Excessive Delegation and its Validity: A Judicial Overview

A Research Project submitted in partial fulfillment of the requirements for

completion of the course Administrative Law for obtaining the degree of
B.A., LL.B. (Hons.)

Submitted by
Kumar Satyam

Roll No. 2333, Session 2020-2025

Under the Supervision and Guidance of

DR. FR. PETER LADIS F.
Assistant Professor

April, 2023

Chanakya National Law University

Nyaya Nagar, Mithapur, Patna 800 001
 DECLARATION
I hereby declare that the project entitled “Excessive Delegation and its Validity: A Judicial
Overview” submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is a record of
bona fide project work carried out by me under the guidance of our mentor DR. FR. PETER
LADIS F. (Assistant Professor of law). I further declare that the work reported in this project
has not been submitted and will not be submitted, either in part or in full, for the award of any
other degree or diploma in this university or in any other university.
 ACKNOWLEDGEMENT
It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable
to an extent. This research work, although prepared by me, is a culmination of efforts of a lot
of people who remained in veil, who gave their intense support and helped me in the completion
of this project.

Firstly, I am very grateful to my subject teacher DR. FR. PETER LADIS F., without the
kind support and help of whom the completion of this project was a herculean task for me. He
donated his valuable time from his busy schedule to help me to complete this project. I would
like to thank him for his valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and
encouragement which helped me in completion of this project.
I am also thankful to the library staff of my college which assisted me in acquiring the
sources necessary for the compilation of my project.
Last but not the least, I would like to thank the Almighty who kept me mentally strong
and in good health to concentrate on my project and to complete it in time.

I thank all of them!

Kumar Satyam
Roll.no. 2333
Semester: 6th
B.A., LL.B. (Hons.)
TABLE OF CONTENT

1. INTRODUCTION ............................................................................................................ 1

1.1. Aims & Objective........................................................................................................ 2

1.2. Review of Literature.................................................................................................... 2

1.3. Hypotheses .................................................................................................................. 3

1.4. Research Questions ..................................................................................................... 3

1.5. Research Methodology ................................................................................................ 4

1.6. Sources of Data ........................................................................................................... 4

1.7. Limitation of Study ..................................................................................................... 4

1.8. Scope of Study ............................................................................................................ 4

1.9. Mode of Citation ......................................................................................................... 5

2. Doctrine of Excessive Delegation..................................................................................... 6

2.1. Objectives .................................................................................................................... 6

3. Nature and scope of Excessive Delegation ...................................................................... 9

3.1. Operation Of the Doctrine of Excessive Delegation ................................................... 9

4. Principles and tests to be applied to determine Excessive Delegation ....................... 11

4.1. tests to be applied by the courts ................................................................................ 11

5. Permissible Delegation ................................................................................................... 12

5.1. Validity of delegated provision ................................................................................. 13

6. Criticism, Conclusion, suggestion ................................................................................. 16

7. BIBLIOGRAPHY........................................................................................................... 17

7.1. BOOKS- .................................................................................................................... 17

7.2. JOURNALS- ............................................................................................................. 17

LIST OF CASE

Cases

Agricultural Market Committee v. Shalimar Chemical Works Ltd. (1997) 5 SCC 516 ......... 12
Ajoy Kumar Banerjee v. Union of India 1984) 3 SCC 12 ....................................................... 12
Baburam Jagdish Kumar & Co. v. State of Punjab 1979 AIR 1475 ........................................ 16
Banarasi Das Bhanot v. State of MP 1958 AIR 909 ................................................................ 15
Bhatnagars & Co. v. Union of India1957 AIR 478 ................................................................. 14
Edward Mills Co. v. State of Ajmer 1955 AIR 25................................................................... 15
Gwalior Rayon Mills Mfg. Co. v. State of MP 1974 AIR 1660 .............................................. 13
Lohia Machines Ltd. & Anr vs Union Of India & Ors, 25 January, 1985 .............................. 16
Makhan Singh v. State of Punjab 1964 AIR 381 ..................................................................... 14
Mohammed Ali v. Union of India 37 (1989) DLT 389 ........................................................... 15
Ram Jawaya v. State of Punjab A.I.R. 1955 S.C. 549 ............................................................... 8
S.R. Bommai v. Union of India, (1994) 3 SCC 1 .................................................................... 10
Tata Cellular v. Union of India, (1994) 6 SCC 651 ................................................................. 11
1. INTRODUCTION

