INTERPRETATION OF STATUTES AND PRINCIPLES OF

LEGISLATION

Project Topic:
CHANGING TREND OF INTERPRETATION

Submitted by
SAPNA PANDEY
Roll No. - 1370
7th Semester, 3rd Year, B.A.LL.B. (Hons.)

Submitted to
DR. ALI MOHAMMAD

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
SEPTEMBER, 2018
ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First of all, I am very grateful to my subject teacher Ali Mohammad without the
kind support of whom and help the completion of the project was a herculean
task for me. He donated his valuable time from his busy schedule to help me to
complete this project and suggested me from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic
which proved beneficial in completing this project.

I last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

SAPNA PANDEY
B.A.LL.B.(hons.)

2
CONTENTS

ACKNOWLEDGEMENT ......................................................................................................... 2

CONTENTS ............................................................................................................................... 3

Introduction ................................................................................................................................ 4

Meaning of Delegated Legislation ............................................................................................. 4

History of Delegated legislation in India ................................................................................... 6

Federal Court .......................................................................................................................... 7

Supreme Court ........................................................................................................................ 8

Delegated Legislation: Position under Constitution of India ..................................................... 9

Criticisms of Delegated legislation ............................................................................................ 9

Reasons for Growth of Delegated Legislation ......................................................................... 10

Types of Delegated legislation: - ............................................................................................. 11

Constitutionality of Delegated Legislation Position in the USA: ......................................... 11

Position in England :............................................................................................................. 12

Position in India .................................................................................................................... 13

Pre Independence .............................................................................................................. 13

Post – Independence .......................................................................................................... 15

Legislative Control on delegated legislation ........................................................................ 16

Judicial Control Over Delegated Legislation ....................................................................... 17

Conclusion ............................................................................................................................... 20

Bibliography ............................................................................................................................ 22

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INTRODUCTION

Interpretation means the art of finding out the true sense of an enactment by giving the words
of the enactment their natural and ordinary meaning. It is the process of ascertaining the true
meaning of the words used in a statute. The Court is not expected to interpret arbitrarily and
therefore there have been certain principles which have evolved out of the continuous
exercise by the Courts. These principles are sometimes called ‘rules of interpretation’. The
object of interpretation of statutes is to determine the intention of the legislature conveyed
expressly or impliedly in the language used. As stated by SALMOND, "by interpretation or
construction is meant, the process by which the courts seek to ascertain the meaning of the
legislature through the medium of authoritative forms in which it is expressed." Interpretation
is as old as language. Elaborate rules of interpretation were evolved even at a very early stage
of the Hindu civilization and culture. The importance of avoiding literal interpretation was
also stressed in various ancient text books – “Merely following the texts of the law, decisions
are not to be rendered, for, if such decisions are wanting in equity, a gross failure of Dharma
is caused.” Interpretation thus is a familiar process of considerable significance. In relation to
statute law, interpretation is of importance because of the inherent nature of legislation as a
source of law. The process of statute making and the process of interpretation of statutes are
two distinct activities.

MEANING OF DELEGATED LEGISLATION

Delegated legislation (also referred to as secondary legislation or subordinatelegislation or

subsidiary legislation) is law made by an executive authority under powers given tothem by
primary legislation in order to implement and administer the requirements of thatprimary
legislation. It is law made by a person or body other than the legislature but with
thelegislature's authority. Often, a legislature passes statutes that set out broad outlines
andprinciples, and delegates authority to an executive branch official to issue delegated
legislationthat flesh out the details (substantive regulations) and provide procedures for
implementing thesubstantive provisions of the statute and substantive regulations (procedural
regulations).

Delegated legislation can also be changed faster than primary legislation so legislatures
candelegate issues that may need to be fine-tuned through experience.Legislation by the

4
executive branch or a statutory authority or local or other body under theauthority of the
competent legislature is called Delegated legislation. It permits the bodiesbeneath parliament
to pass their own legislation .It is legislation made by a person or body otherthan Parliament.
Parliament, through an Act of Parliament,1 can permit another person or body tomake
legislation. An Act of Parliament creates the framework of a particular law and tends onlyto
contain an outline of the purpose of the Act. By Parliament giving authority for legislation
tobe delegated it enables other persons or bodies to provide more detail to an Act of
Parliament.Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to makelaw and rules through delegated legislation.

