provisions of this
character.

There is still a further power which is generally conferred on courts

in similar circumstances, whereby, notwithstanding that no provision or
insufficient provision is made for the
POWER TO COURTS TO CONSTRUB adaptation of laws, courts are enabled
ACTS IN SUCH A WAY AS TO to construe laws in such a manner
FACILITATE THEIR APPLICATION without affecting their substance as
may be necessary or appropriate in
order to facilitate the application of such laws. Such examples are to be
found in the Burma Laws Act, 1898; section 7, Merged States Laws Act.
1949; section SS Andhra State Act, 1953 (30 of 1953); section 121, States
Reorganisation Act, 1956 (37 of 1956). Paragraph 28 of the Adaptation
of Laws Order. 1950, however, somewhat unfortunately, adopted a slightly
different phraseology, whereby the courts were required to construe the
laws with all such adaptations as were necessary for the purpose of bring-
ing the law into accord with the Constitution and provided by way of
abuandant caution that if any question arose regarding the adaptations
with which the law was to be so construed, the question should be referred
to the appropriate Government, and the decision of the appropriate
Government was to be final. Such a provision was criticised in no mild
terms by the Calcutta High Court in Sunil Kumar Bose v, Chief Secretary
to the Government of West Bengal,n The court said that the President.
whose duty it was to make the adaptations, had thereby transferred his
responsibility to the courts, whose duty it was to interpret legislation
and not to make it. By this paragraph the court had been converted
into a legislative body and the proviso reduced the newly created legisla-
tive body to a position of subordination and inferiority to the executive.
In other words, the judiciary was converted into a legislature with limited
powers and the executive was converted into a judiciary whose decisions
were final. The immediate result of this decision was the disappearance of
the offending provision.

47. A.I.R. 1950Cal. 274.

 SUBORDINA1B OR DELBGATED LEGISLATION 155

In India, the power to extend Acts to a new territory "with such

restrictions and modifications" as the extending authority may think fit is
ODe frequently conferred. See the Scheduled
POWBR TO EXTEND ACTS Districts Act. 1874 (now repealed); section
WITH MODIFICATIONS 10, Burma Laws Act, 1898; section 7, Delhi
Laws Act, 1912; section 12, Ajmer-Merwara
(Extension of Laws) Act, 1947 (the two latter Acts have now been repealed
and re-enacted by the Union Territories (Laws) Act, 1950, see section 2);
section II, Chandernagore (Administration) Regulation, 1952. See also
the powers conferred by section 52A of the (repealed) Government of
India Act to modify the provisions of that Act itself in its application to
special areas and to modify Acts of the Central Legislature or of a local
Legislature in their application to such areas. Paragraph 12 of the Sixth
Schedule to the Constitution authorises the Governor of Assam to direct,
by notification, that an Act of Parliament or of the Assam Legislature
shall not apply to an autonomous district or region in the State of Assam
or shall apply to such district or region, subject to such exceptions or
modifications as he may think fit to make. Such a power, as has· already
been pointed out, does not contravene the prohibition against delegation
of essential legislative functions. An authorisation to apply an existing
law with modifications and exceptions to a new territory does not, how-
ever, carry with it a power to make any change in the policy underlying
the Act. But, subject thereto, there is no unconstitutionality in the delega-
tion of such a power. &I
The mere power to add to or alter the Schedules to an Act is, in the
opinion of the Committee, not abnormal, since the lines along which the
amendments should proceed would have been
POWER TO AMBND clearly indicated. For Indian instances of such a
SCHEDULES power, see section 8(2), Provident Funds Act,
1925; section 42(6), Reserve Bank of India Act,
1934; section 27, Minimum Wages Act, 1948; section 4, Employees
Provident Funds Act, 1952; section 641, Companies Act, 1956.

Parliamentary Control over Legislation: Practice in the United Kingdom

In England, the provision made in the past respecting the placing
of delegated legislation before Parliament varied considerably from Act
to Act. Some times no further direction was given. Some times it was
provided that the regulation etc. must be laid in draft for a certain period
or shall not operate until approved or shall operate only for a specified
period unless approved within that period, usually without prejudice to
the validity of any action taken under them while they awaited approval.
The Committee on Ministers' Powers recommended that a uniform pro-
cedure should be adopted in future, namely, that where regulations are