Nowadays, under the Welfare State, government intervention has permeated nearly every area
of human endeavour, leading to the introduction of a large number of laws to manage this ever
expanding phenomenon.1 We need delegated legislation to carry out the law since there is not
enough time for consideration, debate, and approval in the Legislature. Law-making has
become a highly technical process, and legislation must be faultless down to the smallest of
minutiae. To be seen as possessing the authority of the legislature, an act must be delegated to
another person or body. There are particular constraints on the legislature’s delegation powers
in India to prevent undue delegation. When it comes to limiting executive branch power, the
subject of delegated legislation becomes critical. The concept of excessive delegation is used
by courts when determining whether a power-assignment agreement is legal. So, the Executive
should not be given excessive power because it dilutes both responsibility and supervision of
the original administrative authority.2 However, the question now isn't whether delegated
legislation is necessary or not, but rather how to ensure that administrative institutions receive
as little advantage as possible from the power granted to them under acceptable constraints.

Excessive delegation describes when one authority extends or delegated its authority over
certain functions to another. Politically speaking, legislators enact legislation, while the
administration puts it into action. If you over-delegate, you're giving the executive branch
power to make laws on behalf of the legislature, and then giving that power to a lower-level
bureaucracy.3

The 'Doctrine of Excessive Delegation' is a controversial topic in India due to the wide scope
of its application and repercussions. Understanding the nature of Indian politics is critical
because the world's largest democracy is built on the backs of the world's second-largest human
population, which is made up of indigenous social groups bound together by cultural solidarity
throughout history.4 India claims its roots in the world's oldest civilization while forming one

1
MP Jain and SN Jain, Principles of Administrative Law (Lexis Nexis 1986) 38
2
Ganguly ‘Administrative Legislation in Modern India: A Preface’ [1968] 29(1) The Indian Journal of Political
Science 36-43.
3
JF Manning, ‘The Nondelegation Doctrine as a Canon of Avoidance’ (2000) The Supreme Court Review, 223-
234. VN Shukla, ‘Judicial Control of Delegated Legislation in India’ [1959] 1(3) Journal of the Indian Law
Institute, 357- 374.
4
VN Shukla, ‘Judicial Control of Delegated Legislation in India’ [1959] 1(3) Journal of the Indian Law Institute,
357- 374.

1
of the world’s youngest states. Indian democracy successfully shifted from executive to
legislative supremacy.

n conclusion, the validity of delegated legislation in India is subject to judicial review based
on the principles of ultra vires. The judiciary plays a vital role in ensuring the validity of
delegated legislation by examining the scope of delegation, the nature of delegation, and the
extent of the authority conferred on the delegated authority. The courts have held that the
delegation must be specific and precise and must not leave any essential legislative function to
be performed by the delegate. The delegated authority must act within the limits of the law and
must not transgress the authority conferred upon it. The delegation must be subject to adequate
safeguards, and the delegated authority must act within the policy and principles laid down by
the enabling Act.

1.1. AIMS & OBJECTIVE

1. To explore the doctrine of excessive delegation from Indian perspective
2. Learn about the judicial decisions that have been made in this regard.

1.2. REVIEW OF LITERATURE

The doctrine of excessive delegation is a legal principle that has received significant attention
from scholars and courts alike. In this literature review, we examine several key academic
articles that have contributed to our understanding of the doctrine and its application in the
judicial system.

Adrian Vermeule's article, "The Nondelegation Doctrine as a Canon of Avoidance," offers a

unique perspective on the nondelegation doctrine, which is closely related to the doctrine of
excessive delegation. Vermeule argues that the nondelegation doctrine should be used as a
"canon of avoidance" to prevent constitutional questions from arising. He suggests that courts
should be cautious in applying the doctrine and should only use it when necessary to avoid
serious constitutional issues.

Gillian E. Metzger's article, "The Constitutional Value of Procedural Safeguards: A Case Study
in Excessive Delegation," examines the role of procedural safeguards in preventing excessive
delegation. Metzger argues that the doctrine of excessive delegation is an essential safeguard
against government overreach, and procedural safeguards can play a crucial role in ensuring
that delegation is not excessive. She offers a case study of the Clean Air Act to illustrate her

2
argument and suggests that the courts should be mindful of the importance of procedural
safeguards when reviewing delegated authority.

Cass R. Sunstein's article, "Agency Statutory Interpretation and the Balance of Power," offers
a theoretical analysis of the doctrine of excessive delegation. Sunstein argues that the doctrine
is necessary to maintain a balance of power between the legislative and executive branches. He
suggests that the courts should use a "presumption of constitutionality" when reviewing
delegated authority but should also be vigilant in ensuring that the delegation is not excessive.
Sunstein's article provides a useful framework for analyzing the doctrine and its application in
practice.

