Delegated Legislation – Exercise of legislative powers by the executive.

The power to do so
is derived from legislative statutes which are Parent Acts that give the Executive rule making
power. Delegated legislation is primarily to enable governance. It has been described as an
excuse for the Legislature, a shield for the Executive and a provocation for Constitutional
Jurists. The question remains however, how much legislation can be delegated and where
does the judiciary draw the line?

Deligatus non potest Deligare – Whatever is delegated once, cannot be further delegated.
This power is given to the legislature and cannot be further given to the Executive.

United Kingdom – Absolute sovereignty of the Parliament and they may delegate if they
wish; United States – Articles 1, 2 & 3 of the Constitution provide for strict separation of
powers though this is not followed in real life; India – In between these two systems.

Article 13 – What is law, for the purpose of judicial review? This Article deals with the nature
of delegated legislation.
Any rule, regulation, by-law, notification or order which has the force of law will be treated
as a law subject to judicial review.
By-laws may be rules or regulations but usually have a specific purpose. An example of
by-laws are those drawn up by Louis Litt in the show, Suits. They are instated for governing
the internal functioning of a firm/company.
Order and notifications may be in the nature of rules and regulations. The Executive is
competent to pass both measures, including judicial orders which mandate compliance with a
particular rule/regulation. Judicial power may be provided to the Executive. An example of
this may be found in the case of Indian National Congress vs Institute of Social Workers.

The advantages or reasons for delegated legislation are: a) They reduce the burden upon the
Legislature; b) The Legislature does not have the expertise to make laws on a particular field;
c) It allows the law to be flexible and change in accordance with necessity, examples such as
the Kejriwal scheme for cars; d) It allows discretion as the laws do not have to be discussed
on the floor of the Parliament; e) It allows for experimentation with the law; f) It becomes
easier to deal with Emergency situations.

UNITED STATES:-

Field vs Clarke – FACTS: Congress passed a law which imposed import duties on the place
where the goods were being imported. The law provided the President the power to suspend
the application of the duty if he deemed it appropriate. An appropriate situation may arise
when there exists a reciprocal duty on the items in the place from where they are being
imported. This was for the purpose of bringing down the price.
ANALYSIS: A challenge was made in the US Supreme Court stating that the granting of the
power to suspend the law upon the President was a violation of SoP. The Court disagreed
stating that the legislative policy had already been laid down by the Legislature and the
President could only act if the specific conditions laid out in the Act were fulfilled.
Therefore: a) this was not a legislative action; b) the Legislative policy had been set up by the
Statute; c) The President’s discretion had been strictly demarcated and restricted. The
President was fulfilling the role of an agent.
Thus this was not delegated legislation at all as the President was not making law and the
conditions according to which he would function had already been provided to him.
However, there was no compulsion on the President to suspend the duty, even if the
conditions were met. It was entirely at his discretion, whether the law would remain
functional at that point.

Panama Refining Company vs Ryan – FACTS: During the Great Depression, the National
Industrial Recover Act was passed. Section 9(c) of the Act authorized the President to
prevent transport of petroleum and oil between states and a violation of the Presidential order
would draw punishment.
ANALYSIS: Considering the unemployment and industrial decay, petroleum companies
hoarded their product which caused inflation and wastage of natural resources. This
necessitated the government providing stimulus, which was the purpose of the law. If the
President felt that a State had gone beyond the quota of hoarding oil, he could restrict
interstate transportation of oil and petroleum to and from the state. The quota was not the
same for all states, however, and the President would have the discretion to decide which
states would have their trade prohibited, even after they surpassed the quota.
The Court differentiated Field vs Clarke by stating that in that instance, the President had to
justify the suspension using the legislative policy. In this instance, the President had
unfettered discretion. Section 9(c) did not bind the President under any conditions apart from
the quota requirement which, itself, is varied. Therefore the condition is not uniform or clear.
J Cardozo – He agrees that excessive delegation must be prevented and the legislative policy
as well as the conditions for exercise of power must be provided by the legislature. The point
of disagreement was that the present instance was not a sufficient condition. The goal of
stopping unfair trade practices, wastage of natural resources and hoarding was a sufficient
condition and the conditions themselves could not be tailored according to what they might
be. The idea of what good conditions are, cannot always be pre-empted by the legislature and
taking such a pedantic view of Separation of Powers would lead to ceasing of all
governmental activity.