The legislation created by delegated legislation must be made in accordance with the
purposeslaid down in the Act. The function of delegated legislation is it allows the
Government to amenda law without having to wait for a new Act of Parliament to be passed.
Further, delegatedlegislation can be used to make technical changes to the law, such as
altering sanctions under agiven statute. Also, by way of an example, a Local Authority have
power given to them undercertain statutes to allow them to make delegated legislation and to
make law which suits theirarea. Delegated legislation provides a very important role in the
making of law as there is moredelegated legislation enacted each year than there are Acts of
Parliament.2

In addition, delegatedlegislation has the same legal standing as the Act of Parliament from
which it was created. Thereare several reasons why delegated legislation is important. Firstly,
it avoids overloading thelimited Parliamentary timetable as delegated legislation can be
amended and/or made withouthaving to pass an Act through Parliament, which can be time
consuming.Changes can therefore be made to the law without the need to have a new Act of
Parliament andit further avoids Parliament having to spend a lot of their time on technical
matters, such as theclarification of a specific part of the legislation. Secondly, delegated
legislation allows law to bemade by those who have the relevant expert knowledge.

By way of illustration, a local authority3can make law in accordance with what their locality
needs as opposed to having one law acrossthe board which may not suit their particular area.
A particular Local Authority can make a lawto suit local needs and that Local Authority will
have the knowledge of what is best for thelocality rather than Parliament.Thirdly, delegated

1
http://aclawresearch.blogspot.in/2012/12/development-of-delegated-legislation-in.html.
2
Ibid.
3
Montesquieu in his Esprit Des Lois.

5
legislation can deal with an emergency situation as it arises without having towait for an Act
to be passed through Parliament to resolve the particular situation.

Finally,delegated legislation can be used to cover a situation that Parliament had not
anticipated at thetime it enacted the piece of legislation, which makes it flexible and very
useful to law-making.Delegated legislation is therefore able to meet the changing needs of
society and also situationswhich Parliament had not anticipated when they enacted the Act of
Parliament.A portion of law-making power of the legislative is conferred or bestowed upon a
subordinateauthority.4 Rules & regulations which are to be framed by the latter constitutes an
integralportion of the statute itself. It is within power of parliament when legislating within
its
legislative few, to confer suborbital administrative & legislative powers upon some other
authority.

Subordinate legislation, is the legislation made by an authority subordinate to the

sovereign authority, namely, the legislature. According to Sir John Salmond, "Subordinate
legislation is that which proceeds from any authority other than the sovereign power and is,
therefore, dependent for its continued existence and validity on some superior or supreme
authority."5 Most of the enactments provide for the powers for making rules, regulations, by-
lawsor other statutory instruments which are exercised by specified subordinate authorities.
Suchlegislation is to be made within the framework of the powers so delegated by the
legislature andis, therefore, known as delegated legislation. Thus all law making which takes
place outside thelegislature expressed as rules, regulations, bye laws, orders, schemes,
directions or notificationsetc is termed as delegated legislation.

HISTORY OF DELEGATED LEGISLATION IN INDIA

The Privy Council was the highest Court for appeal from India in constitutional matters till
1949.The question of constitutionality came before the Privy Council in the famous case of
R.Vs.Birah (1878) 3 AC 8896. An Act was passed in 1869 by the Indian Legislature to
remove GoroHills from the civil and criminal jurisdiction of Bengal and vested the powers of
civil andcriminal administration in an officer appointed by the Legislative Governor of
Bengal. TheLegislative Governor was further authorized by section 9 of the Act to extend

4
John Locke, in his Civil Government, article 141.
5
Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University Press, NewDelhi,
2006.5.
6
R.Vs. Birah (1878) 3 AC 889.

6
any provision ofthis Act with incidental changes to Khasi and Jaintia Hills. By a notification
the LegislativeGovernor extended all the provisions of the Act to the districts of Khasi and
Jaintia Hills. OneBurah was tried for murder by the commissioner of Khasi and Jaintia Hills
and was sentenced todeath. The Calcutta High Court declared section 9 as unconstitutional
delegation of legislativepower by the Indian legislature. The ground was that the Indian
Legislature is a delegate ofBritish Parliament, therefore,7 a delegate cannot further delegate.
The Privy Council on appealreversed the decision of the Calcutta High Court and upheld the
constitutionality of section 9 onthe ground that it is merely a conditional legislation. The
decision of the Privy Council wasinterpreted in two different ways.