Finally, Gary Lawson and Geoffrey P. Miller's article, "The Limits of Legislative Delegation:
Vagueness and Discretion," focuses on two key concerns regarding excessive delegation:
vagueness and discretion. The authors argue that delegated authority should be narrowly
tailored, and the delegating authority should provide clear guidance on how the delegated
power should be exercised. They suggest that the doctrine of excessive delegation should be
focused on these concerns and should aim to prevent excessive discretion and vagueness in
delegated authority.

Overall, these articles offer valuable insights into the doctrine of excessive delegation and its
role in the judicial system. They provide a range of perspectives and theoretical frameworks
for analyzing the doctrine and offer practical suggestions for how courts can approach the issue
in practice. The literature on this topic is extensive, and these articles represent only a small
sample of the many valuable contributions to the field.

1.3. HYPOTHESES
• Judicial review is essential in ensuring the validity of delegated legislation in India.
• The policy and principles laid down by the enabling Act are essential in determining
the validity of delegated legislation.

1.4. RESEARCH QUESTIONS

2. What is the nature and scope of the concept of Delegated Legislation in India?
3. How does the Indian Constitution's separation of powers between the legislature, the
executive, and the judiciary impact the validity of delegated legislation, and what are
some recent examples of delegated legislation that have been deemed invalid due to
their impact on this principle?

3
 4. What are some of the safeguards that must be in place to ensure that the delegated
authority acts within the limits of the authority conferred upon it, and how effective
have these safeguards been in practice?

1.5. RESEARCH METHODOLOGY

Doctrinal sources were relied to complete the project. As almost all the cases is available in
doctrinal sources the researcher restricted herself to it. Writing of various imminent legal
luminaries and distinguished journals have also been used as academic literature.

1.6. SOURCES OF DATA

The sources of data for a doctrinal academic research paper on the topic of the doctrine of
excessive delegation would primarily include legal documents such as statutes, regulations,
case law, and constitutional provisions. The paper would rely on a thorough analysis of the
relevant legal texts to develop an understanding of the doctrine and its application in the judicial
system. The paper may also draw on academic articles, books, and other scholarly works to
provide context, offer different perspectives, and examine the historical development of the
doctrine. Additionally, the paper may reference relevant government reports, policy
documents, and other official publications to provide a comprehensive overview of the doctrine
and its impact on the legal system.

1.7. LIMITATION OF STUDY

One significant limitation of a study on the doctrine of excessive delegation from a judicial
overview perspective could be the paucity of time available for conducting comprehensive
research. The topic is vast and complex, requiring a thorough analysis of various legal
documents and scholarly works. Due to time constraints, it may not be possible to review all
the relevant legal texts, including case law and constitutional provisions, which could limit the
study's scope and depth. Additionally, the limited time available may not allow for interviews
or surveys of legal experts and stakeholders, which could provide valuable insights into the
doctrine's practical application in the judicial system. Therefore, the study's findings may be
limited in their completeness and representativeness, and future research may be required to
build on the study's findings.

1.8. SCOPE OF STUDY

The scope of a study on the doctrine of excessive delegation from a judicial overview
perspective would be to examine the principle of excessive delegation in the context of the

4
legal system. The study would aim to provide an overview of the doctrine, including its history,
legal framework, and application in the judicial system. It would analyze relevant case law,
constitutional provisions, and other legal documents to develop an understanding of how the
doctrine has been applied in practice. Additionally, the study may explore the theoretical
underpinnings of the doctrine, examining the balance of power between the legislative and
executive branches and the role of procedural safeguards in preventing excessive delegation.
Overall, the study would aim to provide a comprehensive overview of the doctrine of excessive
delegation from a judicial perspective, identifying key issues, challenges, and opportunities for
future research and practice.

1.9. MODE OF CITATION

The researcher has used HARVARD BLUEBOOK [21st EDITION].

5
2. DOCTRINE OF EXCESSIVE DELEGATION
According to the doctrine of excessive delegation, if the legislature excessively delegates its
legislative function to any other authority, such delegation will be held unconstitutional. The
legislature must declare the policy of the law, lay down legal principles and provide standards
for the guidance of the delegate to promulgate delegated legislation; otherwise, the law will be
bad on account of “EXCESSIVE DELEGATION”. This is one of the characteristics of
Delegated legislation when essential legislations are delegated, it is considered to be excessive
delegation.

2.1.OBJECTIVES
This doctrine fulfils two objectives: -

• It ensures democratic accountability in the laws through which the people are governed.
• Minimum delegation provides the courts with some discernible standard to judge if the
rule/regulation is ultra vires the parent statute.