From a Functionalist perspective, this erroneous as it prevents the governed from functioning
in a swift and efficient manner during the Great Depression.

National Broadcasting Company vs United States of America – FACTS: Federal

Communications Act granted power to a Commission to make rules and regulations to tailor
radio broadcasting for the purpose of public interest, convenience and necessity. The
broadcasting companies enter into contracts with networks and thereafter enter into
agreements with radio stations. Unfair trade practices were prevalent and the purpose of the
Act was to curtail them by making the radio programs available to all citizens as well as tailor
the programs for public interest and necessity.
ANALYSIS: The Court agreed with J Cardozo’s dissenting opinion stating that even though
the conditions were wide, the legislative policy was clearly set out. In these instances, the
purpose of the Act would be the determinant of whether the rules and regulations made by the
Executive. The Executive would have to the Court how a specific rule was furthering the
legislative policy.
The Principles from this case therefore are: a) There must be a legislative policy; b) In order
to realize it, certain powers are given to the executive but subject to conditions laid out in the
legislation itself; c) Conditions need not be narrowly tailored but must be in conformity and
furtherance of the purpose of the Act.
The mistake in Panama Refining is not repeated in this case, which is during World War II.
However, the principle in that case is not specifically overruled.

UNITED KINGDOM

The abundance of delegated legislation in the late 20th and early 21st century in the United
Kingdom led to the establishment of the Donough More Committee. The purpose was to
determine if delegated legislation could be curtailed.
The recommendations of the Committee were: 1) Identify essential legislative function –
Certain functions which must be performed by the Legislature and cannot be delegated; 2)
Limit of Delegation in the Parent Act – Conditions in the Parent Act should be made narrow
and specific so the Executive cannot exercise power beyond these limitations; 3) Remove
Henry VIII clauses – Clauses which give the Executive special powers when granted certain
rights by delegated legislation, specifically to amend the Parent Act itself; 4) Standing
Committee in parliament which examines the rules made by the Executive in pursuance to an
Act.

INDIA

In Re: Delhi Law Act – FACTS: Advisory jurisdiction under Article 143. Three legislations
were in consideration – a) Section 7 of the Delhi Laws Act, 1912: Provides power to extend
any law, in force in any part of the country, to Delhi. Restrictions and modifications allowed;
b) Section 2 of the Ajmer-Merwara Extension of Law Act, 1915: Allows for a similar
extension to Ajmer-Merwara. Restrictions and modifications allowed; c) Section 2 of Part C
State Laws Act, 1950: Allows any law in force in Part A states to be extended to the Union
Territories. Amendment and repeal of existing law in the Part C state allowed for the purpose
of accommodating the law being imported.

Three questions for consideration: 1) Can there be an extension of law?; 2) Are restrictions
and modifications permissible?; 3) Can the executive be given the power to repeal an Act that
is made by the legislature?
Two cases may be used as precedents: Queen vs Burrah – FACTS: Governor General was
the primary law maker in India. An Act was passed which gave the Lieutenant General the
power to extend the Act from the Garroh to the Khasi hills. It enabled the Lieutenant General
to pass on civil and criminal jurisdiction of the Garroh Hills to an officer appointed by the
Lieutenant General.
Burrah was given a death sentence by the officer appointed by the Lieutenant General.
ANALYSIS: The High Court stated that the power to extend laws cannot be delegated and in
this case, the delegation to the Lieutenant Governor was excessive. The Governor General
already gets power from the British Parliament and is essentially an agent. That power
cannot, therefore, be further delegated by virtue of the principle of Delegatus non poteste
Deliagre.
This was overturned by the Privy Council which stated that the Governor General had
plenary powers and is not an agent of nor is responsible to the British Parliament. The laws
he makes are not discussed or deliberated in Britain. The Governor General may then
delegate the power to the Lieutenant General whose extension of the law to the Khasi hills is
valid.

