Delegated legislation

Delegated legislation is generally a type of law made by the executive authority as per the powers
conferred to them by the primary authority in order to execute, implement and administer the
requirements of the primary authority.
By Black’s Law: 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.
By Salmond: Delegated legislation is the legislation that comes from any form of authority apart
from the sovereign power and depends on a supreme authority for the continuance of its existence.
It can be said that it is the law made by any person or authority under the power of parliament. It
is also known as subordinate legislation in administrative law. It allows the bodies beneath the
primary authority or legislature to make laws according to the requirement.
Reasons for growth of Delegated legislation:
Many factors are responsible for the rapid growth of Delegated legislation in every modern
democratic state. The traditional theory of 'laissez faire' has been given up every state and the old
'police state' has now become a 'welfare state'. Because of the radical change in the philosophy as
to the role to be played by the state, its functions have increased. Consequently, Delegated
legislation has become essential and inevitable.
The factors responsible for the growth of Delegated legislation are:
1. Pressure upon Parliamentary time:- As a result of the expanding horizons of state activity, the
bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to
discuss all the matters in detail. Therefore, legislature formulates the general policy – The skeleton-
and empowers the executive to fill in the details.
2. Technicality: Sometimes, the subject-matter on which legislation is required is so technical in
nature that the legislator, being himself a common man, cannot be expected to appreciate and
legislate on the same, and the assistance of experts may be required. Here the legislative power
may be conferred on experts to deal with the technical problems, e.g., gas, atomic energy, drugs,
electricity etc.
3. Flexibility:- At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies and some provisions is required to be made for these unforeseen situations
demanding exigent action. A legislative amendment is a slow and cumbersome process, but by the
device of delegated legislation, the executive can meet the situation expeditiously.
4. Experiment :-The practice of Delegated legislation enables the executive to experiment. This
method permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience.
5. Emergency:- In times of emergency, quick action is required to be taken. The legislative process
is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the
only convenient – indeed the only possible – remedy.
6. Complexity of modern administration:- The complexity of modern administration and the
expansion of the functions of the state to the economic and social sphere have rendered it necessary
to resort to new forms of legislation and to give wide powers to various authorities on suitable
occasion.
Importance of Delegated Legislation
The importance of delegated legislation plays an important role in the Indian Constitution. And
they are listed below:
• Delegated legislation is beneficial for decision making for Parliament as its not time
consuming process and also reduces burden of the Parliament. And the most important
thing is that there is no such restrictions imposed in passing any law.
• Delegated legislation gives power of authority to the assigned person who has
knowledge, familiar with individuals problems and responsible for the society to
formulate law rather depending upon the Parliament.
• As Parliament process of decision making is time consuming so it give power to
individual who’s best suited for it to solve any emergency situation if arises without its
dependence or interference. This process is called delegated legislation.
• Delegated legislation can substitute any crisis that makes it flexible and useful to make
a law that the Parliament never foresee at the time of passing any new legislation.

Forms of delegated Legislation:

Delegated Legislation may take several forms. They may be normal or of exceptional type, may
be usual or unusual, positive or negative.
1. Title based classification: may be in the form of rules, regulations, bye-laws, notifications
schemes, ordinances, Directions, etc.
2. Discretion based classification: a discretion may be conferred on the executive to bring the
Act into operation on fulfillment of certain conditions. Such legislation is “conditional” or
“contingent” legislation.
3. Purpose based classification: A classification may be based on nature and extend of power
conferred and purposes for which such power can be exercised. Thus, executive can be
empowered to fix an appointed day for the Act to come into force, to supply details, to
extend the provisions of the Act to other areas, to include or to exclude operation of the act
to certain Territories, persons, industries, commodities and to suspend or to modify the
provisions of the Act, etc.
4. Authority based classification: a statute may also empower the executive to delegate further
powers conferred on it to its subordinate authority. This is known as “sub delegation”.

