Administrative Law

LLM I Semester

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 meet 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.

Meaning of delegated legislation

‘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,
Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
can allow someone else or somebody 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 with 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:

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

delegated to it by the Legislature.

 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 of delegated legislation in India

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

Shashikant Saurav

Asst. Prof. of Law, IILS

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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 were by-passed by the Assembly that were left to
future accord or judicial interpretation. In the case of Queen v. Burah, [1878] UKPC
26, 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.

Delegated legislation under the 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

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
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 [1959 AIR 512]

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
returns 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 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 [293 U.S. 388]

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

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
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 [1994 AIR 2342]

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.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]