Federal Court: Jatindra Mohan Gupta vs State of Bihar – FACTS: Bihar Maintenance of
Public Order Act allowed the government of Bihar to extend the life of itself beyond the
prescribed limit in the text of the Statute. While making this extension, the Executive alos
wielded the power to amend the law.
ANALYSIS: The Executive cannot be given the power to extend the life of the law as it
amounted to re-enactment. Re-enactment of a law is an essential legislative function which is
solely within the domain of the Legislature.

In Re: Delhi Laws

Kania states that none of the laws are constitutional. Mahajan concurs
Fazal Ali finds all the laws constitutional. Shastri and Das concur
Mukherjee and Bose hold that repeal and amendment are ESSENTIAL LEGISLATIVE
FUNCTIONS and delegation of such powers cannot be allowed. Thus the Delhi and Ajmer
laws are upheld and the Part C States law was struck down.
The first two questions were answered positively while the third was negative.

Arguments made by the Attorney General on behalf of the State:-

The first argument concerned the lack of an express bar in the Constitution on the delegation
of legislation.
The case of Ramjawaya Kapoor was cited to further the argument that administrative
authorities could take actions without express authorization.

Furthermore there is no strict separation of powers as shown under Article 73 & 162 which is
an example of different organs exercising each other’s powers. However, the Attorney
General refrained from using such an argument as it dealt primarily with administrative
functions and not legislative functions performed by the administration.
The arguments were essentially:- a)A Parliamentary system exists in India where there is an
overlap of functions and there exists no express bar in the Constitution which leads to
separation of powers; b) Deligatus non potus Deligare is inapplicable as the Indian parliament
is not a delagtee of the Indian people. There is no direct control that the people exercise over
the Parliament. The powers of parliament are unlimited and plenary; c) As long as the
legislature wields the power to repeal and amend laws made by the Executive, any powers
can be delegated. The Executive does not exercise legislative power in this instance and no
parallel legislature is formed; d) The power of modification provided to the Executive is
entirely incidental and not substantial. An example of the kind of amendments allowed are,
name of the Act.

Opposing counsel:- a) The power to make laws has been provided exclusively to the
Legislature under the Indian Constitution. There must be an express provision in the
Constitution which allows for delegation, such as in the case of Articles 356 & 357; b) The
Parliament being the elected representative body of the people have been delegated the power
to make laws. Therefore further delegation cannot take place.

CJ Kania – The Indian parliament is not sovereign, as it is in the UK. Within the limitation
provided, the parliament has plenary powers and is not a delegate of the people.
With regard to the parallel provided in Queen vs Burrah, it was not, in fact, delegation of
legislation but conditional legislation. The case of Fields vs Clarke was used to make the
distinction. The power of the Lieutenant Governor in Queen vs Burrah was restricted and
well demarcated. He could not make any new laws and could act only upon fulfilment of a
specific set of conditions.
Delegation of power is not allowed under the constitution and only ascertainment of the
existence of certain facts or conditions is allowed. Conditional Legislation is permissible but
not delegation (Armed Forces Special Powers)

For the abdication test to succeed, it does not need to be total abdication but can also be
partial. Modification can also be used to bring substantial changes to the legislative policy of
the Act. Delegation of legislative power means the power to decide the legislative policy as
well.

Power to legislate does not mean the power to delegate. There is no strict separation of
powers in India but under the Constitutional scheme, it is only in specific instances, where
the Constitution provides, that the Executive may be given the power to make laws. In the
present case, the legislative policy to with regard to several matters are being given to the
Executive.

J Fazal Ali – Parliament cannot be a delegate of the people because there is no

Principal-Agent relationship. There is no direct control that voters have on the acts of
parliament. Therefore there exists no principal-agent relationship in such an equation.
There exists no strict separation of powers in India and even in the US, where strict
separation is provided, delegation is permitted. This has been done to provide necessary
flexibility in governance.
Furthermore if it is accepted that the Legislature is at time inadequate to give effect to the
policy and intention and will have to resort to the Executive to do so, there should not be a
bar on the delegation of legislation.
The only restriction is that the Legislature cannot be permitted to abdicate its functions and
must ensure that a parallel legislature is not effectuated. (Abdication test) As long as the
legislature retains the power to repeal, anything may be delegated.

