HIMACHAL PRADESH NATIONAL LAW UNIVERSITY ,

SHIMLA

ADMINISTRATIVE LAW

CONSTITUTIONAL LIMITS OVER DELEGATED LEGISLATION : AN

ANALYSIS IN THE LIGHT OF RELEVANT CASES

SUBMITTED TO SUBMITTED BY
Dr. Alok Kumar Ananya Kalia
Associate Professor 1120202119
Of Law BBA LLB (Hons.)
4th semester

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 ACKNOWLEDGEMENT

It is not possible to prepare a project without the assistance and encouragement of other
people . This one is certainly no exception .

On the very onset of this assignment , I would like to extend my sincere and heartful
obligation towards all the people who have helped me in this endeavour . Without their active
guidance , help, corporation and encouragement , I would not have made headway in the
assignment .

I am ineffably indebted to Dr .Alok Kumar for conscientious guidance and encouragement to

accomplish this assignment . I am extremely thankful and pay my gratitude to him for his
valuable guidance and support on completion of this project in its presently .
I extend my gratitude to Himachal Pradesh National Law University for giving me this
opportunity.

I also acknowledge with a deep sense of reverence , my gratitude towards my parents and
members of my family , who have always supported me .
At last but not least gratitude goes to all of my friends who directly or indirectly helped me to
complete this project .
Any omission in this brief acknowledgement does not mean lack of gratitude .

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 DECLARATION

I , Ananya Kalia , hereby declare that this project titled

Constitutional limits over delegated legislation : an analysis in the
light of relevant cases , is the result of my original research work
conducted under the supervision of Dr. Alok Kumar , Associate
Professor , Himachal Pradesh National Law University , Shimla . In
all the instances where some other work has been cited , full
acknowledgement has been given . This work has never been
submitted , in the whole or in part , in any institution for any
award(s).

NAME OF STUDENT
ANANYA KALIA
DATE -06-05-2022

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 TABLE OF CONTENTS

INTRODUCTION 5

HISTORY OF DELEGATED 7
LEGISLATION

DELEGATED LEGISLATION:POSITION 8
UNDER THE CONSTITUTION OF INDIA

CRITICISMS OF DFELEGATED 9
LEGISLATION

REASONS FOR GROWTH 9

CONSTITUTIONALITY OF DELEGATED 10
LEGISLATION

LEGISLATIVE CONTROL 12

JUDICIAL CONTROL 13

CONSTITUTIONAL LIMIT OVER 15

DELEGATED LEGISLATION

CONCLUSION 18

BIBLIOGRAPHY 19

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 INTRODUCTION

The issue of delegated legislation has been one of the most debated issues in the domain of
legal theory because of its various implications. Scholars have consistently presented
differing and even contradicting views about delegation of power to legislate and have thus
taken different stands on the issue. While Delegated Legislation has been a widespread
practice in modern times and is almost an accepted norm, there have been contrary views.

For instance Cooley has expressed a staunchly critical view of the power to delegate. He has
stated that "One of the settled maxims in constitutional law is that the power conferred upon
the legislature to make laws cannot be delegated by that department to any other body or
authority. Where the sovereign power of the State has located the authority, there it must
remain; and by the constitutional agency alone the laws must be made until the constitution
itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative
has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon
which the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to confide this
sovereign trust.

Further he has also observed that "No legislative body can delegate to another department of
the government, or to any other authority, the power, either generally or specially, to enact
laws. The reason is found in the very existence of its own powers. This high prerogative has
been entrusted to its own wisdom, judgment, and patriotism, and not to those of other
persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it.

While such positions do raise the questions about the propriety of delegating the power to
legislate by higher legislative bodies to the lower ones, the fact remains that this has been a
general practice followed in all modern democratic countries. Hence it is important to
understand what is firstly meant by delegated legislation and then analyse its various aspects.

