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HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

ADMINISTRATIVE LAW

DELEGATED LEGISLATION AND ITS LIMITATIONS

SUBMITTED BY: SUBMITTED TO:

VAIBHAV KAYATH DR. CHANDRIKA

1020220113 Assistant Professor of law

B.A L.L.B

SEMESTER-4
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ACKNOWLEDGEMENT

I, Vaibhav Kayath , would take this opportunity to express my gratitude towards Himachal
Pradesh National Law University (Shimla) for the opportunity offered to me in the form of
this assignment that has helped me in elevating my capabilities.

I additionally acknowledge and convey my thanks to Dr. Chandrika, our professor, for her
valuable guidance and encouragement while I assembled this assignment. I also want to
stretch my gratitude to all those who have provided me with encouragement, timely guidance,
and constructive criticism and have contributed immensely to the evolution of my ideas in
this project.
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Table of Contents

1. Declaration ………………… ………………………….04

2. Introduction …………………………………………….05
3. Meaning ………………………………………………….06
4. History……………………………………………………07
5. Control of Delegated legislation………………………….08
6. Delegated Legislation under Constitution of India ………11
7. Constitutionality…………………………………………..13
8. Limitations ………………………………………………..15
9. Reference …………………………………………………17
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DECLARATION

I Vaibhav Kayath , undersigned solemnly declare that the project report based on Opportunity
cost is my own work carried out during the course of our study under the supervision of Dr.
Chandrika, Assistant Professor of law , at Himachal Pradesh National Law University
(Shimla). I assert the statements made and conclusions drawn are an outcome of my research
work.

I further certify that,

I. The work is done by me under the general supervision of my supervisor.

II. The work has not been submitted to any other institution for any other
degree/diploma/certificate in this university or any other University of India or abroad.

III. Whenever we used materials ( data, theoretical analysis, and text) from other sources, we
have given due credit to them in the text of the report and giving their details in the
references.
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INTRODUCTION

In the realm of legal theory, delegated legislation is one of the most debatable issues because
of its various implications. Indian democracy is said to rest on the acclaimed four pillars and
these are the legislature, the executive, the judiciary, and the press. These pillars are
empowered by the constitution not to interfere in the matters of others. As per the
Constitution, the legislative has legislative powers and the Executive has the power to
execute the laws. Similarly, the Judiciary has the power to resolve dispute and to met out
justice. But we have to keep in mind that there are multifarious functions that have to be
performed by the Legislature in welfare states and it is not an easy task for the legislature to
look after every matter.

In contrast to this increasing legislative activity, the legislatures are not able to find adequate
time to legislate on every minute detail. They have limited themselves to policy matters and
have left a large volume of area to the Executive to make rules to carry out the purposes of
the Legislature. In such types of situation, the system of delegated legislation comes to our
mind. Therefore, the need for delegation is necessary and is sought to be justified on the
ground of flexibility, adaptability and speed. This delegation is also known as ‘secondary
legislation’ or ‘subordinate legislation’. The Act that gives the executive the power to
legislate is called the ‘Enabling Statute’ or ‘Parent Act’. The standard of rule of the majority
has made authoritative controls inadequate. The term delegated legislation is hard to
characterize.
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MEANING

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

According to Sir John Salmond, “Subordinate legislation is that which proceeds from any
authority other than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was an expression
which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a
shield for Executors and a provocation to the Constitutional Jurist.

According to M.P Jain, this term can be used in two senses:[1]

 Exercise by subordinate agency or agency that is lower in rank to legislature

delegated to it by the Legislature.
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 The Subsidiary rules made by the Subordinate Authority in the execution of the
power bestowed on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation.

HISTORY

The historical backdrop of the delegation of power can be followed from the Charter Act of
1833 when the East India Company was recapturing political impact in India. The Charter
Act of 1833 vested the administrative powers only in the hands of the Governor-General-in
Council, which was an official body. He was enabled to make laws and guidelines for
revoking, correcting or modifying any laws or guidelines, which were for all people
regardless of their nationality. In 1935 the Government of India Ac, 1935 was passed which
contained a serious plan of delegation. The report of the Committee of Ministers’ Powers was
submitted and affirmed which completely settled the case for assignment of forces and
appointment of enactment that was viewed as inescapable in India.