J Mukherjee – Separation of Powers and DNPD have limited application in the practical
world. J Cardozo in Panama Refining Co. to stated that SOP cannot be followed pedantically
and flexibility must be allowed to provide for necessities of governance. The Indian
Constitution is modelled on the British parliamentary system which has no strict SOP.
It is not a delegate of the people.
It cannot be accepted that the Indian Parliament can delegate its functions because, unlike the
UK, it works under Constitutional Limitations. There is no Parliamentary Sovereignty in
India. The Constitution provides the functions of each organ as well as exceptions such as
that under Article 357.
Delegation can only be ancillary to make laws made by the Legislature effective.
ESSENTIAL LEGISLATIVE FUNCTIONS cannot be delegated as it leads to abdication.
ELF includes laying down a legislative policy and formally enacting the policy into a binding
rule of conduct. The Executive works within those guidelines. The guidelines may be written
in broad and general terms. The Legislature will determine the essential rules while the
subordinate regulations to make it effective are for the Executive.
The first two Acts are intra vires while the Part C States Act is unconstitutional.

This case establishes two essential legislative functions: a) Determination of legislative

policy; b) Repeal and amendment of a law
Restrictions and modification as well as extension of certain Acts are non-essential
legislative functions

Humdard Dawakhana vs Union of India

FACTS: The Drugs and Magic Remedies (advertisements) Act laid down the policy of
preventing advertising of specific drugs and diseases. Section 3 of the Act laid down the
policy goals while Section 16 allowed the Central Government to make rules and regulations
for furthering the objectives under Section 3. The power provided in this case was ancillary
and the legislative framework within which the Executive would work had already been
ascertained. Section 16(3) further provided that when the Central Government came up with a
list of drugs/diseases to prohibit advertising of, the list would be presented before both
Houses of Parliament.

J Kapur – The Broad legislative policy must be laid down and details may be supplied by the
Executive within statutory limits. Definite boundaries are to be set with administrative
discretion exercised within limits.
Despite the holding of J Mukherjee in Delhi Laws, the Court determines that Parliament has
not established sufficient criteria, standards or principles on which a particular disease is to
be included under the Schedule? The facts or circumstances to be considered have not been
mentioned. It must be held therefore that Section 3(d) in providing power to specify diseases
is beyond permissible boundaries.
This represents a form of separation of powers even though it lacks substance.

Therefore, could it be said that Section 8 of the CST Act is similar? The power to fix the rate
of taxation is provided to the Central Government with regard to inter-state trade. The
legislative policy is to fix a central state tax. The basis for providing the tax is not provided
under the Act and while the policy is set out there is no strict guidance or rules laid down on
the basis of which the sales tax rate may be fixed. Providing the Executive the power to fix
the rate of tax contravenes Article 265 which states that tax cannot be levied except as under
the authority of law.

Pandit Banarasi Das Bhanot vs State of Madhya Pradesh

FACTS: Section 6(2) of the Berar Sales Tax of 1947 allowed the State Government to amend
the Schedule which listed the Goods on which Tax could be levied. Section 6(1) stated that
no tax could be levied on the Goods mentioned in the Schedule.

ANALYSIS: J Aiyer – It is not unconstitutional for the Legislature to leave it to the

Executive to determine details relating to working of taxation laws. The Act provides the
legislative policy and the Executive is provided the power to fill in the details by outlining
which persons/goods are to be taxed and at what rate. (THIS IS OBITER)
Article 265 can also include executive made laws. The Executive was, in this instance, being
allowed to decide which items would be taxed and not the rate of the tax itself. It was,
therefore, permissible.
Corporation of Calcutta vs Liberty Cinemas
FACTS: Section 548(2) of the Calcutta Municipal Act, 1951 allowed the Corporation of
Calcutta to charge a fee along with licenses to Cinema Halls at a rate which it may fix from
time to time.