Meaning of Delegated Legislation-

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

subsidiary legislation) is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary

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legislation. It is law made by a person or body other than the legislature but with the
legislature's authority. Often, a legislature passes statutes that set out broad outlines and
principles, and delegates authority to an executive branch official to issue delegated
legislation that flesh out the details (substantive regulations) and provide procedures for
implementing the substantive provisions of the statute and substantive regulations (procedural
regulations). Delegated legislation can also be changed faster than primary legislation so
legislatures can delegate issues that may need to be fine-tuned through experience.
Legislation by the executive branch or a statutory authority or local or other body under the
authority of the competent legislature is called Delegated legislation. It permits the bodies
beneath parliament to pass their own legislation .It is legislation made by a person or body
other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be 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 make law and rules through delegated legislation.

The legislation created by delegated legislation must be made in accordance with the
purposes laid down in the Act. The function of delegated legislation is it allows the
Government to amend a law without having to wait for a new Act of Parliament to be passed.
Further, delegated legislation can be used to make technical changes to the law, such as
altering sanctions under a given statute. Also, by way of an example, a Local Authority have
power given to them under certain statutes to allow them to make delegated legislation and to
make law which suits their area. Delegated legislation provides a very important role in the
making of law as there is more delegated legislation enacted each year than there are Acts of
Parliament. In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created. There are several reasons why delegated legislation is
important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated
legislation can be amended and/or made without having 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
and it further avoids Parliament having to spend a lot of their time on technical matters, such
as the clarification of a specific part of the legislation. Secondly, delegated legislation allows
law to be made by those who have the relevant expert knowledge. By way of illustration, a

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local authority can make law in accordance with what their locality needs as opposed to
having one law across the board which may not suit their particular area. A particular Local
Authority can make a law to suit local needs and that Local Authority will have the
knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it arises without having
to wait 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
the time 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
situations which 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 subordinate

authority. Rules & regulations which are to be framed by the latter constitutes an integral
portion 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." Most of the enactments provide for the powers for making rules, regulations, by-
laws or other statutory instruments which are exercised by specified subordinate authorities.
Such legislation is to be made within the framework of the powers so delegated by the
legislature and is, therefore, known as delegated legislation. Thus all law making which takes
place outside the legislature expressed as rules, regulations, bye laws, orders, schemes,
directions or notifications etc 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 889. An Act was passed in 1869 by the Indian Legislature to
remove Goro Hills from the civil and criminal jurisdiction of Bengal and vested the powers
of civil and criminal administration in an officer appointed by the Legislative Governor of
Bengal. The Legislative Governor was further authorized by section 9 of the Act to extend

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any provision of this Act with incidental changes to Khasi and Jaintia Hills. By a notification
the Legislative Governor extended all the provisions of the Act to the districts of Khasi and
Jaintia Hills. One Burah was tried for murder by the commissioner of Khasi and Jaintia Hills
and was sentenced to death. The Calcutta High Court declared section 9 as unconstitutional
delegation of legislative power by the Indian legislature. The ground was that the Indian
Legislature is a delegate of British Parliament, therefore, a delegate cannot further delegate.
The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the
constitutionality of section 9 on the ground that it is merely a conditional legislation. The
decision of the Privy Council was interpreted in two different ways.

(i) Indian legislature was not delegate of British Parliament; there is no limit on the
delegation of legislative functions.
(ii) Since Privy Council has validated only conditional legislation. Therefore,
delegation of legislative power is not permissible. So, it did not become clear
whether full-fledged delegated legislation was allowed or only conditional
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 Act for one year with
modification as it may deem fit. The Federal Court held that the power of extension with
modification is unconstitutional delegation of legislative power because it is an essential
legislative Act. In this manner 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 extension of the Act is unconstitutional because according to him it merely
amounted to a continuation of the Act. Later on, it is submitted that the minor view was
correct and the Supreme Court upheld similar provision in another cases.

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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
legislature in matters of delegation of legislative function, the President of India sought the
opinion of the Court under Article 143 of the Constitution on the constitutionality of three
Acts which conferred extension of area and modification power to the executive.