48. Ra JNarayan v. The Patna Administration. (1955) I S.C.R. 290.

156 THB DRAmNG OF LAWS

to be laid before Parliament witbout the necessity for an affirmative reso-

lution, they should be open to annulment but not modification by reso-
lution of either House within twenty-eight days on which the House had
sat, such conferment to be without prejudice- to the validity of any action
already taken under the regulation annulled. Section 246(3) of the Gov-
ernment of India Act, 1935, is an example of such a provision.
A Select Committee on Statutory Rules and Orders appointed by
the British Parliament, 'in a special report publisbed in October, 1944
(House of Commons Paper No. 113), drew attention to the anomalies in
the machinery of Parliamentary control and of rules publication. They
referred to

(I) the lack of uniformity in the periods for which rules, regula-
tions and orders have to be laid before Parliament and a similar
lack of uniformity in reckoning the various periods;
(2) the vagueness of the requirement that regulations should be laid
before Parliament as soon as may be after they are made;
(3) the absence of any principle for determining when the affirma-
tive resolution procedure and when the negative resolution
procedure should be adopted.

The Statutory Instruments Act, 1946, was passed as a result of this

report. So far as the third criticism is concerned, this Act leaves it to
the Act concerned to make the choice between the
THE STATUTORY adoption of the affirmative or negative procedure
INSTRUMENlS because that will depend upon the nature and type of
ACT, 1946 the Act concerned. Under that Act, where any
statutory instrument is required to be laid before
Pilrliament after being made, a copy of the instrument has to be laid
before each House of Parliament before it actually comes into operation.
An exception is, however, made in cases where instruments have to come
into operation before copies can be laid before Parliament (example, dur-
ing a recess), but in such cases notification of the fact and of the reasons
for not laying copies before Parliament beforehand must be given to the
two Houses. A standard period of 40 days is prescribed by section 5 as
the period within which action must be taken by way of negative resolu-
tion to annul the instrument. But that section does not apply to instru-
ments which are subject under the relevant Acts to the affirmative
resolution procedure. Section 6 applies to statutory instruments, of which
drafts have to be laid before Parliament; but the relevant Acts do not
prohibit the making of the instrument without the approval of Parliament.
In such cases the rules must be laid in the form of a draft for the standard
period of 40 days. Cases where instruments have to be subjected to the
affirmative resolution procedure have been left out of the scope of the
Act for the simple reason that such instruments will not be effective
 SUBORDINATB OR DBLBGATED LEGISLATION 157

without the affirmative resolution and until that event nothing can happen
under the instrument. II
This Act repealed the Rules Publication Act. 1893. and included
provisions with regard to the numbering. printing and publication of
instruments. In order to minimise the danger tbat a member of the
public may be convicted for contravening the provisions of an instrument,
the existence of which-he could have no means of knowing, this Act pro-
vides that in any proceeding against a person for an otTence consisting of
a contravention of a statutory instrument. it shall be a defence to prove
that the instrument bad not been issued by the Government publishers at
the date of the alleged contravention. If this is proved. the prosecution
will then have to rebut it by showing that reasonable steps bad been taken
to bring the purport of the instrument to the notice of the public generally
or of persons likely to be affected by it or of the person accused. &0
In India also the same lack of uniformity as was found in England
prevailed till recently. Some times tr.e rule-making clause required that
the rules should be laid in draft before the Legislature for
PRA<iTICE IN approval twith or without modification, and the rules
INDIA could not be issued until such a resolution was passed.
Some times the Act provided that every rule shall be laid
as soon as may be after it is made before the House of the People for a
period of one month and if before the expiration of that period the House
of the People made any modification in the rule or directed that the rule
shall not be made, the rule shall thereafter have effect only in the modified
form or be of no effect. as the case may be. An Act like the Estate Duty
Act. 1953, requires that rules under section 20 shall be laid in draft before
the House of the People for not less than fifteen days before the date of
their final publication. This presumably means that the rules merely lie
before Parliament in the form of a draft and no action is necessary on
the part of Government except to wait for the prescribed period to expire
for making the rules. In a large number of cases the rule-making section
contented itself by merely providing that all rules shall be laid before
Parliament as soon as may be after they are made. In the large majority