ANALYSIS: J Sarkar – The fee is a tax as it is charged without any specific service in return.
The difference between a tax and fee is that the latter involves a quid pro quo. Delegation of
ELF is not permissible however, Pandit Banarasi Das suggests that fixing a rate of tax is not
an ELF.
Banarasi Das’ case was concerned with what subject matter and persons the tax was to be
imposed and not the rate of tax itself. It is not possible to distinguish between the two on
principle with regard to which is the essence of legislation. If the power to decide who the tax
would be imposed on is not essential, neither will the rate of tax be so.
The Executive is allowed to fill in details regarding taxation, which will include the rate of
tax and the items upon which it will be levied. The right to fix the rate or determine which
items will be taxed must be regulated by sufficient guidance. The purpose of the Act is to
allow the Municipal Corporation to collect revenue for the purpose of meeting several
expenditure requirements. The need of revenue changes from time to time and thus the
discretion to fix the rate of tax has been provided to the Calcutta Corporation. To meet the
needs is sufficient guidance.
This case does not overrule Humdard Dawakhana. The Court states that what constitutes
sufficient guidance will be seen on a case-to-case basis. It will depend on the nature and
purpose of the Act. There are contradictory results however and this leads to the Rule of Law
problem that Joseph Raz had spoken of.
Furthermore, considering that Executive made law comes under Article 265, its function
becomes that of acting as an exception to Articles 73 & 162. The Executive may take action
without the approval of the Legislature except in the case of taxes where a Parent Act must
always be instituted.

Essential Legislative Functions after this case: a) Creation of legislative policy; policy need
not be specific and can be broad or general; b) Repeal and amendment of existing laws.
Non-essential Legislative Functions: a) Extension of a law to different areas; b) Restrictions
and modifications – In Re: Delhi Laws; c) Supplying details for the Act. This includes
taxation, which had initially been thought of as an ELF.
Rules of Valid Delegation
a) There has to be a clear Legislative Policy laid down by the Legislature; b) Sufficient
conditions and guidelines regulating the use of power. Humdard Dawakhana – Conditions
must be narrowly tailored in order to be valid; Calcutta Corporation – The Executive must be
given a degree of flexibility to fulfil the purpose of the Act. The Executive is better placed to
know what is effective. Therefore the purpose of the Act is sufficient guidance and the
conditions need not be specific. The conditions must be determined in a case-to-case basis
and on the basis of the purpose of the Act.

Devi Das Gopala Krishnan vs State of Punjab

East Punjab General Sales Tax Act, 1948
Section 5 – Subject to the provisions of this Act, there shall be levied on the taxable turnover
every year of a dealer a tax at such rates as the Provincial Government may direct.
Section 2 (Amendment Act, 1952; amended Section 5); after the word “rates” the following
will be inserted, namely, ‘not exceeding two piece (percent) in a rupee (maximum limit thus
provided)
J Subba Rao – There are no conditions on the basis of which taxes would be fixed in the
pre-Amendment Act. This is similar to the reasoning in Humdard Dawakhana. The amended
legislation is valid as the area of discretion is narrowed to 2%.

If Calcutta Corporation is an authority for the position that the Legislature can delegate its
power to a statutory authority, it is also an authority for the position that the said statute, to be
valid, must give guidance to the said authority for fixing said rates and the guidance must be
based on specific provisions in the Act. The purpose of Act is insufficient guidance and it
must depend on the provisions of the statute itself.
This case is one of unguided delegation. The Executive may appropriate the legislative policy
itself if sufficient guidelines are not provided. Thus even when there is delegation of NELF,
sufficient guidelines must be provided.
This case, once again, does not overrule anything but merely adds another qualifier to what
constitutes sufficient guidelines.

Gwalior Rayon Silk vs Assistant Commissioner of Sales Tax

FACTS

J Khanna – Legislative policy is to fix the rate of sales tax to a minimum of 10% to avoid
evasion. This is also to dissuade interstate sale of goods to unregistered dealers. Section 8.2
states that the minimum rate of sales tax for interstate goods is 10%. Allowing the Executive
to determine such a tax is not abdication of Legislative power and sufficient guidelines must
be provided for the Executive to fix the rate.