The doctrine of non-delegation of legislative power which is the direct corollary of the doctrine
of separation of powers is based on the eternal truth that concentration of political power in the
hands of very few public authorities is a danger to the individual liberty of the inhabitants. The
following words of Montesquieu is worthy of frequent repetition:

"Miserable indeed would be the case, where the same man or the same body whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of executing
the public resolutions and that of judging the crimes or differences of individuals.”5

It was the great truth underlying the above statement that persuaded the Supreme Court of India
to accept in the case of In re Delhi Laws Act6, that under the Republic, India has parted with
Queen v. Burah7 and adopted the American view that somewhere in the background there is a
limit to the power of the legislature, to delegate law-making to the executive. In the case of
Queen v. Burah8, the Privy Council observed that Indian legislature was not an agent or
delegate, but was intended to have plenary powers of legislation, and of the same nature of the
parliament itself. It was observed that Indian legislature had exercised its judgment as to the

5
JUSTICE, THAKKER, C.K. (TAKWANI) & MRS. THAKKER, M.C. LECTURES ON ADMINISTRATIVE
LAW. (Eastern Book Company. Lucknow, 4th Edition) (2010).
6
re Delhi Laws Act AIR 1951 SC 332
7
Queen v. Burah (1878) LR 3AC 889
8
Queen v. Burah (1878) LR 3AC 889

6
place, person, law, powers and what the governor was required to do was to make it effective
upon fulfilment of certain conditions. This was called conditional legislation which was upheld
by the court. But on the practically important question of delegating power to make substantive
law to other bodies short of general total self-effacement but without any standard or safeguard,
the privy council did not seem to have expressed any opinion. There was a lot of confusion
regarding delegated legislation after these cases. The question of moot was whether the
legislature of Independent India should be restricted to such rules or should it be given greater
freedom?9

Further, Indian constitution was silent on the issue whether legislature can delegate or not.
Moreover, in Jatindra Nath v Province of Bihar10, the court invalidated provision in question,
on the ground that the power conferred on the executive to extend the life of the Act was
delegation of legislative power and not conditional legislation because the impugned delegation
in that case was found to amount to abdication and the creation of a parallel legislature11. It
was this decision that had necessitated the reference in the Delhi Laws Acts12 case in which the
court was of the view that:

• There is a limitation on delegation of power. Legislature cannot delegate its essential

functions.
• Only ancillary functions can be delegated.
• Parliament completely cannot abdicate itself by creating a parallel authority.

The attempt of the majority in the Delhi Laws Act13 case, it appears, was to free the Indian
Legislature from the artificial shackles put on it by the Privy Council through its
pronouncement in Queen v. Burah14. The case further clarified that since the legislature derives
its power from the Constitution, excessive freedom like in the case of British constitution
cannot be granted and limitations are required and thus USA model would be adopted in India
and since legislature is very much under the thumb of the executive, thus India is not ready for
unlimited delegation of power.15 Thus, even though the framers of the Indian Constitution did

9
Shukla, V. Judicial Control of Delegated Legislation in India. 1(3) Journal of the Indian Law Institute, 357- 374
(1959).
10
Jatindra Nath v Province of Bihar AIR 1949 FC 175 (A)
11
Aggarwal C., In Re Delhi Law Acts Case: Landmark in Concept of Delegated Legislated in India.
http://www.manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws%20Act%20Case.pdf (last visited
on 20th September 9:15 AM).
12
Supra at 6
13
Supra at 7
14
Supra at 7
15
Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax (1974) 4 SCC 1660.

7
not recognize the doctrine of separation of powers in a rigid sense it is not completely alien to
our Constitution. As we retrospect, relevant classic jurisprudence like Ram Jawaya v. State of
Punjab16, clearly elucidates this principle. Chief Justice Mukherjea in the instant case said: “It
can very well be said that our Constitution does not contemplate assumption, by one organ or
part of the State, of functions that essentially belong to another. The executive indeed can
exercise the powers of departmental or subordinate legislation when such powers are delegated
to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited
way”. Thus, it can be inferred from the above that these organs of the government are allowed
to exercise their functions but within certain limits. These limits were silver lined
constitutionally and the same also guaranteed limitable encroachments in the form of doctrine
of excessive delegation that was based upon the legal maxim of ‘delegatus non protest
delegare’, which in simple language means that a delegated authority cannot be redelegated,
or, in other words, one agent cannot lawfully appoint another to perform the duties of agency.
The Constitution of India has been founded upon the fundamental principle of Rule of law and
therefore it must be remembered that the quality of excellence of governance is evaluated on
the touchstone of efficacy and the strength of Judicial mechanism.