Constitutionality of delegated legislation:

Delegated legislation’s status and constitutionality in India can be shown in various cases. It is
separated into two phases: before independence (pre-independence) and after independence (also
known as post-independence).
Pre-independence
The Privy Council has only authorised conditional legislation in Queen v. Burah (1878). In this
case, the privy council transferred the legislature’s power to the executive. The administration of
a territory’s civil and criminal justice might be entrusted to officials selected by the Lieutenant-
Governor regularly.
Facts: by act of XXII of 1869, the area of Garo Hills Was removed from jurisdiction of civil and
criminal courts, and by section 9, The lieutenant governor was empowered to extend mutatis
mutandis all or any of the provisions of the act applicable to Khasi, Jaintia and Naga Hills in the
Garo Hills, and to fix the date of such application. B notification dated 14 October 1971, the
lieutenant governor extended all the provisions of the Act of the district of Khasi and Jaintia Hills.
the Appellants who were convicted of murder and sentenced to death, challenge the notification.
Held: The Privy Council reverse the decision of the Calcutta High Court. It held that the Indian
legislature was not an agent or delegate of the Imperial Parliament and it had plenary powers of
legislation as those of the Imperial Parliament itself. It agreed that the Governor General in Council
could not, by legislation create a new legislative power in India Not created or authorized by the
Council’s Act. But in fact it was not done. It was only a case of conditional legislation, as the
Governor was not authorized to pass new laws, but merely to extend the provisions of the Act
enacted by the competent legislature upon fulfillment of certain conditions.
In Jatindra Nath Gupta v. Province of Bihar,
Facts: the Bihar maintenance of public order act, 1948 was to remain in force for one year.
However, the power was conferred on the provisional government to extend the operation of the
act for a further period of one year.
Decision: Buy a majority. The Federal Court held that the power to extend the operation of the Act
beyond the period of one year was a legislative act and therefore could not be delegated. However,
in a dissenting judgement, J. Fazl Ali upheld the provision as the extension of the Act for a further
period of one year could not amount to its reenactment. It merely amounted to a continuance of
the act for which the maximum period was contemplated by the legislature itself.
In the case of King v. Banwari Lal Sharma, the Privy Council applied conditions that were
legislative once more, as it had in the matter of Queen v. Burah. The validity of the Governor-
General of India’s Emergency Ordinance was challenged in this case, among other things. It was
contested because he attempted to usurp power from the Provincial Government. He was
establishing special criminal courts for specific types of offences, but only the Provincial
Government had the authority to settle any court.
This is not delegated legislation, according to the judicial committee. The Privy Council further
stated that it is an example of an unusual legislative authority in which the local application of
State legislation is determined by the local administrative body when it is required.
Post-independence
The Indian Constitution does not take the same delegation of legislative powers as the influential
British Parliament. The extent to which delegation is permissible in India must be determined as a
matter of construction from the express provisions of the Indian Constitution. There is no such
thing as an inexhaustible right of delegation inherited in legislative power.
The Supreme Court of India upheld the delegation of the power conferred to the executive body
by the legislative body in the Raj Narain Singh v. Chairman, Patna Administration Committee Air
(1954) case. This case empowered the local government to extend any provisions of the act (Bengal
Municipality Act).
Nothing in the Indian constitution expressly prohibits the legislature’s power to delegate. But there
are two constitutional limitations on legislative delegation, which were laid down in the case
named Re Delhi Laws Act (1951) :
• Legislature cannot delegate its essential legislative functions.
• The power conferred on a subordinate authority or executive body should not suffer from
excessive delegation.
Conclusion: Constitutionality of delegated Legislation simply refers to the restrictions acceptable
within a country’s constitution regarding the legislature’s ability to transfer rulemaking authority
to other agencies or administrative authorities. The goal of extending the government’s power is
to deal with socio-economic problems as quickly as feasible. Delegation of legislation has its
advantages and disadvantages. If the courts have to find any restrictions on the legislature’s power
to delegate, it must be based on general principles and constitutional law theories.