The Delhi Laws Act case, AIR 1951 SC 332, 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.

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
of delegatus non potest delegare 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
essential legislative power that has been expressly vested in it by the constitution.
Essential legislative power 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
legislative power.

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 ,

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 K.N. Wanchoo, the then justice of 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 there is no scope for delegation in law made under Article312…." In the
England, the parliament being supreme can delegated any amount of powers
because there is no restriction. On the other hand in America, like India, the
Congress does not possess uncontrolled and unlimited powers of delegation. In
Panama Refining Co. v. Rayans, the supreme court of the United States had held
that the Congress can delegate legislative powers to the Executive subject to the
condition that it lays down the policies and establishes standards while leaving to
the administrative authorities the making of subordinate rules within the
prescribed limits. Art. 13 (3) Defines law and it Includes ordinance, order, byelaw,
rule, regulation & notification having the force of law. In Sikkim v. Surendra
Sharma (1994) 5 SCC282- 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
proceeds from any authority other than the Sovereign power & is therefore,
dependent for its continued existence & 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. Parliament therefore has a lack of control over delegated legislation
and this can lead to inconsistencies in laws. Delegated legislation therefore has the
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 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 delegated legislation is because of the volume of
delegated legislation made and this result in the public not being informed of the
changes to law. There has also been concern expressed that too much law is made
through delegated legislation.

Reasons for Growth of Delegated Legislation

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.

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 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.

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

legislation.

CONSTITUTIONALITY OF DELEGATED LEGISLATION

Position in India

Pre Independence:

Queen v. Burah wherein 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 as the
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 making laws and
regulations, and may on making such extension direct by whom any powers of duties incident
to the provisions so extended shall be exercised or performed, and make any order which 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
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 time being forms part of British India. It was held that Indian legislators have
plenary powers and it exercised 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
framing of rules and regulations which are to become a part of the law and conferring on

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another body the essential legislative functions which under the constitution should be
exercised by the legislature itself. It also stated that the essential legislative function consists
in the determination or choosing of the legislative policy and formally enacting that policy
into binding rule of conduct.

Also in King v. Benoari Lal Sharma Conditional 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 "this is not delegated legislation at all. It
is merely an example of the not uncommon legislative power by which the local application
of the provisions of a statute is determined by the judgment of a local administrative body as
to its necessity." The privy council held that “Local application of the provision of a state is
determined by the judgment of a local administrative body as to its necessity.” Also the
Federal Court in Jatindra Nath v State of Bihar AIR 1949 FC 175 held that power of
extension with modification is unconstitutional as legislative power cannot be delegated.
Wherein the S. 1 (3) of Bihar maintenance of public order Act, 1948 was challenged – as it
gave power of extension of modification to provincial Govt. but this case But created doubts
on the limits of delegation.

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 in force in any other
part of India, was held intra vires- The case also discussed the validity of the law empowering
the Government to extend to part C States any law in force in a part A state and to repeal
existing laws-- It was held ultra vires under article 143 of the Constitution asking the Court's
opinion on the three questions submitted for its consideration and report. Section 2 of the Part
C States (Laws) Act, 1950, runs as follows :-"Power to extend enactments to certain Part C
States. - The Central Government may, by notification in the Official Gazette, extend to any
Part C 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 part A State at the date of the notification and provision may be made in any enactment

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so extended for the repeal or amendment of any corresponding law (other than a Central Act)
which is for the time 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
the delegation of legislative power and the three particular Acts are selected to raise the
question in respect of the three main stages in the constitutional development of India. The
first covers the legislative powers of the Indian Legislature during the period prior to the
Government of India Act, 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 has got 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 the legislature 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 which is to be enacted into a rule of law, and what can be
delegated in the task of subordinate legislation which by its very nature is ancillary to the
statute which delegates the power to make it. Provided the legislative policy is enunciated
with sufficient clearness or a standard laid down the courts cannot and should not interfere
with the discretion that undoubtedly rests with the legislature itself 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 the legislature is competent to deal
with and legislate on the particular subject-matter. It is in the light of these principles that I
propose to examine the constitutional validity of the three legislative provisions in respect to
which the reference has been made.