(i) Indian legislature was not delegate of British Parliament; there is no limit on the
delegation oflegislative functions.
(ii) Since Privy Council has validated only conditional legislation. Therefore,
delegation oflegislative power is not permissible.So, it did not become clear
whether full-fledged delegated legislation was allowed or onlyconditional
legislation was allowed.

FEDERAL COURT

The question of constitutionality of delegation of legislative powers came before the Federal
Court in Jhatindra Nath Gupta Vs. Province of Bihar, AIR 1949 FC 175. On this case section
1(3) of Bihar Maintenance of public order Act, 1948 was challenged on the ground that it
authorized the provincial government to extend the life of the Act8 for one year with
modificationas it may deem fit. The Federal Court held that the power of extension with
modification isunconstitutional delegation of legislative power because it is an essential
legislative Act. In thismanner for the first time it was held that in India legislative powers
cannot be delegated.However, Fazal Ali J. in his dissenting opinion held that the delegation
of the power of extensionof the Act is unconstitutional because according to him it merely
amounted to a continuation ofthe Act. Later on, it is submitted that the minor view was
correct and the Supreme Court upheldsimilar provision in another cases.

7
http://aclawresearch.blogspot.in/2012/12/development-of-delegated-legislation-in.html.
8
John Locke, in his Civil Government, article 141.

7
SUPREME COURT

The decision in Jatindra Nath Case created doubts about the limits of delegation of
legislative
powers. Therefore, in order to clarify the position of law for the future guidance of the
legislaturein matters of delegation of legislative function, the President of India sought the
opinion of theCourt under Article 143 of the Constitution on the constitutionality of three
Acts which conferredextension of area and modification power to the executive.
The Delhi Laws Act case, AIR 1951 SC 3329, among them, is said to be the Bible of
delegated
legislation. Seven judges heard the case and produced separate judgments. The case was
argued
from two extreme points.

Argument-1: Power of legislation carries with it the power to delegate. If the legislative don’t
abdicate itself, there can be no limitation on delegation of legislative powers.
Argument-2: As there is in the Constitution the separation of powers and delegatus non
potest
delegare, so there is an implied prohibition against delegation of legislative powers.10

The Supreme Court took the moderate view and held-

(i) Doctrine of separation of powers is not a part of the constitution.

(ii) Indian Parliament is never considered an agent of anybody and therefore doctrine
ofdelegatus non potestdelegare has no application.
(iii) Parliament cannot abdicate or efface itself by creating a legislative body.
(iv) Power of delegation is ancillary to the power of legislation.
(v) The limitation upon delegation of power is that the legislature cannot part with its
essentiallegislative power that has been expressly vested in it by the constitution.
Essential legislativepower means laying down the policy of the law and enacting
that policy into a rule of conduct.So, the delegation was held to be valid except
with repealing and modification of legislativepower.

9
The Delhi Laws Act case, AIR 1951 SC 332.
10
Kumar, Narender; (2011) Nature and Concepts of Administrative Law, 1st Ed., Allahabad LawAgency,
Faridabad.

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DELEGATED LEGISLATION: POSITION UNDER CONSTITUTION OF INDIA

The Legislature is quite competent to delegate to other authorities. To frame the rules to carry
out the law made by it. In D. S. Gerewal v. The State of Punjab , K.N. Wanchoo, the then
justiceof the Hon'ble Supreme Court dealt in detail the powers of delegated legislation under
the Article 312 of Indian Constitution. He observed: "There is nothing in the words
of Article 312 which takes away the usual power of delegation, which ordinarily resides in
the
legislature.The words "Parliament may by law provide" in Article 312 should not be read to
mean that thereis no scope for delegation in law made under Article312…." In the England,
the parliament beingsupreme can delegated any amount of powers because there is no
restriction.11 On the other handin America, like India, the Congress does not possess
uncontrolled and unlimited powers ofdelegation. In Panama Refining Co. v. Rayans,12 the
supreme court of the United States had heldthat the Congress can delegate legislative powers
to the Executive subject to the condition that itlays down the policies and establishes
standards while leaving to the administrative authoritiesthe making of subordinate rules
within the prescribed limits. 4 Art. 13 (3) Defines law and itIncludes ordinance, order,
byelaw, rule, regulation & notification having the force of law.

In Sikkim v. Surendra Sharma (1994) 5 SCC28213- it is held that ‘All Laws in force’ in sub
clause(k) of Art. 371 F includes subordinate legislation. Salmond defines law as that which
proceedsfrom any authority other than the Sovereign power & is therefore, dependent for its
continuedexistence & validity on some superior or supreme authority.