In Re Delhi Laws Act Case:- Delhi Laws Act, 1912 is the first leading case decided by the
Supreme Court on Delegated legislation after the constitution of India came into force. A reference
was made to the Supreme Court by the President of India under Article 143 of the Constitution in
the following circumstances:
Facts :- The central govt. was authorized by section 2 of the part C states (laws) Act, 1950 to
extend to any Part C State with such modifications and restrictions as it thinks fit, any enactment
in force in Part A State; and while doing so, it could repeal or amend any corresponding law (other
than a Central Act) which might be in force in the Part C state.
Judgment: - The Supreme Court was called upon to decide the legality of the aforesaid provision.
All the seven judges who heard the reference gave their separate answers ' exhibiting a cleavage
of judicial opinion' on the question of limits to which the legislature in India should be permitted
to delegate its legislative power. The majority held the provision valid subject to two limitations-
1. the executive cannot be authorized to repeal a law in force and thus, the provision which
empowered the central govt. to repeal a law already in force in the Part C State was bad; and
2. By exercising the power of modification, the legislative policy should not be changed; and thus,
before applying any law to the part C state, the central govt. cannot change the legislative policy.
In Harishankar Bagla -v- State of M.P.,
Facts:- Under section 3 of the Essentials Supplies (Temporary Powers) Act, 1946, the central govt.
was empowered to issue an order for the regulation of production, distribution, etc of essentials
commodities and by section 6 it was provided that “an order made under section 3 shall have effect
notwithstanding anything inconsistent therewith contend in any enactment other than the Act”.
Both the sections were challenged on the ground excessive delegation of legislative power.
Judgment: - The Supreme Court held that the object of section 6 was not to repeal or abrogate any
existing law, but to bypass the same where the provisions thereof were inconsistent with the
provisions of the Act. The court also held that the legislative policy was laid down in the Act and
therefore, there was no excessive delegation. Thus, in-fact, very broad delegation of legislative
power was judicially sanctioned.
Edward Mills -v- State of Ajmeer,
Facts:- the Schedule to the Minimum Wages Act, 1948, contend a list of industries to which the
Act was made applicable by parliament, but the appropriate govt. was authorized to add any other
industry to said schedule. The matter of application of the provisions of the Act to any industry
was left to the 'opinion of the Govt.' but no norms were led down for the exercise of such discretion
and yet.
Judgment: - Supreme Court upheld the validity of the Act. According to the court, the legislative
policy was apparent on the face of the Act to fix minimum wage To avoid the chance of
exploitation of labor. But ' the test for selecting industries to be included in the Schedule, which
the court propounded, was no were mentioned in the Act but was formulated by the court itself to
uphold the Act'
Hamdard Dawakhana v. Union of India,
Was probably the first case in which the Central act was held ultra vires on the ground of excessive
delegation.
Facts: The drugs and magic remedies (Objectionable advertisements) Act, 1954 was enacted by
parliament to control advertisement of certain drugs. Section 3 laid down list of diseases for which
advertisement was prohibited unauthorized the central government to include any other disease in
the list.
Decision: The Supreme Court held Section 3 invalid as no criteria, standards of principles had
been laid down therein and the power delegated was unguided and uncontrolled.
It is submitted that the view taken by the Supreme Court was erroneous inas much as the legislative
policy had been laid down on the preamble and title of the Act. Certain diseases had been
mentioned and the government was empower to include and to bring within its purview any other
disease. There was nothing objectionable in such provision and prior to this case, as well as in
subsequently cases, such a provision had been held valid by the court In a number of cases.
In Gwalior Rayon Silk mfg. Co. Ltd v. CST ( Gwalior Rayon),
Facts: Under Section 8, Clause 2, Sub Clause B of the Central Sales Tax Act 1956, Parliament did
not fix the rate of central sales tax but adopted the rate applicable to sales or purchase of goods
within the appropriate state in case such rate exceeded 10%. The SET section was challenged on
the ground that the Parliament is not fixing the rate itself and in adopting the rate applicable within
the appropriate state, has not laid down any legislative policy and had abducted its legislative
function. The session was upheld by all the 5 judges, Ray CJ, Khanna, Mathew, Alagiriswami and
Bhagwati JJ, observing that sufficient guideline was provided in the act by parliament.