In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569 in
which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration to
extend to Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884)
subject to such modification, as it might think fit. The government picked up section 104 and

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after modifications applied it to the town of Patna. One of the essential features of the Act
was the provision that no municipality competent to tax could be thrust upon a locality
without giving its inhabitants a chance of being heard and of being given as opportunity to
object. The sections which provided for an opportunity to object was excluded from the
notification. It was held as amounting to tamper with the policy of the Act.

In Lachmi Narain v. UOI (1976 2) SCC 95. 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

become an important constituent element of legislation, it is equally important to see how this
process of legislation by the executive under delegated powers, can be reconciled with .the
democratic principles or parliamentary control. Legislation is an inherent and inalienable
right of Parliament and it has to be seen that this power is not usurped nor transgressed under
the guise of what is called 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. Desh Bandhu Gosh (1958) 3 SCC 116 it was held that
Regulation 34 of the West Bengal State Electricity Regulation which had authorized the
Board to terminate the Service of any permanent employer on three months notice or pay in
lieu there of. 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 Transport
Corporation Limited v. Brojo Nath Ganguly AIR1986 SC 1571 wherein rule 9 of the service
rules of the CIWTC conferred power to terminate on similar lines as in the case of Desh

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Bandhu 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 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. If
the Act violates any Fundamental Rights the rules, regulations and bye-laws framed there
under cannot be better. Where the Act is good, still the rules and regulations may contravene
any Fundamental Right and have to be struck down. Besides the constitutional attack, the
delegated legislation may also be challenged as being ultra vires the powers of the
administrative body framing the rules and regulations. The validity of the rules may be
assailed as the stage in two ways:—

(i) That they run counter to the provisions of the Act;

(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
the method of substantive ultra vires. Here the substance of rules and regulations is gone into
and not the procedural requirements of the rule marking that may be prescribed in the statute.
The latter is looked into under the procedural ultra vires rule.When the Court applies the
method of substantive ultra vires rule, substantive ultra vires where a decision has been
reached outside the powers conferred on the decision taker it examines the contents of the
rules and regulations without probing into the policy and wisdom of the subject matter. It

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merely sees if the rules and regulations in their pith and substance are within the import of the
language and policy of the statute. Ultra vires is a Latin phrase meaning “beyond the powers

The rules obviously cannot go against the intent of statute and cannot be inconsistent with the
provisions of the Act. They are framed for giving effect to the provisions of this Act and not
for nullifying 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 of discretion by the authority. The rules cannot be attacked to the general plea of
unreasonableness like the bye-laws framed by a local body. Reasonableness of the rules can
be examined only when it is necessary to do so for purpose of Articles 14 and 19 of the
Constitution.

The rule of procedural ultra vires procedural ultra vires where the prescribed procedures
have not been properly complied with. provides with a very limited method of judicial
control of delegated legislation Often there are specific saving clauses barring the jurisdiction
of the courts to question the validity of rules and orders. For example, Section 16 of the
Defence of India Act, 1939 lay down as follows:

“16 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
such order 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.

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 be ultra vires.

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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 manufacture of bee dies during the agriculture season was
invalidated on the ground of its violating Article 19 (1) (g).

Chadran v. R. (1952) Alld. 793: A rule or bye-law must be within the power entrusted to the
legislature. For example an Act of the U.P. State was devised to control the transport of
goods and passengers by ferries and 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.

CONSTITUTIONAL LIMIT OVER DELEGATED LEGISLATION

In India, legislatures have been held to have broad delegation powers in accordance with their
sovereign status. However, this power is subject to constraints. Essential legislative duties
such as determining or choosing a legislative policy and formally enacting that policy into a
binding rule of behaviour cannot be delegated by the Legislature. 'Un analyzed and
uncontrolled power' cannot be delegated by the legislature. The delegation is valid only if the
legislative policy and guidelines for implementing it are sufficiently written out, and the
delegate is only authorised to carry out the policy within the legislative guidelines.