However, our Constitution depended on the separation of power; a total partition of forces
was unrealistic henceforth it kept up the holiness of the tenet in the cutting edge sense. The
Indian Constitution does not deny the assignment of forces. Then again there are a few
arrangements where the official had been conceded with the administrative forces. For
instance, the administrative forces of the President under the Indian Constitution are
prominent. The problem of the delegation of legislation in India originated under the British
rule when the controversy on the problem in the West was in full swing. In independent
India, the conflict of settling the problem of the delegation of legislative power was prima
facie to a conflict between the English and American type of solution.

The Constitution of India comprises of more than four hundred Articles and it had not been
surprised if the Constitution makers include some solution for it. But why these provisions
were incorporated in the Constitution? This is because the politicians in the Constituent
Assembly tended to multiply legal formulations. These issues were of minor importance on
which legal formulation was made in comparison to other greater constitutional issues that
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were by-passed by the Assembly that were left to future accord or judicial interpretation. In
the case of Queen v. Burah[2], nature and extent of Legislature power and the feasibility of
its delegation was considered by the Privy Council. The Privy Council, in this case, held that
Councils of Governor-General was supreme Legislature and has ample number of powers and
who are entitled to transfer certain powers to provincial executors. At the time of passing
of New Delhi Act of 1912, the Privy Council accepted the transfer of Legislature power to
the Executive.

Control of Delegated legislation

Parliamentary control : Under parliamentary democracy it is a function of the legislature to

legislate, and it’s not only the right but the duty of the legislature to look upon its agent, how
they are working.

It is a fact that due to a delegation of power and general standards of control, the judicial
control has diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because the executive

is responsible to the legislature at two stages of control.

1. Initial stage

2. Direct and Indirect stage

In the Initial stage, it is to decide how much power is required to be delegated for completing
the particular task, and it also observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

1. Direct control

2. Indirect control

Direct control

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament.
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Indirect control

This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.

3. Whether it has retrospective effect or not.

4. Whether it safeguard or destroy the Principle of Natural Justice.

5. Expenditure involved in it is from Consolidated fund.

Judicial Control : Judicial review upgraded the rule of law. The court has to see that the
power delegated is within the ambit of the constitution as prescribed. Judicial review is more
effective because court do not recommend but it clearly strikes down the rule which is ultra
vires in nature. As per Section 13(3)(a) “Law” is defined under the Constitution of
India which clearly indicate that State should not make any law which abridge the right given
in Part iii of the Constitution. It is dependent on two basic grounds:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.

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Procedural Control : There is no particular procedure for it until the legislature makes it
mandatory for the executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.

3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.

3. Language used for drafting purpose.

4. Inconvenience caused to the public at large scale.

And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council.
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Delegated Legislation Under Constitution Of India

Although the concept of delegated legislation was not mentioned specifically in the Indian
Constitution it can be understood by interpreting Article 312 of the given Constitution. This
Article gives right to the Rajya Sabha to open a new branch of All India Service with a
majority of two-thirds majority vote. This means that some powers of legislation will be
delegated to the new recruiter of All India Service. There are many cases through which
delegated legislation under the constitution of India can be understood. These are:

D.S. Grewal v.The State of Punjab [3]

Facts: This case questions the constitutionality of All India Service Act, 1951. The appellant
was appointed to All India Service and posted to the State of Punjab. He held the charge of
Superintendent of Police in various districts but was reverted or return to the post of Assistant
Superintendent of Police in August 1957 and was posted to Dharamsala in March in the year
1958. In the same month, he was informed that an action has been taken against him under
Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee
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was set up against him under the leadership of Shri K. L. Bhudiraja. He then immediately
made an application under Article 226 of the Indian Constitution before the Punjab High
Court challenging the constitutionality of the Act and legality of the enquiry against him. Six
contentions were made by the appellant lawyer.