Excessive delegation:
It is well settled that essential and primary legislative function must be performed by the legislature
itself and they cannot be delegated to the executive.
Excessive in simple terms means to go beyond the scope legally. The primary functions of the
legislature is to make laws for the country. 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.
Essential Legislative functions consists 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 essential legislative powers are exercised by the legislature, all ancillary and incidental
functions can be delegated to the executive.
This doctrine fulfils two objectives: first, it ensures democratic accountability in the laws through
which the people are governed and, second, minimum delegation provides the courts with some
discernible standard to judge if the rule/regulation is ultra vires the parent statute.
Nature and Scope:
It is accepted that Parliament does not possess legislative power as an inherent and original power,
but as power delegated to it by the Constitution. Parliament thus cannot delegate as it will, but is
entrusted with a competence that the Constitution obliges it to exercise itself. It cannot legally
delegate its legislative functions to the Executive as that would be unconstitutional.
The parliament has derived the legislative powers from the Constitution and is not an inherent
power given to it. Due to this, the parliament cannot delegate its functions to the executive as and
when they feel so. The legislative function to an extent is given only to the judiciary.
If it so happens that the legislature does not perform its function and it is done by some other
branch, then it is deemed to be an abandonment or abdication of power. The authority to delegate
the power is qualified only if the test of non-abdication of power is passed and it is proved that
there will not be a parallel legislature set up.
Abdication:
Abdication means abandonment of sovereignty. When the legislature does not legislate and entrust
that primary function to the executive or to an outside agency, there is abdication of legislative
power.
Abdication may be partial or total. The power to delegate is subject to the qualification that the
legislature does not abdicate or efface itself by setting up a parallel legislature.
But delegation of legislative power need not necessarily amount to abdication or complete
effacement. What constitutes abdication and what class of cases are covered by that expression is
always a question of fact and it cannot be defined Nor a rule of universal application can be laid
down.
Principles:
1. Essential legislative functions to enact laws and to determine legislative policy cannot be
delegated.
2. Due to the complex nature of issues arising with time, it is seen that the Parliament cannot
always investigate each and every detail, therefore some part of the subject or legislation
can be given or allotted to experts to dela with.
3. Only if the power is given to the executive in a way that it is constitutional and permissible,
then it does not qualify as excessive delegation.

Test:

The primary test to see whether a legislative comes under excessive legislation is to check whether
the core function of the legislative power has been given off to the other branch. If it is affirmative,
then it is deemed to be a case of excessive legislation.

If not, then it does not qualify. It is to be taken care that when testing for excessive legislation to
enunciate a policy or a principle, the substance of what is done has to be considered than mere
matters.

A statute challenged on the ground of excessive delegation must be subject to two tests:

1. Whether it delegates essential legislative functions.

2. Whether the legislature has enunciated its policy and principle for the guidance of the
executive.

Deciding whether the legislature in enacting a statue has exceeded the limits of its authority to
enunciate policy and principle, Regard should be had not to mere matters of form but to be
substance of What is done.
The principal justification given for the use of excessive legislation is that as more complex matters
and new issues come in front of the legislature at regular intervals. It also happens that the
legislature may not be able to foresee many arising problems. This has to be taken care by the
legislature by the means of delegated legislation.

Jalan Trading co. Ltd. v. Mill Mazdoor Union,

Facts: Section 37(I) of the Payment of Bonus Act, 1965, empowered the central government to
make such orders, not inconsistent with the purpose of the act, as might be necessary or expedient
for The removal of any doubts or difficulties. Section 37 cross to make the order passed by the
central government under subsection final.

Decision: The caught by a majority of 3: 2 held section 37 ultra vires on the ground of Excessive
delegation inasmuch as the government was made the sole judge of whether any Difficulty or
doubt had arisen, Weather it was necessary or experience to remove such doubt or difficulty and
Whether the order made was consistent with the provisions of the Act.

The minority, How about took a liberal view and held that the functions to be exercised by the
central government was not legislative function at all, but were intended to advance the purpose
which the legislature had in mind.

Patna University v. Amita Tiwari,

Facts: Relevant statue enabled the transfer to issue directions to universities “in the administrative
or academic interests.” In exercise of that power, the Chancellor directed the university to
regularize services of an ineligible teacher “on compassionate grounds”, when the action was
challenged the “removal of difficulties” clause was invoked for support.

Decision: holding that the “removal of difficulties” clause had only limited application, the
SUPREME COURT quashed the order.
Conditional legislation
Definition: ‘Conditional Legislation’ may be described as “a statue that provides controls but
specifies that they are to go into effect only when a given administrative authority fulfils the
existence or conditions defined in the statute.”