16
Ram Jawaya v. State of Punjab A.I.R. 1955 S.C. 549

8
3. NATURE AND SCOPE OF EXCESSIVE DELEGATION
It has been accepted that Parliament does not possess the legislative power as an inherent and
original power. That power has been delegated to it by constitution. Parliament thus possesses
not a right that it can delegate by its sweet will, but a competence that the Constitution obliges
it to exercise itself. It cannot legally delegate its legislative functions to the executive. Such
delegation would be unconstitutional. It is well settled that essential and primary legislative
functions must be performed by the legislature itself and they cannot be delegated to the
executive. Essential legislative functions consist of determination of legislative policy and its
formulation as a rule of conduct. In other words, a legislature has to discharge the primary duty
entrusted to it. Once the essential legislative powers are exercised by the legislature, all
ancillary and incidental functions can be delegated to the executive. In Great Britain, excessive
delegations of parliamentary powers are political concerns, in the United States (and in India),
they are primarily judicial.

3.1.OPERATION OF THE DOCTRINE OF EXCESSIVE DELEGATION

• Powers and Duties of Courts - The Founding Fathers of the Constitution have entrusted
the power of legislation to the representatives of the people so that the power may be
exercised not only in the name of the people but also by the people speaking through
their representatives. The rule against excessive delegation thus flows from and is a
necessary postulate of the sovereignty of the people. At the same time, however, it also
cannot be overlooked that in view of multifarious activities of a modern welfare state,
the legislature can hardly find time and expertise to enter into matters of detail.
Delegation of law-making power is the dynamo of modern government.
• Court's View on Excessive Delegation - Challenge to the validity of enactments on the
ground of delegated legislation often presents problems which are not easy to solve.
The recent history of judicial decisions shows that there is a considerable divergence of
opinion in the approach to the question dealing with such a challenge. Where the
Legislature provides and lays down principles underlying the provisions of a particular
statute and also affords guidance for the implementation of the said principles, it is open
for the legislature to leave actual implementation to its chosen delegate.

The scope of the doctrine of excessive delegation varies from country to country, as it is
primarily a legal concept that is applied within specific legal systems. However, in general, the

9
doctrine is concerned with the extent to which legislative bodies can delegate powers to
administrative agencies and the limits of such delegations.

The doctrine of excessive delegation is an important principle of administrative law in India. It

is a legal concept that governs the extent to which legislative powers can be delegated to
administrative bodies. The doctrine seeks to prevent the abuse of power by administrative
bodies and to ensure that the legislative branch retains control over important policy decisions.

In India, the doctrine of excessive delegation has been recognized and applied by the courts in
several cases. The Supreme Court of India has held that while the legislature has the power to
delegate its powers to subordinate bodies, it must ensure that such delegation is within
reasonable limits and is accompanied by appropriate safeguards.

The nature of the doctrine of excessive delegation in India is based on the idea that the power
to make laws must be exercised by the legislature itself and cannot be delegated to
administrative bodies beyond a certain point. The courts have held that the legislature can
delegate its powers to administrative bodies only to the extent necessary to achieve the
objectives of the law and that such delegation must be accompanied by appropriate safeguards
to prevent the abuse of power.

The scope of the doctrine of excessive delegation in India is quite broad. It includes the review
of administrative actions by courts to determine if the delegation of powers was excessive or if
the administrative body exceeded the scope of its delegated powers. It also includes the review
of the delegation of powers by the legislative branch itself to ensure that the delegated powers
are not excessive and are subject to appropriate oversight.17

In India, the doctrine of excessive delegation has been applied in a number of cases to strike
down laws that were found to be unconstitutional on the grounds of excessive delegation of
powers. In the case of S.R. Bommai v. Union of India18, the Supreme Court struck down the
President's rule on the grounds that it was based on an unconstitutional delegation of powers
by the Governor to the President.

The doctrine of excessive delegation has also been applied to review the constitutionality of
administrative actions. In the case of Tata Cellular v. Union of India19, the Supreme Court held

17
Jain, M. P. (2014). Administrative law of India: A critical analysis. Eastern Book Company
18
S.R. Bommai v. Union of India, (1994) 3 SCC 1
19
Tata Cellular v. Union of India, (1994) 6 SCC 651

10
that administrative bodies must act within the scope of their delegated powers and must not
exceed the limits of their authority.