49. The Laying of Documents before Parliament (Interpretation) Act, 1948 (11 & 12
Goo. 6, c. 59) clarifies the meaning of the word "laying" in relation to the laying
of documents before Parliament, by stating that such laying shall be according to
the standing orders, directions etc. of the House.
SO. See C.K: AlIen, 'Statutory Instruments To day' il Law Quarterly Review, Pp, 490-
506 (1955); C.K. Allen, Law in the Making, 1951, p, 532; Cecil Carr, on Delegated
Legislation in Parliament; A Survey, p. 232; Parliamentary control of delegated
legislation, Public Law, p. 200 (1956); Legislative Supervision over Delegated
Legislation; U.K. and American Practice Compared, British Journal of Adminis-
trasiv Law, p, 103 (1956). For certain suggestions so as to secure that only matters
of administration are dealt with in delegated legislation and not matters of princi-
ple, see I.A.G. Griffith, Parliament, in the Legislative Process, 14 Modern Law
Review, PP. 279-296 and 425-436.
 158 THE DRAmNG OF LAWS

of cases, however, no provision was made for the laying of rules before
. Parliament at all.
Submission of rules to Parliament for the mere purpose of informing
it and so making the rules public is superfluous because a rule-making
power in India, when given, is almost invariably, whether the enabling Act
so stipulates or not, exercised by notification in the Official Gazette so that
publication is automatically secured. Further, under section 23 of the
General Clauses Act, rules which are made subject to the condition of
previous publication by the relevant Act have to be published in draft for
objections or suggestions from the public for a specified period, and the
Act places an obligation on the executive to consider the objections and
suggestions before finalising the rules for its promulgation. This procedure
has also the merit of securing sufficient pre-publicity to certain types of
rules.
So far as laying of rules before Parliament is concerned, the formula
LAYING OF RULES is now fairly well settled. The provision
FORMULA NOW which is invariably attached to the rule-
WELL SETTLED making section reads as follows
Every rule made under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament, while it is in
session for a total period of thirty days which may be comprised in
one session or in two or more successive sessions and if, before the
expiry of the session immediately following the session or successive
sessions aforesaid, both Houses agree in making any modification
in the rule, or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form or be
of no effect, as the case may be, so, however, that any such modifica-
tion or annulment shall be without prejudice to the validity of
anything previously done under that rule. &1
Rules which are outside the scope of the Act under which they are
made do not become valid merely because they have been laid before the
legislature. As observed by the Supreme
MERE LAYINO OF RULES Court," "We do not think that where an
BEFORE PARLIAMENT DOES executive autbority is given power to frame
NOT VALIDATE INVALID subordinate legislation within stated limits,
RULES rules made by such authority, if outside
the scope of the rule-making power, should
be deemed to be valid merely because such rules have been placed before
the legislature and are subject to such modifications, amendment or annul-
ment, as the case may be, as the legislature may think fit.

51. See also Chapter X.

52. Kerala State Electricity Board v. Indian Aluminium cs.. A.I.R. 1976S.C. 1031, 1046;
see also Hukum Chand v. Union of India, A.I.R. 1972S.C. 2427.
 SUBORDINATB OR DBLEGATED LEGlC;LATlON 159

Failure to lay the rules before Parliament may not invalidate them,
notwithstanding the use of the word "shall" in the relevant section. In
the United Kingdom, an Act of Indemnity
FAILURE TO LAY RULES BE- was passed in 1944 (The National Fire
PORE PARLIAMENT Service Regulation (Indemnity) Act, 1944
to indemnify the Home Secretary for his
failure to lay the said regulations before Parliament. In India, some of the
rules made by the Central Government under the Ail-IndIa Services Act,
1951, empowered that Government to make regulations in respect of
certain matters, but sub-section (2) of section 3 of that Act did not provide
for the laying of such regulations before Parliament. As, however, the
regulations formed an integral part of the rules, it was felt that they should
also have been laid before Parliament like the rules. As this had not been
done, Parliament passed an Act called the All-India Services Regulations
(Indemnity) Act, 1975 (19 of 1975) to indemnify the Central Government
aed its officers from any liability which may arise out of such failure,
say, to Parliament itself)
If Parliamentary control is to be effective much could be said
for the view that this provision is mandatory in charater and failure to
lay the rules should lead to certain specific consequences, although the
provision is silent on the subject. Courts and ted-book writers have
expressed contrary views on the subject." So far as India is con-
cerned. it has been held that in the case of a statute directing rules to
be laid before -Parliament or the State legislature without any condition
attached, the rule is only directory. Though the statute says that the rules
shall be laid before Parliament, as the provisions of the statute are couched
in the public interest, the dereliction of duty by the Minister or other
authority concerned in not following the procedure should not be made
to affect the members of the public governed by the rules. 54 In this case, the
available material on the subject was extensively examined. With respect,
this would seem to be the correct view because as the provision now stands,
the rules become effective once they are made; there is no period within
which they have to be laid before the Legislature, the phrase used in this
context being "as soon !H .nay be": the public governed by the rules have
already regulated their affairs in accordance therewith and it would be
unjust an I inequitable to h ild the n invalid, if at all, whether the date
chosen for that purpose is the date of promulgation of the rules or the
------------ -------------
53. Springer v. Doorly, (a decision of the West indies Court of Appeal) cited in 28
Canadian Bar Review; 1950; Bailey v. Williamson, (1878) L.R. Q.B. 118; Schwartz.
Law and Executive in Great Britain p. 110; Craies, Statute Law, 6th ed., p. 317; C.K.
Allen, Law and Order, pp. 108-112. 1955
S4. Krishnan v, Road Transport Authority, A.I.R_ 1956 Andhra 129; See also Dalmer
Singh v. State ofPepsu, A.I.R. 1955 Pepsu 97. Jan Mohamed v. The State of Gujarat
A.I.R. 1966 S.C. 385; Atlas Cycle Industries Ltd. v : Siale of Haryana, A.I.R. 1979
S.C. 1149.
160 THB DRAFTING OP LAWS