Conditional legislation may also be called contingent legislation. In this type of legislation, a
statute provides powers to the administrative authority to determine when a law should be applied
or when it comes into force. but adds some specifications along with them.
Nature and Scope: In conditional legislation, legislature makes the law. It is full and complete. No
legislative function is delegated to the executive, but the said act is not brought into force and it is
left to the executive to bring the act into operation on fulfillment of certain conditions or
contingencies. And for that reason, the legislation is called conditional legislation or contingent
legislation.

When the law is complete and certain conditions are laid down as to how and when the law would
be applied by the delegate, it is conditional legislation. It includes no law-making powers but only
the power of determining when it should come into force or when it should be applied.
Categories:

1. where the legislation is “full and complete” but leaves its future applicability to the
executive authority
2. Where the legislation is imposed but leaves the power to be withdrawn from operation of
the Act in a given area or in given situations to the executive authority.
3. Where the legislation leaves it to the executive authority to grant benefit of the Act to one
class, depriving the rival class of such benefit.
Conditional Legislation can be found in the occurrences where :-

I. The legislature empowers the executive to expand the activity of a current law
to a specific area or region.
II. To determine and decide the time of application of an Act to a given area.
III. To broaden the span of a Temporary Act, subject to maximum period fixed by
the legislative assembly.
IV. To determine and decide the degree and limits within which the statute or Act
should be employable and operative.
V. Lastly, to Introduce a special law if the contemplated situation has arisen in the
opinion of the government.
Conditional Legislation allows better implementation and better reach of laws as it gives them
ample discretion to work and to make decisions regarding implementation in the best manner
possible.
Thus, all the modern socio-economic welfare schemes are a formation of the legislature, but they
have become successful in the country because of their implementation.

But this discretion cannot be exercised beyond the power that has been delegated. If exceeded,
then that action is null and void.

Field v. Clark,
Facts: The President was empowered to suspend operation of an act permitting free import of
certain products in the US On being satisfied that the duty is imposed upon such products were
reciprocally unequal and unreasonable.

Decision: the Supreme Court held that the Act valid on the ground that the Act was complete, and
the President was a mere agent of Congress to ascertain and declared the contingency upon which
the will of Congress was to take effect.
King Emperor v. Benoari Lal Sarma,

Facts: By promulgating an ordinance, The Governor General was empowered to set up special
codes, but the operation of the ordinance was left to the provisional government on being satisfied
that emergency had come into existence.
Decision: The calcutta high court held that there was excessive delegation and the ordinance was,
therefore, invalid. According to the Privy Council, it was a piece of conditional legislation as the
legislation was complete and what had been delegated was the power to apply the act on fulfillment
of certain conditions.
State of Bombay v. Narottamdas Jethabai,
Facts: By the Bombay City Civil Court Act 1948 and additional civil court was established for
Greater Bombay having jurisdiction to try all suits not exceeding ₹10,000, but the state government
was authorised to raise the jurisdiction up to ₹ 25,000.

Decision: The Supreme Court held that the provision was merely a conditional legislation and
upheld it. The legislature itself determined that the new code should be invested with the
jurisdiction up to ₹25,000 in value, but left to the executive to determine when the set power could
be exercised.

Sardar Inder Singh v. State of Rajasthan,

Facts: The Rajasthan Tenants’ Protection Ordinance was promulgated for 2 years and under
Section 3 thereof, RajPramukh was empowered to extend the life of the said Ordinance by issuing
a notification, if required. The duration of the ordinance was extended by issuing a notification
which was challenged before the Supreme Court.
Decision: The court upheld the provision as being conditional legislation.
Distinction between conditional and delegated Legislation
Delegated legislation is sometimes distinguished from condition legislation on the anvil of
discretion. In conditional legislation, it is the duty of the executive to apply the law after
performing the function of fact-finding. On the other hand, in case of delegated legislation, it is
left to the discretion of the government whether to exercise the power delegated to it or not.
Hamdard Dawakhana vs State, The Supreme Court pointed out that The distinction between
conditional and delegated legislation is that in the former delegate’s power is that of determining
when a legislative declared rule of conduct shall become effective, and the latter involves
delegation of rule making power which constitutionally may be exercised by The administrative
agent.
State of Tamil Nadu v. K. Sabanayagam, the Supreme Court observed that the delegated
legislation confers some legislative power on an outside authority(executive) and as such is open
to attack on the ground of excessive delegation. Conditional registration, on the other hand,
contains “no element of delegation of legislative power” And Is not open to attack on that ground.
Control Mechanism
Parliamentary Control or Legislative 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.