CRITICISMS OF DELEGATED LEGISLATION

Delegated legislation is criticized for its various main defects which are as follows:-
• It has been suggested that by allowing delegated legislation it has allowed to make and
amend
laws.
• It lacks democracy as too much delegated legislation is made by unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.

11
John Locke, in his Civil Government, article 141.
12
Panama Refining Co. v. Rayans.
13
Sikkim v. Surendra Sharma (1994) 5 SCC282.

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Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws.14 Delegated legislation therefore has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of
Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made by statutory
instrument the public are not normally notified of it whereas with Acts of Parliament, on the
other hand, they are widely publicized.One reason for the lack of publicity surrounding
delegatedlegislation is because of the volume of delegated legislation made and this result in
the public notbeing informed of the changes to law. There has also been concern expressed
that too much lawis made through delegated legislation.

REASONS FOR GROWTH OF DELEGATED LEGISLATION15

Growth of Administrative Process bulk of law comes from the administrators.

1. Law making or ever widening modern welfare and service state is not possible. For the
nature and quality of work required 365 days – may not be sufficient and if overburdened the
parliament can’t give quality legislation. Also it is occupied with important policy matters
and
rarely finds time to discuss matters of details.
2. Filling in Details of legislation- The executive in consultation with the experts or with
its own experience of local conditions can better improvise. Also legislation has become
highly
technical because of the complexities of a modern govt.
3. Need for flexibility:- Ordinary legislative process suffers from the limitation of lack of
experiment. A law can be repeated by parliament itself, if it required adjustment
administrative
rule making is the only answer between two sessions.
4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis
legislation is needed.
5. When Govt. action required discretion – rule making power of administrative agencies is
needed when the government needs to have discretion to carry out the policy objectives.

14
Montesquieu in his Esprit Des Lois.
15
Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University Press, NewDelhi,
2006.5.

10
6. Direct participation of those who are governed is mere possible in delegated legislation.

TYPES OF DELEGATED LEGISLATION: -

1. Power to bring an Act into operation eq: on rule date on the Govt. by notification in
the Gazette. Example: on such date as the government by notification in the gazette because
govt. has better knowledge of the practical exigencies of bringing the law into force. The
Court
Cannot Ask the Govt. to bring the law into force.16 It was held in A.K. Roy. v. UOI AIR 1982
SC
71017where the constitution of the Advisory Board was in question and the term qualified to
be aHigh Court judge changed to actual or had been a High Court judge. National Security
Act. 1980did not have this provision it was held by the that the court cannot ask the Govt. to
implement.
(II) Conditional Legislation : - The legislation make the law but leaves it to the executive to
bring the act into operation when conditions demanding such operation are obtained.
(a) To bring an act into operation.

(b) To extend the application of any act in force in one territory.

(c) To extend or to except from the operation of an Act certain categories of subjects or
territories.

CONSTITUTIONALITY OF DELEGATED LEGISLATIONPOSITION IN THE USA:

Two phenomena operate in the USA namely—

1. Separation of Power and

2. “Delegatus non potestdelegare”.

Since Congress was itself a delegate, how can it delegate its

power. The framers of the American Constitution were imbued with the political theories
16
Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University Press, NewDelhi,
2006.5.
17
A.K. Roy. v. UOI AIR 1982 SC710.

11
propagated by John Locke and Montesquieu. John Locke has said :"The legislature cannot
transfer the power of making laws to any other hands : for it being but a delegated power
from
the people, they who have it cannot pass it over to others."18

According to Locke "the legislature neither must, nor can, transfer the power of making laws
toanybody else, or place it anywhere but where the people have." 7 Montesquieu had
developed
this doctrine of separation of powers.8 The framers of the American Constitution adopted the
doctrine in its full force as seen in the provisions of the US Constitution :

Art. 1, section 1. All legislative powers herein granted shall be vested in the Congress of
the United States, which shall consist of a Senate and House of Representatives.
Art. 2, section 1. The executive power shall be vested in a President of the United States of
America.
Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme
Court,
and in such inferior courts as the Congress many, from time to time, ordain and establish.
Alongside this doctrine of separation of powers the American constitutional law had another
doctrine which also negatived the delegation of power. Sutherland has stated "incident to the
separation-of-powers doctrine was the corollary that legislative power could not be exercised
byany agency of the government save the legislature."