ELF cannot be delegated to determine legislative policy. Only task of subordinate legislation
to fulfil the purpose of the Act can be delegated. The degree of guidance that must be
provided depends on a case to case basis. Legislative policy must not be substituted by the
discretion of individual officers.
The purpose of the Act is to bring uniformity in sales tax around the country. Above 10%, the
State Government is provided discretion to determine the rate of tax. The Central Legislature
is poorly placed to determine what the rate of tax should be. Considering the object of the Act
is to bring uniformity among states as well as to prevent tax evasion, the lack of specific
conditions is still valid.
J Matthew & Ray (Concurring) – Revived the abdication test. Regardless of the amount of
delegation, as long as a parallel legislature is not created, it cannot be invalid. There must be
no provision for amendment or repeal of the Legislation. These two requirements, if upheld,
would render the delegated Legislation valid.
This judgment was effective in terms of bringing about uniformity of law in application as
well as being constitutionally sound.

Rules for Valid Delegation (Updated)

a) Legislative policy must be laid down and may be broad or general. Executive’s function is
ancillary to Legislature’s and for the purpose of effectively implementing the policy; b)
Executive must work within Legislative policy and for this, guidelines must be laid down.
The guidelines need not always be strict and their sufficiency would depend on the Nature
and Object of the Act.

Harishankar Bagla vs State of Madhya Pradesh

Section 3(1) – The Central Government, as far as it appears necessary and expedient for
maintaining or increasing supplies of essential commodities or securing their equitable
distribution and availability at fair prices may provide for regulating or prohibiting
production, supply and distribution thereof and trade and commerce therein
(2) Without prejudice to the generality of powers under Sub-Section (1), an order made may
provide:- (a),(b)
Section 6 – Any order made under Section 3 shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act or any instrument
having effect by virtue of any enactment other than this Act.

Section 6 was challenged on the ground that it have the Executive power to repeal or amend
laws passed by the Legislature. If the objective remains to prevent the Executive tampering
with Legislative policy, there is no difference between In Re: Delhi Laws and the present
case. Section 6 may not specifically remove a law from the books, it acts as a repeal.
CJ Mahajan – Section 6 does not act as a repeal. Even if it were a repeal, Section 6 is a repeal
by the legislature and not the Executive. However this makes every repeal a Legislative one
which amounts to absurdity.
Therefore even though this was not a repeal in form, it was one in substance. This judgment
undermined what In Re: Delhi Laws sought to prevent and left only the determination of
legislative policy as an ELF.

Raj Narain Singh vs Chairman, Patna Administration

FACTS: Section 3(1) of the Patna Administration Act empowered the delegated authority to
pick any section of the Bihar and Orissa Municipal Act, 1922 and extend it to Patna. The
local government and Governor could do so with ‘restrictions and modifications’ it thought
fit.
This is a power of modification provided to the Executive. The power to amend has not been
provided and it is therefore not ultra vires. Any modification are permissible as long as the
legislative policy of the Act is not violated. The Executive is empowered to make two
modifications: a) Which portion of the Act it wishes to import and use in a specific territory;
b) Modification to the portion imported as long as the legislative policy is not violated.
Modifications are merely incidental changes and not a complete amendment.
If modifications which amount to amendment are made, they must be struck down
considering that the power to modify has not even been provided under the Act.