date on which the court finds them to be invalid because of non-complia-

nce with the statutory procedure.
Each House of Parliament has now a Committee whose function it
is to scrutinise and report to the House whether the power to make rules,
regulations, bye-Jaws etc., delegated by Parliament
PARLIAMENTARY to other authorities are being properly exercised
COMMITIEES ON . within the limits of such delegation. Citing rule
SUBORDINATE 320 of the Rules of the House of the People
LEGISLATION (Lok Sabha) in this context, the Committee is
required to consider whether
(a) the rules are in accord with the general objects of the Constitu-
tion or the Act pursuant to which they are made:
(b) they contain matter which in the opinion of the Committee
should more properly be dealt with in the Act itself;
(c) they impose any tax;
(d) they directly or indirectly bar the jurisdiction of courts;
(e) they give retrospective effect to any provision for which there is
no justification in the Act;
(f) they appear to make some unusual or unexpected usc of the
powers conferred by the Act pursuant to which they arc made;
and
(g) generally for any reason the form or purport of the rules calls
for elucidation.

As already pointed out, while introducing a BiIJ the draftsman has to

ensure that a memorandum explaining the scope or purport of the delega-
tion of legislative power, if any, provided for in
MEMORANDUM ON the Bill is attached to the Bill. This memoran-
DELEGATED dum has also to indicate whether the proposed
LEGISLATION delegation is of a normal or abnormal character,
so that even at the initial stage Parliament is made
aware of the power which it is delegating. This memorandum, which is
a requirement under another rule made by Parliament, is not intended to
bar the subsequent scrutiny by the Committee aforesaid and thus there is
a double check on delegated legislation. &6
The late Shri Mavlankar, a Speaker of the House, in an address to
this Committee stated that the Members of the Committee are the only
protectors of the people against the new despotism getting aggresive.
Therefore they have to direct the rule-making power in proper channels.
The Committee, in his opinion, was not conceived in any sense as an

55. Perhaps a committee on Bills to scrutinise them in the light of this memorandum
may enable Parliament to lock the stables before the horses bolt. But exigencies
of administration may rule out such a procedure. There is also the fact that
subsequent examination of the rules actually made i' not to, be ruled out thereby.
 SUBOaDINATB OR DBLBGATBD LEOIBLATION 161

opposition to the executive Government or to the administration, but as a

body of persons who are in touch with the people and, not being
concerned in the a ctual administration, are capable of taking independent
and detached views.
There have been several reports of these Committees and they should
be of great interest to the draftsman. The procedure adopted by the
Committee is to examine each set of rules placed before Parliament and
where it felt thai the executive might have transgressed the limits of the
powers delegated to them, it would formulate questions for answer and
also examine the representatives of the Ministry concerned, if necessary.
The recommendations of the Committee are intended to strengthen Parlia-
mentary control over subordinate legislation. For instance, it has been
stressed that when a rule making power is conferred, the power should be
exercised not later than six months from the coming into force of the Act;
that rules made should be laid before Parliament within two days of their
making if Parliament is in session; that the memorandum attached to a
Bill explaining the proposals for delegated legislation should be so drawn
as to be of real help to the Committee to understand how the power is
to be exercised; that a rule-making power should not be so exercised as to
include a substantive provision like barring jurisdiction of courts in
respect of any specified matter, and that if such a provision is needed it
should find a place in the Act itself; that provisions for cognisance of
offences by courts are pre-eminently matters for the Act itself and not for
rules thereunder; that rules should not be framed so as to cause injustice;
that where rules are made under various Acts in regard to matters more
or less similar, a certain amount of uniformity is observed; tbat fees
charged under rules should not be excessive; that, where a power to
exempt any article from duty is taken under a delegated authority, any
exemption granted should immediately be communicated to Parliament;
that, where disciplinary power over subordinates is taken, a definite pro-
cedure for its exercise should be laid down; that, where a delegate is given
wide powers to sub-delegate its authority to another functionary suitable
safe-guards should be laid down; that the authority under which the rule-
making power is exercised should be specifically cited in the preamble to
the rule for the purpose of enabling all concerned to know under what
precise authority the rule has been made; tbat rules should be serially
numbered and published in a proper part and section of the Gazette of
India; that rules of importance to the general public sbould be published
both at the Centre and in the States, simultaneously, if possible; that,
whenever rules made under an Act are laid on the Table of the House, a
statement of objects and reasons and also a statement containing explana-
tory notes should be appended thereto."