"The rule against the delegation oflegislative powers, if there is such a rule, is broader than
any doctrine of separation of powers.That part of its which forbids the delegation of powers
to other branches or the governmentcomes within the doctrine of separation of powers. That
part of it which forbids the delegation ofpowers to independent boards or commissions rests
upon the maxim delegatapotestas nonpotestdelegare." Therefore the powers thus delegated
are not legislative powers. They areinstead administrative or quasi-legislative powers."

POSITION IN ENGLAND :

In England the Parliament is Supreme , unhampered by any constitutional

limitations with wide legislative powers on the executive. Parliament being supreme and it

18
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur.

12
powerto legislate being unlimited, there is nothing to prevent Parliament from delegating its
legislativepower to the executive officers or other subordinate bodies. Sir Cecil Carr in this
"DelegatedLegislation"19 quoted in the Report of the Committee on Ministers' Powers,
usually referred to asthe Donoughmore Committee, said : "The first and by the far smallest
part is made by the Crownunder what survives of the prerogative.

The second and weightiest part is made by the King inParliament and consists of what we call
Acts of Parliament.20 The third and bulkiest part is madeby such persons or bodies as the
King in Parliament entrusts with legislative power." Asobserved by Sir Cecil Carr, "the truth
is that if Parliament were not willing to delegate lawmaking power, Parliament would be
unable to pass the kind and quantity of legislation whichmodern public opinion requires." In
England, the practice of delegating legislative power hascertainly been facilitated by the close
fusion of the legislative and executive power resultingfrom the development the cabinet
system of government in England.

POSITION IN INDIA

Pre Independence: Queen v. Burah21wherein the Privy Council had validated only
Conditional
Legislation and therefore as per its reasoning delegated legislation is not permitted. The
administration of civil and criminal justice within the said territory was vested in such
officers asthe Lieutenant-Governor may from time to time appoint. Sections 8 and 9 of the
said Act
provided as follows :- "Section 8. The said Lieutenant-Governor may from time to time, by
notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any
law, now in force in the other territories subject to his Government, or which may hereafter
be
enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for
makinglaws and regulations,22 and may on making such extension direct by whom any
powers of dutiesincident to the provisions so extended shall be exercised or performed, and
make any orderwhich he shall deem requisite for carrying such provisions into operation."
"Section 9. The said Lieutenant-Governor may from time to time, by notification in the

19
Montesquieu in his Esprit Des Lois.
20
Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56.
21
Queen v. Burah
22
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur.

13
Calcutta
Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections
of
this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the
timebeing forms part of British India. It was held that Indian legislators have plenary powers
and itexercised the power in its own right and not as an agent or a delegate of the British
parliament.The privy council laid down that “seeking of assistance of a subordinate agency in
the framingof rules and regulations which are to become a part of the law and conferring on
another bodythe essential legislative functions which under the constitution should be
exercised by thelegislature itself. It also stated that the essential legislative function consists
in the determinationor choosing of the legislative policy and formally enacting that policy
into binding rule ofconduct.

Also in King v. Benoari Lal Sharma23Conditional legislation was again applied by the privy
council wherein the validity of an emergency ordinance by the Governor-General of India
was
challenged inter alia on the ground that it provided for setting up of special criminal courts
for
particular kinds of offences, but the actual setting up of the courts was left to the Provincial
Governments which were authorised to set them up at such time and place as they considered
proper. The Judicial Committee held that 24"this is not delegated legislation at all. It is merely
anexample of the not uncommon legislative power by which the local application of the
provisionsof a statute is determined by the judgment of a local administrative body as to its
necessity." Theprivy council held that “Local application of the provision of a state is
determined by thejudgment of a local administrative body as to its necessity.” Also the
Federal Court in JatindraNath v State of Bihar AIR 1949 FC 17525held that power of
extension with modification isunconstitutional as legislative power cannot be delegated.
Wherein the S. 1 (3) of Biharmaintenance of public order Act, 1948 was challenged – as it
gave power of extension ofmodification to provincial Govt. but this case But created doubts
on the limits of delegation.

23
King v. Benoari Lal Sharma.
24
Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56.
25
Jatindra Nath v State of Bihar AIR 1949 FC 175.