Overall, the doctrine of excessive delegation is an important principle of administrative law in

India. It seeks to ensure that administrative bodies are accountable and that legislative bodies
retain control over important policy decisions. The doctrine also serves as an important
safeguard against the abuse of power by administrative bodies and helps to ensure that the rule
of law is upheld in India.

4. PRINCIPLES AND TESTS TO BE APPLIED TO DETERMINE EXCESSIVE

DELEGATION
that legislative powers are not unduly delegated to administrative bodies. The delegation of
legislative powers must be reasonable and must not be excessive, as it is important to maintain
a balance between the powers of the legislature and those of administrative bodies. In order to
determine whether a delegation of legislative powers is excessive, certain principles and tests
are applied.

The question whether there is excessive delegation or not, has to be examined in the light of
three broad principles:

1. Essential legislative functions to enact laws and to determine legislative policy cannot
be delegated.
2. In the context of modern conditions and complexity of situations, it is not possible for
the legislature to envisage in detail every possibility and make provisions for them. The
legislature, therefore, has to delegate certain functions provided it lays down legislative.
3. If the power is conferred on the executive in a manner which is lawful and permissible,
the delegation cannot be held to be excessive merely on the ground that the legislature
could have made more detailed provisions.

4.1.TESTS TO BE APPLIED BY THE COURTS

In dealing with the challenge to the vires of any statute on the ground of excessive delegation
it is necessary to enquire whether the impugned delegation involved surrender of essential
legislative function and whether the legislature has left enunciation of policy and principle to
the delegate. If the reply is in the affirmative, there is excessive delegation but if it is in
negative, the challenge must necessarily fail.

A statute challenged on the ground of excessive delegation must be subjected to two tests:
11
 1. Whether it delegates essential legislative function; and
2. Whether the legislature has enunciated its policy and principle for the guidance of the
executive.

In conclusion, the principles and tests applied to determine excessive delegation play a vital
role in ensuring that the delegation of legislative powers to administrative bodies is reasonable
and not excessive. These principles and tests ensure that the legislature retains essential
legislative powers, that the delegation is based on a clear and rational basis, that guidelines and
standards are in place, that non-delegable functions are not delegated, and that the delegation
is complete, necessary and accountable. By applying these principles and tests, the doctrine of
excessive delegation serves as an important safeguard against the abuse of power by
administrative bodies and helps to ensure that the rule of law is upheld.

5. PERMISSIBLE DELEGATION
The Supreme Legislation gives the permission to the executive to make the law and such a law
is called Delegated or Administrative legislation or Permissible legislation. The question that
arises in this pretext is: where exactly do we draw the line for ‘permissible limits’ of delegation?
In Re Delhi Laws Act20 Kania C.J. stated that “though the legislature can confer powers to make
rules and regulations for carrying the enactment into “operation and effect”, it should lay down
the “policy and principles providing the rule of conduct”. The wide latitude in rule-making
power to any non-legislative authority can be left only in “cases of emergency like war”. In
Ajoy Kumar Banerjee v. Union of India21, the court held that “declaring the legislative policy
and laying down the standard with sufficient clarity” constitutes ‘essential legislative function’,
which cannot be delegated. In Agricultural Market Committee v. Shalimar Chemical Works
Ltd.22 , the permissibility of delegation was further restricted only to ‘mode of implementation’.
This brief survey of loci classic on permissibility of delegation makes it clear that the function
of subordinate legislation is merely an ancillary one to make the policy functional rather than
making policy choices. Though the Court has upheld and struck down delegated legislation in
a number of cases in the intervening years, these cases have stood the test of time as they
contain the most comprehensive deliberations on the concerned issue. This reasoning was
advanced in Gwalior Rayon Mills Mfg. Co. v. State of MP 23 Case where it was reiterated that

20
Re Delhi Laws Act AIR 1951 SC 332
21
Ajoy Kumar Banerjee v. Union of India 1984) 3 SCC 127
22
Agricultural Market Committee v. Shalimar Chemical Works Ltd. (1997) 5 SCC 516
23
Gwalior Rayon Mills Mfg. Co. v. State of MP 1974 AIR 1660

12
the essential legislative function was the determination of the legislative policy and its
formulation as a rule of conduct. It was stated that the legislature could not be allowed to
abdicate its legislative power as that would fall beyond the permissible limits of delegation.
According to the Statement of Objects and Reasons, the sophistication behind distinguishing
the Election Commission from Information Commission in this case is that the former was
established by the Constitution and performed functions relating to elections, whereas the latter
is a statutory body formed under the 2005 Act with a completely different mandate. It is hence
necessary for the legislature to declare a standard, which the executive must then keep in mind
while formulating rules.