The question, whether any particular legislation suffers from excessive delegation, has to be
decided having regard to the subject matter, the scheme, the provisions of the statute
including its preamble, and the facts and circumstances in the background of which the
statute is enacted.

In 'Pandit Banarasi Das Bhanot V. State of Madhya Pradesh' - 1958 (4) TMI 48 – SUPREME
COURT OF INDIA it was held that the power to tax is a well recognized legislative power,
ample latitude has been allowed to the Legislature to leave to a delegate the power to work
out details of a tax policy. In upholding a power delegated to the State Government for
amending the Schedule relating to exemptions in a Sales Tax legislation, Justice
Venkatarama Ayer observed that it is not unconstitutional for the Legislature to have it to the
executive to determine details relating to the working of taxation laws, such as the selection

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of persons on whom the tax is to be paid, the rates at which it is to be charged in respect of
different classes of goods and the like.

In 'Harishankar Bagla V. State of Madhya Pradesh' - 1970 (2) TMI 131 - SUPREME COURT
OF INDIA the Supreme Court held that while sustaining the legality of section 3 of the
Essential Supplies (Temporary Powers) Act, 1946, which gave wide powers to the Central
Government to make orders for regulating or prohibiting the production, supply and
distribution of essential commodities, was satisfied that it had laid a clear principle and
offered sufficient guidance. It was held that the power conferred by the section therein is to
be exercised for maintaining or increasing supplies of any essential commodity, or for,
securing their equitable distribution and availability of fair prices.

The Constitution Bench of Supreme Court in Kishan Prakash Sharma V. Union of India' -
2001 (3) TMI 1018 - SUPREME COURT the Supreme Court laid down the test of
constitutional limit of delegated legislation. The Supreme Court in this case held that the
Legislature must set the limits of the power delegated by declaring the policy of the law and
by laying down standards for guidance of those on whom the power to execute the law is
conferred. Thus the delegation is valid only when the legislative policy and the guidelines to
implement it are adequately laid down and the delegate is only empowered to carry out the
policy within the guidelines laid down by the Legislature. The Legislature may, after laying
down the Legislative policy, confer discretion on an administrative agency to work out the
details within the frame work of the policy. When the Constitution entrusts the duty of law-
making to Parliament and Legislatures of the States, it impliedly prohibits them to throw
away that responsibility on the shoulders of some other authority. An area of compromise is
that Parliament cannot work in detail the various requirements of giving effect to the
enactment and, therefore, that area will be left to be filled by the delegatee.

The Supreme Court in State of Rajasthan V Basant Nahata: - 2005 (9) TMI 620 - SUPREME
COURT, held that the necessity of the Legislature's delegating its power in favor of the
executive is a part of legislative function. It is a constituent element of the Legislative power
as a whole under article 245 of the Constitution. Such delegation of power, however, cannot
be wide, un analyzed or unguided. The Legislature, while delegating such power is required
to lay down the criteria or standard so as to enable the delegate to act within the framework of

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the statute. The principle on which the power of the Legislature is to be exercised is required
to be disclosed. It is also trite that essential legislative functions cannot be delegated. The
procedural powers are, therefore, normally left to be exercised by the executive by reason of
a delegated legislation.

There cannot be any doubt whatsoever that the court shall not invalidate a legislation on the
ground of delegation of essential legislative function or on the ground of conferring
unguided, uncontrolled and vague powers upon the delegate without taking into the preamble
of the Act as also other provisions of the statute in the event they provide good means of
finding out the meaning of the offending statute.

The Supreme Court in Delhi Race Club Limited V. Union of India' - 2012 (Z) TMI 498 –
SUPREME COURT OF INDIA held that there two broad principles in delegation of
legislative functions:

• that delegation of non essential legislative function of fixation of rate of imposts is a

necessity to meet the multifarious demands of a welfare State but while delegating such a
function laying down of a clear legislative policy is pre requisite; and

• while delegating the power of fixation of rate of tax, there must be in existence, inter alia,
some guidance, control, safeguards and checks of the Act concerned.