14
Post – Independence : The Delhi Laws Act, 1912, giving power to the Government to extend
to Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law
inforce in any other part of India, was held intra vires- The case also discussed the validity of
thelaw empowering the Government to extend to part C States any law in force in a part A
state andto repeal existing laws-- It was held ultra vires under article 143 of the Constitution
asking theCourt's opinion on the three questions submitted for its consideration and report.
Section 2 of thePart C States (Laws) Act, 1950, runs as follows :-"Power to extend
enactments to certain Part CStates. - The Central Government may, by notification in the
Official Gazette, extend to any PartC State (other than Coorg and the Andaman and Nicobar
Islands) or to any part of such State,with such restrictions and modifications as it thinks fit,
any enactment which is in force in a partA State at the date of the notification and provision
may be made in any enactment so extendedfor the repeal or amendment of any corresponding
law (other than a Central Act) which is for thetime being applicable to that Part C State.
The three sections referred to in the three questions are all in respect of what is described as
thedelegation of legislative power and the three particular Acts are selected to raise the
question inrespect of the three main stages in the constitutional development of India. 26 The
first covers thelegislative powers of the Indian Legislature during the period prior to the
Government of IndiaAct, 1915.

The second is in respect of its legislative power after the Government of India Act,1935, as
amended by the Indian Independence Act of 1947. The last is in respect of the power of
the Indian Parliament under the present Constitution of 1950.As regards constitution of the
delegation of legislative powers the Indian Legislature cannot be in
the same position as the prominent British Parliament and how far delegation is permissible
hasgot to be ascertained in India as a matter of construction from the express provisions of
the
Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the
legislature power itself. This is not warranted by the provisions of the Constitution and the
legitimacy of delegation depends entirely upon its being used as an ancillary measure which
thelegislature considers to be necessary for the purpose of exercising its legislative powers
effectively and completely.

The legislature must retain in its own hands the essential legislative
functions which consist in declaring the legislative policy and laying down the standard
26
Supra 8.

15
which isto be enacted into a rule of law, and what can be delegated in the task of subordinate
legislationwhich by its very nature is ancillary to the statute which delegates the power to
make it. Providedthe legislative policy is enunciated with sufficient clearness or a standard
laid down the courtscannot and should not interfere with the discretion that undoubtedly rests
with the legislatureitself in determining the extent of delegation necessary in a particular case.
These, in my opinion,are the limits within which delegated legislation is constitutional
provided of course thelegislature is competent to deal with and legislate on the particular
subject-matter. It is in thelight of these principles that I propose to examine the constitutional
validity of the threelegislative provisions in respect to which the reference has been made.

In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC
56927inwhich S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration
to extend toPatna the provisions of any sections of the act ( Bengal Municipality Act, 1884)
subject to suchmodification, as it might think fit28. The government picked up section 104
and after modificationsapplied it to the town of Patna. One of the essential features of the Act
was the provision that nomunicipality competent to tax could be thrust upon a locality
without giving its inhabitants achance of being heard and of being given as opportunity to
object. The sections which providedfor an opportunity to object was excluded from the
notification. It was held as amounting totamper with the policy of the Act.

In LachmiNarain v. UOI (1976 2) SCC 9529. where the validity of Section 2 of Union
Territories(Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be
determined.
The issue was that whether notification issued by Central Government in purported exercise
of
its powers under Section 2 ultra vires of Central Government.

LEGISLATIVE CONTROL ON DELEGATED LEGISLATION

While in the context of increasing complexity of law-making, subordinate legislation has

becomean important constituent element of legislation, it is equally important to see how this
process oflegislation by the executive under delegated powers, can be reconciled with .the
democraticprinciples or parliamentary control. Legislation is an inherent and inalienable right

27
Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569
28
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur.
29
LachmiNarain v. UOI (1976 2) SCC 95.

16
of Parliamentand it has to be seen that this power is not usurped nor transgressed under the
guise of what iscalled subordinate legislation. It can control the following:

1. Normal Delegation: -

a) Positive : - where the limits of delegation are clearly defined in the enabling Act
b) Negative: - does not include power to do certain thing (these not allowed)

2. Exceptional Delegation: -

a) Power to legislate on matters of principle (policy)

b) Power is amend Act of parliament (In re Delhi laws Acts )
W.B. State Electricity Board v. DeshBandhu Gosh (1958) 3 SCC 116 30it was held that
Regulation34 of the West Bengal State Electricity Regulation which had authorized the
Board to terminatethe Service of any permanent employer on three months’ notice or pay in
lieu thereof. This hire& fire rules of regulation 34 is parallel to Henry VIII clause.
Similar position was held by the court in the case of Central Inland Water
TransportCorporation Limited v. Brojo Nath Ganguly AIR1986SC157131wherein rule 9 of
the service rulesof the CIWTC conferred power to terminate on similar lines as in the case of
DeshBandhu
Ghosh the court went on to say that No apter description of Rule 9(i) can be given than to call
it"the Henry VIII clause". It confers absolute and arbitrary power upon the Corporation and
therefore invalid.