Lachmi Narain vs Union of India

Section 2 of the Union Territories Act, 1950 empowered the Central Government to extend
by notification in the official gazette, to any union territory or any part of it, with such
restrictions and modifications as it thinks fit, any enactment in force in a Part A State.
In 1951, there was an extension of the Bengal Finance (Sales Tax) Act, 1941 to the then
Union Territory of Delhi. This was done with modifications in Section 6.
There is a Schedule in the Act that lists the Goods to be taxed. Amendment of the Schedule
required three months’ notice. This Section was modified by the Central Government and in
1957, six years after its importation, the three month notice was changed to ‘such previous
notice as it considers reasonable.’ Exemptions granted to several commodities were
withdrawn without giving a 3 month notice.
J Sarkaria - There are three limits on the power given under Section 2: (i) The power exhausts
itself on extension of the enactment. It can only be exercised once, simultaneously with
extension of enactment but cannot be exercised repeatedly or subsequently to such extension;
(ii) The power cannot be used for a purpose other than that of extension
Purpose of Section 2 is to allow the Executive to bring about modifications necessary to give
effect to legislative policy behind the Act. Modifications which are ancillary or subservient to
the purpose of extension are impermissible. Only such modifications necessary for
adjustment and adaptation to peculiar local circumstances can be allowed.
Extension itself is a very specific power. Modification is consonant only with power to
extend. Power to amend independent of the act of extension requires statutory backing.
Modification violating purpose of the Act?

Jalan Trading vs Mill Mazdoor Union

FACTS: A Henry VIII clause was inserted in this instance – Also referred to as the removal
of difficulties clause. Legislature provides for such a clause when the Executive may face
hardship in implementing the Act. If the Executive faces difficulty in fulfilling the legislative
purpose of the Act, the Executive is given power to modify the Act.
Section 37(1) of the Payment of Bonus Act empowers Central Government by order to make
provision, not inconsistent with the Purposes of the Act, fore removal of difficulties or doubts
in giving effect to provisions of the Act

J Shah, Wanchoo & Sikri – Delegation of this form is not permissible. The clause allows the
Executive to determine what the purpose of the Act is. Legislative policy must be maintained
and considering that it has not yet been adjudicated upon, the Executive may, through this
provision, gain the power to change or determine what the legislative policy actually is.
Exercise of such a power amounts to usage of Legislative authority which an Executive
authority is debarred from wielding.
This is in contravention of the holding in Raj Narain’s case. It may be said that should the
Executive tamper with the legislative policy, they may be challenged in Court.
J Hidayatullah & Ramaswamy – Delegation is not excessive. The functions exercised are not
legislative functions and are intended to advance the purpose of the Act. The provision is
meant merely to assist in the functioning of the Act and not for subverting the Act itself. Thus
this amounts to a power to modify the Parent Act but not the legislative policy behind it.

Gammon India vs Union of India

FACTS: Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 provides
that if any difficulty arises in giving effect to the Provisions of the Act, Central Government
may make such provisions not inconsistent with provisions of the Act, as appears necessary
or expedient for removing difficulties.
CJ Ray – Compared to Jalan Trading; two reasons in that case were: a) Section 37 authorized
the Government to determine what the Purpose of the Act was; b) Power to remove
difficulties by amendment of the Parent Act would, in substance, amount to exercise of
Legislative Authority
In the present case, neither finality nor alteration is contemplated under Section 34. It is
merely for the purpose of giving effect to the Provisions of the Act. This provision is for the
internal functioning of the administrative machinery.
Thus this is merely a distinction on fact and the point of law in Jalan Trading was not
overruled.

D.N. Ghosh vs Additional Sessions Judge

FACTS: Coal Mines Provident Fund & Bonus Schemes Act, 1948 – Section 3(1) The Central
Government may frame a scheme to be called the Coal Mines Provident Fund Scheme for
establishment of a Provident fund for employees and specify the coal mines to which said
scheme shall apply; (2) Any scheme framed under provisions of Sub-Section (1) may provide
for all or any matters specified in the First Schedule.
Section 9(1): Penalty – Any scheme framed under this Act may provide any person who
contravenes any of the provisions thereof shall be punishable with imprisonment for a term
which may extend to Rs. 1000 or both.
Legislative policy in this case is to compel the mine owners to pay the provident fund. The
Calcutta High Court upheld the Executive Action as a furtherance of the Legislative policy.
There are three ways in which such action may be validated: a) The legislature may lay down
an Act, rules, crimes and punishment; b) The Legislature lays down law, states that a breach
of rules made by the Executive is a crime and states the punishment for the same; c)
Legislature allows the Executive to make rules and allows it to determine if violation of those
rules amount to a crime.