It is manifest that the question of application of the second principle will not arise unless the
impost is a tax. Therefore, as long as the legislative policy is defined in clear terms, which
provides guidance to the delegate, such delegation of a non essential function is permissible.

In 'Holystar Natural Resources (P) Limited V. Union of India' - 2014 (1) TMI 1639 - DELHI
HIGH COURT it was contended that Section 2(1)(0) of SARFAESI Act was violative of
Article 19(1 (g) of the Constitution of India as it gave uncontrolled discretion and arbitrary
power in the hands of financial institutions/RBI to declare any entity as an NPA. Under the
SARFAESI Act, the borrower had a very limited to right to question the proceedings and the
consequences provided in the Act were drastic. Consequently, by empowering the
banks/financial institutions/RBI to determine what NPA is, there had been a disastrous effect
on business, profession and trade of the borrowers. The court analyzed the provisions of
Section 2(1)(o) of the Act which defines NPA as an asset or accountable receivable of a
borrower, which has been classified by banks or financial institutions in terms or RBI

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guidelines as sub standard, doubtful and loss asset. Clause 4.1 of RBI guidelines classifies
NPA into the above three categories. Once the account finds place in any of these categories,
it becomes an NPA with respect to clause 2.1 RBI guidelines. The classification is done
taking into account the degree of well defined credit weakness and extent of dependence on
collateral securities for realization of dues. The Legislature has left it to RBI to identify,
define and classify different assets in accordance with the current international best practices
as well as the changing economic scenario of the country. The Court is of the opinion that the
Legislature has defined NPA and the RBI issued guidelines to improve quality of assets of
the bank and to recover public money speedily. There is no excessive delegation or scope for
the banks to act upon basing on their whims and fancies, but they are governed by the
guidelines issued by the RBI which is empowered to issue such guidelines under Section 21
of Banking Regulation Act, 1949.

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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
its power to other bodies or persons. The statute which delegates such power is known as
Enabling Act. By Enabling Act the legislature, lays down the broad guidelines and detailed
rules are enacted 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, which are necessary to regulate daily
affairs. Modern legislation requires technicality and expertise knowledge of problems of
various fields, our legislators, who are politicians are not expected to have such knowledge.
Subordinate legislations are more flexible, quickly and easily amendable and revocable than
ordinary legislation, in case of failure or defect in its application. When contingencies arise
which were not forceable at the time of making it, subordinate legislation can pass an act
quickly to handle them. Quick, effective and confidential decisions are not possible in body
of legislatives. So, executives are delegated with power to make rules to deal with such
situations. These are the main factors, besides many others, 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 an excuse for the legislators, a shield for the administrators and a
provocation to the constitutional jurists. It is praised as a necessity and felt as inevitable in
our world where social economic technological psychological and administrative speed
outstrips the spacious and placid traditional legislative ideals and processes. It is criticized as
an abdication of power 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 legislative at stampede that followed since to provide the government for the country
through administration and bureaucracy

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 BIBLIOGRAPHY
1. www.legalservicesindia.com/article Doctrine Of Permissible Limits under Delegated
Legislation. ... under the Indian Constitution: of India
2. www.shareyouressays.com The Judicial Control over Delegated Legislation in India and
Delegated legislation
3. www.scribd.com Delegated legislation
4. books.google.co.in/books/about/Delegated legislation Delegated Legislation in India, US
and England
5. www.persmin.gov.in *Role of the Constitution and administrative Law,
6. aclawresearch.blogspot.com Development of delegated legislation in India
7. www.lawyersclubindia.com/articles Delegated Legislation in India
8. elearning.vtu.ac.in/P3/CIP71/3.pdf Delegated Legislation
9. www.napsipag.org/pdf/Dr.M.shamsur_rahman.pdf. The delegated legislation
10. http://www.grkarelawlibrary.yolasite.com/

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