JUDICIAL CONTROL OVER DELEGATED LEGISLATION

Judicial control over delegated legislature is exercised at the following two levels:-

1. Delegation may be challenged as unconstitutional; or

2. That the Statutory power has been improperly exercised.
The delegation can be challenged in the courts of law as being unconstitutional, excessive or
arbitrary.

The scope of permissible delegation is fairly wide. Within the wide limits, delegation is
sustained it does not otherwise; infringe the provisions of the Constitution. The limitations
imposed by the application of the rule of ultra vires are quite clear. If the Act of the

30
W.B. State Electricity Board v. DeshBandhu Gosh (1958) 3 SCC 116.
31
Central Inland Water TransportCorporation Limited v. Brojo Nath Ganguly AIR1986SC1571.

17
Legislature
under which power is delegated, is ultra vires, the power of the legislature in the delegation
can
never be good.No delegated legislation can be inconsistent with the provisions of the
Fundamental Rights. Ifthe Act violates any Fundamental Rights the rules, regulations and
bye-laws framed there undercannot be better.32 Where the Act is good, still the rules and
regulations may contravene anyFundamental Right and have to be struck down. Besides the
constitutional attack, the delegatedlegislation may also be challenged as being ultra vires the
powers of the administrative bodyframing the rules and regulations. The validity of the rules
may be assailed as the stage in twoways:—

(i) That they run counter to the provisions of the Act; and
(ii) That they have been made in excess of the authority delegated by the Legislature.

The method under these sub-heads for the application of the rule of ultra vires is described as
themethod of substantive ultra vires. Here the substance of rules and regulations is gone into
and notthe procedural requirements of the rule marking that may be prescribed in the statute.
The latteris looked into under the procedural ultra vires rule.33When the Court applies the
method ofsubstantive ultra vires rule, it examines the contents of the rules and regulations
without probinginto the policy and wisdom of the subject matter. It merely sees if the rules
and regulations intheir pith and substance are within the import of the language and policy of
the statute.The rules obviously cannot go against the intent of statute and cannot be
inconsistent with theprovisions of the Act. They are framed for giving effect to the provisions
of this Act and not fornullifying their effect and they should not be in excess of the authority
delegated to the rulemaking body. Delegated legislation should not be characterised with an
excessive exercise ofdiscretion by the authority. The rules cannot be attacked to the general
plea of unreasonablenesslike the bye-laws framed by a local body. Reasonableness of the
rules can be examined onlywhen it is necessary to do so for purpose of Articles 14 and 19 of
the Constitution.
The rule of procedural ultra vires provides with a very limited method of judicial control of
delegated legislation Often there are specific saving clauses barring the jurisdiction of the

32
Takwani C.K. (2007) Lectures on Administrative Law. Eastern Book Company, Lucknow.
33
Ibid.

18
courtsto question the validity of rules and orders. For example, Section 16 of the Defence of
India Act,1939 lay down as follows:“34 Saving as to orders-

(1) No order made in exercise of any power conferred by or under this

Act shall be called in question in any Court.

(2) Where an order purports to have been made and signed by any power conferred by or
under
this Act, a Court shall, within the meaning of Indian Evidence Act, 1872, presume that
suchorder was so made by that authority.”Such provisions can only be justified—
(i) On the basis of special circumstances of emergency legislation, and

(ii) On the plea of State necessity.35

Illustrative cases:

Kruse. v. Johnon- It was laid down that a bye-law would be unreasonable if it is found to be
(i)
partial or unequal i.e. its operation as between different classes; (ii) manifestly unjust: (iii)
disclosing bad faith; and (iv) involving such oppressive or gratuitous interference with the
right
of the people that it could find no justification in the minds of reasonable men.

Delhi Laws Act Case:

In this case the power given to the Central Government to repeal pre-existing laws was held
to beultravires.