Modes:

1. Laying on table:

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. It
includes three important part as per the degree of control needs to be exercised.

1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact
then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular format then it
becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into operation then it will be
directory in nature.

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.

Procedural and Executive 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.
Judicial Control
Delegated Legislation does not fall beyond the scope of judicial review and in almost all
democratic countries, it is accepted that courts can decide the validity of delegated Legislation
mainly applying two tests:

• Substantive ultra vires

• Procedural ultra vires

Doctrine of ultra vires :

‘Ultra vires is a Latin phrase that means beyond power or authority or lack of power. An act may
be said to be “ultra vires when it has been done by a person or a body of persons which is beyond
his, it’s or their power, authority or jurisdiction.

Ultra vires relates to capacity, authority or power of a person to do an act. It is not necessary that
an act to be ultra vires must be illegal. The act may or may not be illegal. The essence of the
doctrine of ultra vires is that an act has been done in excess of power possessed by a person.

The doctrine of ultra vires is the basic doctrine in the area of administrative law, it provides that
an authority has to exercise only such power as it is conferred on it by the law. An action of the
authority is said to be Intra vires when it falls within the ambit of the powers conferred on it, but
ultra vires when it goes beyond the power conferred on it. The doctrine has two aspects:

I. Substantive ultra vires:

Substantive ultra-vires means that the delegated legislation has no substantive power under the
empowering Act to make the rules in question in other words it means that the delegate cannot
make a rule which is not authorized by the parent statute. Therefore the delegated legislation may
be held invalid on the ground of substantive ultra-vires. The following are the circumstances of
substantive ultra-vires :

• Constitutionality of the parent Act :

The first requirement for the delegation to be valid is that the parent Act or the enabling statute by
which the legislative power is conferred on the executive authority must be valid and
constitutional. If the parent statute is itself ultra-vires the constitution then the delegated legislation
is bad.

In Chintaman Rao v. State of Madya Pradesh, the parent Act has authorized the deputy
commissioner to prohibit the manufacture of bidis in some areas for a certain period, it was held
that the parent Act was unconstitutional as it violated Art. 19(1) (g) of the constitution and the
court also struck down the order passed by the deputy commissioner.

• Delegation of essential legislative functions :

It is a well-settled principle that the essential legislative functions must be carried out by the
legislature itself, if the essential legislative functions are delegated then the same will be struck
down .some essential legislative functions include a repeal of the law, modification of the Act, and
imposition of taxes.

• Constitutionality of the delegated legislation :

If the parent Act or some of its provisions through which the delegation is conferred are in
contravention of the constitution then the same will be declared as ultra vires.

In CB Muttamma v. Union of India, a provision in service-rule making a female employee obtain

the permission of the government before solemnizing the marriage and denying the right to get an
appointment on the ground that she was married was held to be unconstitutional.

• Unreasonableness and Arbitrary :

If the delegated legislation is unreasonable and arbitrary then it will be declared invalid.

In Air India v. Nargeesh mirza, a regulation framed by air India providing that services of an air
hostess could be terminated if she becomes pregnant was held arbitrary, unreasonable, and
violative of articles 14 and 15 of the constitution.

And in the case of the Indian council of legal aid and advice v. Bar Council of India, the court
held that the rule framed by the bar council of India barring enrolment of a person who is 45 years
of age is violative of articles 14,19 (1)(g) and 21 of the constitution.

• Malafide :

If the delegated legislation is made by the administrative authority exercising its power in Malafide
or with the ulterior motive then the same will be held ultra-vires and invalid.

In Narendra Kumar v. Union of India, the court struck down the delegated legislation on the
ground that the delegated legislation has acted Malafide or in bad faith.