55. Both in England and U.S.A., administrative agencies issue rules to clarify statutory
provisions. This is done in addition to their powerof delegated legislation i.e,
162 THE DRAPTING OF LAWS

The recommendations are many and far reaching in character and

DO attempt has been made above to make an exhaustive list thereof.
Suffice it to say that the Indian Parliament through its committees keeltS
a vigilant eye on subotcriDllte legislation to ensure that rules made are not
in....excess of the power iven that they are not unusual in character, that
o not ID any way violate the principles of natural justice and that
theido not work any hardship on the public and so on.

The proposal made by the Committee on Ministers' Powers in the

United Kingdom for improving the drafting of delegated legislation by
utilising the office of the Parliamentary Counsel was
DRAFTING OF to a very large extent anticipated in India. Rules
SUBORDINATE under an Act.are no doubt P!~pared by the department
LEGISLATION concerned withthe administration of the Act, but they
are invariably submitted "before they are made or
published as a prelimnary to being made, for examination by the Legisla-
tive Section of the Ministry of Law. The Ministry of Law is concerned to
see that the rules proposed to be made are correctly drawn and are within
the limits of the power conferred. "

The power to sub-delegate must be expressly or impliedly authorised

by the enabling Act. It is, however, not necessary
SUB-DELEGATION for the purposes of this book to go deeper into the
subject.

power to issue legally binding regulations conferred upon them by statute. Inter-
pretative regulations of this type are, in the strict legal sense, not binding on any
one, the reason being that the statute itself and the regulations thereunder consti-
tute the sole criterion of what the law authorises and compels or what it forbids.
This however is theory. In practice, the interpreting regulations assume an
effect similar to the statutory regulations. As stated by Schwartz, administrative
interpretations are in most cases accepted as final. Those affected will conform
to them for they serve as the guide to administrative action. In America
indeed they tend to acquire al1 but statutory effect because of the great deference
which the courts normatly pay to them, where the governing legislation is not
whotly clear. Amrican Administrative Law, 54 (1962). Administrative interpretation
of law is of no less significance than administrative rule-making. The practice is
also widely prevalent in India but there has not been much discussion on this
aspect of the matter. In Oudll Sugar Mills v, State of M.P. A.I.R 1975 M.P. 125,
the High Court pointed out that the interpretation put by the Government for a
considerable length of time would have some value; it may be considered as a
relevant matter or an effective guide to a proper interpretation of the statutory
provision, but it is not conclusive or binding on the courts.
In Munnalal Jain v, The State 01 Assam, A.f.R. 1962 S.C. 386 the wisdom of
issuing executive instructions in matters governed by law was doubted as instruc-
tions cannot obviously override the law; see also Banarsi Dass v. Cane Commis-
sioner, U.P. A.I.R. 1956 AI1. 725; BrlJnantian Prasad v, State of Bihar, A.I.R. 1955
Pat. 353.
 SUBORDINATB OR DBLBGATBD LEGISLATION 163

BIBLIOGRAPHY

Cecil T. Carr, .De/egated Legls/ation, 1921.

W.A. Robson, Justice and .4dminist,ative Law.
Hewart, New Despotism.
Donoughmore, Committee on Ministers' Powers, 1932.
Thring, Practical Legislation,
Herbert Morrison, Government and Parliament.
C.K. Allen, Law and Order.
Craies, Statute Law.
Willis, The Parliamentary Powers of English Government Departments.
M.P. Jain, 'Parliamentary Control of Delegated Legislation in India,'
Public Law 33, /964; FitzGerald, Safeguards in Delegated Legisla-
tion, 27 Canadian Bar Review, 550;
Griffith, Delegated Legislation-Some Recent Developments, J2 Modern
Law Review, 297 (1948).
Wade and Phillips, Constitutional Law.
Schwartz, Law and Executive in Great Britain.