Chintaman Rao’s Case:

(1951 S.C.I 18) Article 13 has a specific impact upon the validity of all the rules and bye-
laws.
In Chintaman Rao’s case the notification of a Deputy Commissioner prohibiting the
manufactureChadran v. R. (1952) Alld. 793:A rule or bye-law must be within the power
entrusted to the legislature. For example an Act ofthe U.P. State was devised to control the
transport of goods and passengers by ferries and

34
Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56.
35
Bharadvaja B (2007 )Delegated Legislation in India MeenakshiPrakashan New Delhi.

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authorised the Commissioner to make rules for the safety of the passengers and property. But
actually the Commissioner forbade the establishment of private ferries within a distance of
two
miles from another ferry. That rule was struck down.

CONCLUSION
Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate
itspower to other bodies or persons. The statute which delegates such power is known as
EnablingAct. By Enabling Act the legislature, lays down the broad guidelines and detailed
rules areenacted by the delegated authority. Delegated legislation is permitted by the Indian
Constitution.

It exists in form of bye rules, regulations, orders, bye laws etc. There are many factors
responsible for its increase: Parliament and State Legislature are too busy to deal with the
increasing mass of legislations,36 which are necessary to regulate daily affairs. Modern
legislationrequires technicality and expertise knowledge of problems of various fields, our
legislators, whoare politicians are not expected to have such knowledge. Subordinate
legislations are moreflexible, quickly and easily amendable and revocable than ordinary
legislation, in case of failureor defect in its application.

36
Bharadvaja B (2007 )Delegated Legislation in India MeenakshiPrakashan New Delhi.

20
When contingencies arise which were not forceable at the time ofmaking it, subordinate
legislation can pass an act quickly to handle them. Quick, effective andconfidential decisions
are not possible in body of legislatives. So, executives are delegated withpower to make rules
to deal with such situations. These are the main factors, besides manyothers, for the fast
increase in delegated legislation today. Justice P B Mukerjee has stated“Delegated legislation
is an expression which covers a multitude of confusion. It is anexcuse for the legislators, a
shield for the administrators and a provocation to theconstitutional jurists. It is praised as a
necessity and felt as inevitable in our world wheresocial economic technological
psychological and administrative speed outstrips the spaciousand placid traditional legislative
ideals and processes. It is criticized as an abdication ofpower by legislators and an escape
from the duty imposed on them by voters of democracy.In England the king lost the
legislative power at Runnymede and parliament lost legislativeat stampede that followed
since to provide the government for the country throughadministration and bureaucracy”.

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BIBLIOGRAPHY

Cases
A.K. Roy. v. UOI AIR 1982 SC 710. ........................................................................................ 11
Central Inland Water TransportCorporation Limited v. Brojo Nath Ganguly
AIR1986SC1571. ................................................................................................................. 17
Jatindra Nath v State of Bihar AIR 1949 FC 175. ................................................................... 14
King v. Benoari Lal Sharma .................................................................................................... 14
Lachmi Narain v. UOI (1976 2) SCC 95 ................................................................................. 16
Panama Refining Co. v. Rayans ................................................................................................ 9
Queen v. Burah ........................................................................................................................ 13
R.Vs. Birah (1878) 3 AC 889 ..................................................................................................... 7
Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569 ................ 16
Sikkim v. Surendra Sharma (1994) 5 SCC282 ........................................................................... 9
The Delhi Laws Act case, AIR 1951 SC 332 ............................................................................ 8
W.B. State Electricity Board v. Desh Bandhu Gosh (1958) 3 SCC 116 ........................................ 17

Books
Bharadvaja B (2007 )Delegated Legislation in India Meenakshi Prakashan New Delhi. ....... 18
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa
Nagpur .................................................................................................................................. 12
Kumar, Narender; (2011) Nature and Concepts of Administrative Law, 1st Ed., Allahabad
LawAgency, Faridabad. .......................................................................................................... 4
Takwani C.K. (2007) Lectures on Administrative Law. Eastern Book Company, Lucknow. 17
Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University
Press, NewDelhi, 2006.5. ........................................................................................................................... 6

Articles
Cooley's Constitutional Limitations, Volume I at page 224 ...................................................... 4
John Locke, in his Civil Government, article 141 ..................................................................... 6
Montesquieu in his Esprit Des Lois. .......................................................................................... 6
Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56. ............................................................ 13

websites
http://aclawresearch.blogspot.in/2012/12/development-of-delegated-legislation-in.html. .......... 5

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