Judgment: K.N. Wanchu, Justice of the Supreme Court at that time, dealing with the power
of delegated legislation under Article 312 of the Indian Constitution. As the case has been
very serious the appellant can be removed or compulsorily dismissed from the post by the
Central Government and therefore Central Government has instituted enquiry against him.
There is nothing mentioned in Article 312 of the Indian Constitution that takes away the
power of delegation.

 The delegation power of India and America is that the Congress doesn’t have
much power of delegation but it is different from the English in which the
parliament is supreme has an excess of delegating power.

Panama Refining Co. v. Rayan[4]

Facts: Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the President of
the United States with some powers under which he can make any order and violation of that
order may lead to panel provision. The President issued the prohibition made by the above act
through the executive and authorized the Security of Interior to exercise all the powers vested
in the President under section 9(c) of the Act. The Security of Interior issued a regulation to
accomplish the President’s order(s). The Section mentioned above was challenged on the
ground that it was an unconstitutional delegation of legislative power by the Congress.

Judgment: It was held by the Supreme Court of the United States that delegation of
legislative power given by President is void. The court held that Congress can delegate power
to the Executive only on two conditions. Firstly, the Statute laid down these policies.
Secondly, one has to establish the standards and give the administration the power of making
the subordinate rule within the given limit.

Sikkim v. Surendra Sharma[5]

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Facts: After Sikkim became the State of the Union Of India, the Directorate of Survey and
Settlement of Government of Sikkim created and advertised for certain temporary posts. Like
other people, the respondent has also applied for the post. They got selected and were
appointed in different capacities. After the survey work got completed some of the employees
got terminated from the job. In 1982, some of the employees, who were ‘not locals’, filed a
writ petition in the High Court of Sikkim challenging the decision of the Government asking
why it has fired the employees from the service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees solely on the ground that he
is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held
that all rules and legislations created under the power which is granted under sub-clause (k)
of the Article 371F constituted subordinate legislation. This article was added to the
Constitution through the 36th Constitutional Amendment.

CONSTITUTIONALITY

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

 The position and Constitutionality of delegated legislation in India can be seen in

various cases. It is divided into two phases i.e., before independence or we can say
it as pre-independence and post-independence.

 Pre Independence: In Queen v. Burah, only Conditional Legislation has been

validated by the Privy Council and therefore delegated legislation is not permitted
as per its reasoning. The administration of civil and criminal justice of a territory
can be vested in the hands of those officers who were appointed by the Lieutenant-
Governor from time to time.
The Privy Council has stated that it is better to take help from the subordinate agency in
framing the rules and regulations that are going to be the part of the law and giving another
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body the essential legislative features that has only given to the Legislature through the
Constitution. He also stated about the essential legislative function that included in
determining the legislation policy.

In King v. Benori Lal Sharma, Condition legislative was again applied by the Privy Council,
the same as in the case of Queen v. Burah. In this case the validity of the Emergency
Ordinance given by Governor-General of India was challenged inter alia. It was challenged
on the ground that he is taking the power of the Provincial Government. He was setting up
special criminal courts for particular kind of offences but for the settling of any court, power
has been given only to the Provincial Government. The judicial committee held that this is
not delegated legislation. Privy Council also held that it is an example of an uncommon
legislative power by which the local application of the provision of State determined by the
local administrative body when it is necessary.