• Exclusion of the judicial review :

Sometimes the clause is inserted in the parent Act ousting the jurisdiction of the courts, such an
ouster clause cannot affect the jurisdiction of the courts under articles 32,136, and 226 of the
constitution as judicial review is now considered as a part of basic structure doctrine.

• Retrospective operation :

Sometimes a delegated authority while making subordinate legislation tries to give retrospective
effect to the rules, but this power cannot be used by the delegated authority unless it expressly
confers powers in this regard.
The court in the case of State of Madhya Pradesh v. Tikim Das held that “the delegated
authority cannot use the power of retrospective effect for rules and regulations unless the
concerned statute expressly or by necessary implications confers power in this behalf”.

II. Procedural ultravires :

The delegated legislation may be challenged on the ground that it is not following the procedure
prescribed by the parent Act, if the delegated legislation fails to comply with procedural
requirements prescribed by the parent Act or by the general law then it is said to be procedural
ultra-vires.

The formalities which the authorities have to follow may include consultation with the interested
bodies, publication of the draft rules and regulations, hearing of objections, etc. If these
requirements are mandatory and the authorities disregarded these formal requirements then the
same may be invalidated by the court being ultra-vires the Enabling Act.

Sub-delegation
When is statute confers some legislative powers on an executive authority and the letter for the
delegates those powers to another subordinate authority or Agency, It is called sub delegatio.
Thus in sub delegation a delegate delegates. This process of sub delegation may go through many
stages. If we may call the enabling act the “parent” and the delegated and sub delegated legislation
the “children”, The parent in its own lifetime may beget “descendants” up to 4 or 5 degrees.
Object:
The necessity of sub-delegation can be supported, inter alia, on the following grounds:
1. Power of delegation necessarily carries with it the power of for the delegation.
2. Sub delegation is ancillary to delegated legislation.
3. Any objection to the set process is likely to subvert the authority which the legislature
delegates to the executive.

Doctrine: delegatus non protest delegare

the maxim delegates non potest delegare (a delegate cannot for the delegate) does not embody a
rule of law. It merely lays down a rule of construction of a statute. Hence, keeping in view the
facts and circumstances of each case, construction which would best achieve the purpose and
object of the statute should be adopted.
Sub delegation of legislative power, though generally impermissible, can be permitted either when
such power is expressively conferred by the statute or can be incurred by necessary implication.
Express power:
A.k. Roy v. State of Punjab,
Facts: The power to prosecute under the Prevention of Food Adulteration Act, 1954 was conferred
on the state government. The state government, in exercise of delegated legislation viz. Prevention
of food adulteration (Punjab) Rules, 1958 delegated the said power to Food Authority. The Food
Authority, by issuing a notification sub delegated the power to food Inspector, who Prosecuted the
accused.
Decision: The Supreme Court held sub delegation unauthorized and quashed the notification.
Ajaib Singh v. Gurbachan Singh,
Facts: Under the relevant statue, the central government was empowered to make rules for
detention of any person by an authority not below the rank of district magistrate. Where the order
of detention was passed by an additional district magistrate, the action was held bad.
Barium Chemicals Ltd. V. Company law board,
Facts: The rules, framed by the central government, empowered the chairman to distribute the
business of the board among himself as well as other members. The chairman passed and ordered
vesting the powers in himself alone.
Decision: the supreme court by a majority of 3:2 upheld the set act. In a dissenting judgement,
justice Shelat, however, rightly observed, “the statute having permitted the Delegation of powers
to the Board only As a statutory authority, The power so delegated have to be exercised by the
Board and not by its components.
Implied power:
Jackson Standsfield & sons v. Butterworth,
It was held in this case that the method (of sub-delegating power to issue circulars to local
authorities) was convenient and desirable, but the powers so to sub-delegate was, unfortunately,
absent.
United States v. Bareno,
Facts: The parent Act conferred on the President the power to make regulations concerning exports
and provided that unless otherwise directed the functions of the President should be performed by
the Board of Economic Welfare. The board sub-delegated the power to its Executive Director, who
further sub delegated it to his Assistant, who in turn delegated it to some officials.
Decision: the court held all the sub delegations valid.