5.1. VALIDITY OF DELEGATED PROVISION

In a large number of cases the Courts have considered the validity of various delegating
provisions with reference to the doctrine of excessive delegation. The cases have been
classified from the point of view of the nature of the power conferred under the following
broadheads:

a. Skeleton Legislation- In Bagla v. State of Madhya Pradesh24, the following two

sections of the Essential Supplies (Temporary Powers) Act, 1946, was questioned on
the ground of excessive delegation:
• Section 3(1) - "The Central Government, so far as it appears to it to be necessary
or expedient for maintaining or increasing supplies of any essential commodity, or
for securing their equitable distribution and availability at fair prices, may by order
provide for regulating or prohibiting the production, supply." and
• Section 6 -"Any order made under section 3 shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than this Act."

The Supreme Court declared both the sections valid saying that the Act had sufficiently
formulated the legislative policy, "maintaining or increasing supplies etc.", in section
3, and gave clear and sufficient guidance to the Government to exercise its power under
the Section. Justifying the broad delegation, the Court stated that the "ambit and the
character of the Act is such that the details of that policy can only be worked out by
delegating them to a subordinate authority within the framework of that policy.” In this
way, the Supreme Court upheld a very broad delegation of power.

24
Bagla v. State of Madhya Prades1954 AIR 465

13
 In Bhatnagars & Co. v. Union of India25, was involved in section 3(1) (a) of the Imports
and Exports (Control) Act, 1947 authorizing the Central Government to prohibit or
restrict the import or export of goods of any specified description by order. The statute
is skeletal and gives no indication as to what considerations and policies are to be kept
in view by the Government in controlling imports and exports. The Supreme Court
upheld the statute as valid arguing that the underlying policy was to be found in the
preceding statute, the Defense of India Act, 1939, whose provisions the statute in
question purported to continue.

In Makhan Singh v. State of Punjab26, the Supreme Court saved section 3 of the Defense
of India Act, 1962 from the charge of excessive delegation, Section 3 empowered the
Central Government to make rules, as it appears expedient to it, for Defense of India
and maintenance of public order and safety.

b. Power of Exclusion and Inclusion: A common legislative practice is to confer power

on the Government to bring individuals, bodies or commodities within, or to exempt
them from, the purview of a statute. Several formulae are in vogue for the purpose.
Thus, the range of operation of the act can be expanded or reduced by making
alterations in the schedule through delegated legislation. The Minimum Wages Act,
1948 has been enacted, as stated in its Preamble, "to provide for fixing minimum wages
in certain employments". The Act applies to employment mentioned in the schedule,
but the Government is given power to add any other employment thereto and, thus, to
extend the Act to that employment. The Act lays down no norms on which Government
may exercise its power to add any employment to the schedule. In Edward Mills Co. v.
State of Ajmer27, the Supreme Court upheld the provision arguing that the policy was
apparent on the face of the Act which was to fix minimum wages in order to avoid
exploitation of labour in those industries where wages were very low because of
unorganized labour or other causes.
c. Power to Amend Schedule: In a number of cases, the power to amend the schedule has
been upheld because the policy to give guidance to the Government was discernible
from the Act. It is constitutional for the Legislature to leave it to the Executive to
determine details relating to the working of taxation laws. It was held in Banarasi Das

25
Bhatnagars & Co. v. Union of India1957 AIR 478
26
Makhan Singh v. State of Punjab 1964 AIR 381
27
Edward Mills Co. v. State of Ajmer 1955 AIR 25

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 Bhanot case28 that power conferred on the State Government by section 6(2) of the C.P.
and Berar Sales Tax Act, 1947 to amend the schedule relating to exemption is in
consonance with the accepted legislative practice Hating to the topic and is not
unconstitutional.
The Supreme Court upheld the provision against the challenge on the basis of excessive
delegation on two grounds:
o It is common to give to the Executive the power to amend schedules and such
power has been upheld in a number of cases;
o Changes in the schedule could be made after giving three months' notice. This
was a check on an arbitrary exercise of power. The Government would give.
The Publicity of its intention to amend the schedule and also give an opportunity
to interested parties to make representations against the proposed changes. In
the case of a democratic government, this procedure itself acts as a check on
arbitrary exercise of power. In this case, delegation of Legislative power was
upheld because it was subject to the procedural safeguard of three months’
notice.