 Post Independence: The Constitution of India does not provide the same position
as the prominent British Parliament provide to the delegation of legislative powers
and also how far delegation is permissible has got to be confirmed in India as a
matter of construction from the express provisions of the Indian Constitution. It
cannot be said that an exhaustible right of delegation is inherited in the legislative
power itself.
In the case of Raj Narain Singh v. Chairman, Patna Administration Committee Air,[9] the
Supreme Court of India upheld the delegation of power given to the executive by the
legislature.
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Limitations of Delegated Legislation

Delegated legislation, while providing flexibility and efficiency in lawmaking, also presents
several limitations and challenges, let's delve deeper into each of the limitations of delegated
legislation:

1. Democratic deficit : The democratic deficit arises because delegated legislation is often
created by government ministers or administrative agencies rather than by elected
representatives in the legislature. This means that those making the laws are not directly
accountable to the electorate, as they would be in a democratic system. Critics argue that this
undermines the principle of representative democracy, where laws should ideally be made by
those who have been directly elected by the people.

2. Potential for abuse : Delegated legislation grants significant discretion to the executive
branch, which can potentially abuse this power. For example, government ministers may use
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delegated legislation to bypass parliamentary scrutiny or to push through controversial

measures without proper debate. This concentration of power in the hands of a few
individuals or bodies can lead to decisions that are not in the best interests of the public.

3. Complexity and accessibility : Delegated legislation can be highly technical and complex,
often involving detailed regulations and procedures. This complexity can make it difficult for
ordinary citizens to understand their rights and obligations under the law, especially if they
do not have legal expertise. As a result, individuals may inadvertently breach laws or fail to
enforce their rights due to a lack of understanding, undermining the principle of legal
certainty.

4. Limited parliamentary scrutiny : While delegated legislation is theoretically subject to

parliamentary scrutiny, the level of scrutiny it receives may be insufficient compared to
primary legislation. Parliamentarians may lack the time, resources, or expertise to thoroughly
examine all delegated legislation, leading to laws being enacted without adequate oversight.
This can result in laws that are poorly drafted, inconsistent, or contrary to the public interest.

5. Potential for inconsistency : Delegated legislation may be created by multiple authorities,

leading to inconsistencies or conflicts within the legal framework. For example, different
government departments or agencies may issue regulations that contradict each other or
overlap in scope. This can create confusion for those subject to the law and undermine the
rule of law, which relies on a coherent and consistent legal system.

6. Inadequate consultation : The process of creating delegated legislation may lack

sufficient consultation with relevant stakeholders or affected parties. This can result in laws
that do not adequately address the needs or concerns of those impacted by them, leading to
dissatisfaction or resistance from affected groups. Effective consultation is essential for
ensuring that laws are legitimate, effective, and responsive to the needs of society.
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7. Limited flexibility in interpretation : Delegated legislation typically requires formal

amendment by the delegating authority to make changes, which can limit its flexibility in
interpretation and application. Unlike primary legislation, which can be amended by the
legislature, delegated legislation may be slower to adapt to changing circumstances or
evolving needs. This can result in outdated or ineffective laws remaining in force for
extended periods, hindering the ability of the legal system to respond effectively to new
challenges or developments.

These limitations underscore the need for robust safeguards, such as parliamentary oversight,
public consultation, and mechanisms for review and appeal, to ensure that delegated
legislation is made in a transparent, accountable, and responsive manner.

Reference

1. https://www.jstor.org/stable/43951254?
readnow=1&seq=3#metadata_info_tab_contents

2. Queen v. Burah, [1878] UKPC 26

3. D.S. Grewal v.The State of Punjab, 1959 AIR 512

4. Panama Refining Co. v. Ryan, 293 U.S. 388

5. State Of Sikkim vs Surendra Prasad Sharma, 1994 AIR 2342

6. https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp

7. Field v. Clarke, 143 U.S. 649 (1892)

8. Wagman v. Southard, 23 U.S. 10 Wheat. 1 1 (1825)

9. Raj Narain Singh v. Chairman, Patna Administration Committee Air, 1954 AIR
569

10. Lachmi Narain v. Union of India, Air 1976 Sc 714

11. Kruse v. johnson, [1898] 2 QB 91

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12. In Re The Delhi Laws Act, 1951 AIR 332

13. Chintaman Rao and Ors. v. State of Madhya Pradesh, 1951 AIR 118

14. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II,
Wadhwa Nagpur.