In Mohammed Ali v. Union of India29, The Supreme Court upheld a provision in the
Employees' Provident Funds Act, 1952, authorizing the Central Government to bring
within the purview of the Act such establishments as it might specify.

d. Power to Exempt: A statute may grant power to the Executive to exempt from its
operation including person, institution or commodity. The reason to include an
exemption clause in a statute is that because of the heavy burden of work, the
Legislature is not able to devote enough time to consider in detail the hardships and
difficulties which may arise as a result of enforcement of the statute. In some cases,
a situation may arise where the provisions of the Act may result in great hardships
to individuals. The exemption clause helps in removing such hardships without
materially affecting the policy of the Act. In Lohia Machines Ltd. Case30, it was held
that where relief or exemption is granted by the statute, the Executive has discretion
to work out details of such relief or exemption. It was further held that Legislature's

28
Banarasi Das Bhanot v. State of MP 1958 AIR 909
29
Mohammed Ali v. Union of India 37 (1989) DLT 389
30
Lohia Machines Ltd. & Anr vs Union Of India & Ors, 25 January, 1985

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 strict vigilance and control over the rule making power is a circumstance showing
absence of excessive delegation of power.
e. Power to modify the statute:- At times, the power to modify a statute is conferred
on the Executive because if the matter is taken to the Legislature, it may delay the
making of necessary changes in the statute thus a necessity of balancing two factors:-
o the danger of the executive misusing its power, and
o the need for delegating the power.

In Baburam Jagdish Kumar & Co.31 case it was held that power by the Legislature
to a local authority or to Executive Government to vary or modify an existing law
would not be unconstitutional so long as such delegation does not involve
abdication of essential legislative power by the Legislature, i.e., necessary
guidelines are provided.

6. CRITICISM, CONCLUSION, SUGGESTION

In conclusion, the doctrine of excessive delegation has been a significant issue in Indian
administrative law for several decades. The Indian judiciary has played a crucial role in
ensuring that the validity of delegated legislation is maintained by conducting a judicial review.
The principle of separation of powers and the constitutional mandate of checks and balances
necessitate such a review. It is essential to ensure that the delegated legislation does not exceed
the limits of authority granted to the delegated authority.

The Indian judiciary has consistently emphasized that the policy and principles laid down by
the enabling act are essential in determining the validity of delegated legislation. The judiciary
has set several tests to determine whether the delegation is excessive or not, including the extent
of delegation, clarity of the legislation, and the scope of the delegated authority. The judiciary
has also been strict in ensuring that the delegated legislation does not violate any fundamental
rights guaranteed under the Indian Constitution.

Furthermore, the judiciary has also recognized the need for the delegated authority to exercise
discretion in a reasonable manner. The delegated authority must act within the limits of the
enabling act and ensure that its actions are not arbitrary, capricious, or discriminatory. The
delegated authority must also take into account relevant factors and consider the interests of all
stakeholders while making decisions.

31
Baburam Jagdish Kumar & Co. v. State of Punjab 1979 AIR 1475

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However, one criticism of the doctrine of excessive delegation is that it can limit the flexibility
and responsiveness of the executive to changing circumstances. Delegated legislation allows
the executive to respond quickly to new situations and issues, but excessive delegation can
create confusion and uncertainty. Therefore, a balance must be struck between the need for
flexibility and the need for accountability and transparency.

In conclusion, the doctrine of excessive delegation is an essential aspect of administrative law

in India. The Indian judiciary has played a crucial role in ensuring that the delegated legislation
is within the limits of authority granted to the delegated authority. The policy and principles
laid down by the enabling act are crucial in determining the validity of delegated legislation,
and the delegated authority must exercise its discretion in a reasonable manner. The Indian
judiciary's consistent efforts to strike a balance between the delegated authority's autonomy
and the constitutional mandate of checks and balances have helped in maintaining the validity
of delegated legislation.

7. BIBLIOGRAPHY

7.1.BOOKS-
1. KC Joshi, An Introduction to Administrative Law (Central Law Publication 2006)
43.

2. Justice Thakker & Mrs Thakker, MC Lectures on Administrative Law (4 th edn,

Eastern Book Company 2010).

3. Sarma B, The Law of Ultra vires (New Delhi: Eastern Book Company 2004) 1.

7.2. JOURNALS-
• PP Rao, ‘Separation of Powers in a Democracy: The Indian Experience’ [2005] 37(1)
Peace Research 113-122.
• Kumari A, ‘Control Mechanism over Delegated Legislation’, (2018) 6 (2) IJCRT 1.
• Sourav Paul, ‘Excessive Delegation and India’s New IT Rules 2021’ (Constitutional
Law Society NLUO, 26 March 2021) accessed 12 October 2021.
• Shukla V, ‘Judicial Control of Delegated Legislation in India’ [1959] 1(3) Journal of
the Indian Law Institute 357- 374.

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