INTRODUCTION TO DELEGATED LEGISLATION ( CONTROLS AND SAFEGUARDS)

DELEGATED
LEGISLATION
ADMINISTRATIVE LAW

INTRODUCTION TO DELEGATED LEGISLATION

( CONTROLS AND SAFEGUARDS)

Mosammat Roksana Akter

2nd year Law student of BGC Trust University Bangladesh

Key Words: Delegated Legislation ( Controls and Safeguards)

INTRODUCTION
According to the traditional theory, the function of the executive is to administer the law enacted by the legislature,
and in the ideal State, the legislative power must be exercised exclusively by the legislators who are directly
responsible to the electorate. In England, theoretically it is only Parliament which can make laws. Looking to the
legislative process, however, it is really the Government which makes the laws subject to parliamentary control.

Even in the United States of America, where the doctrine of delegated legislation has not been accepted in theory
under the doctrine of Separation of powers,in practice the legislature has entrusted legislative powers to the
executive. In India, during 1973 to 1977, Parliament enacted about 300 statutes, but total number of statutory
rules and orders reached more than 25,000.

At the same time, there is inherent danger of abuse of the said power by executive authorities. The basic problem,
therefore, is that of controlling the delegate in exercising his legislative powers. Today the question is not whether
delegated legislation is desirable or not, but what controls and safeguards can and ought to be introduced so that
the rule-making power conferred on the Administration is not misused or misapplied.

1
 (Supreme Law)

Parliament

(Government/Judicial/Precedent)

Law Rules and

Regulation
(Delegated)

DEFINITION
Delegated legislation refers to those laws made by persons or bodies to whom parliament has
delegated law-making authority. Where Acts are made by parliament, each principal Act makes
provision for subsidiary legislation to be made, and will specify who has the power to do so under
that Act. Delegated legislation can only exist in relation to an enabling Act. Delegated legislation
contains the many administrative details necessary to ensure that the provisions of the Act will
operate successfully. Regulations and Statutory Rules are the most common forms of delegated
legislation. They are made by the executive or a minister and apply to the general population.

According to Jain and Jain, the term 'delegated legislation' is used in two senses: (i) exercise by
a subordinate agency of the legislative power delegated to it by the legislature, or (ii) subsidiary
rules themselves which are made by the subordinate authority in pursuance of the power conferred
on it by the legislature.

According to Salmond, legislation is either supreme or subordinate. Whereas the former proceeds
from sovereign or supreme power, the latter flows from any authority other than the sovereign
power, and is, therefore, dependent for its existence and continuance on superior or supreme
authority.

2
JUDICIAL SAFEGUARDS
Controls over the delegated legislation may be divided into three categories:
 Judicial control
 Legislative control, and
 Other controls

JUDICIAL CONTROLS
Delegated legislation does not fall beyond the scope of judicial review and in almost all the
democratic countries it is accepted that courts can decide the validity of delegated legislation
mainly applying two tests or on the basis of two grounds. They are-
(a) Substantive ultra vires and
(b) Procedural ultra vires.

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

SUBSTANTIVE ULTRA VIRES

Substantive ultra vires mean that the rulemaking authority has no substantive power under the
empowering act to make rules in question. This would include for example acting beyond what
is authorized. Substantive ultra vires includes the following cases: Exercising power in excess of
statutory limits; Acting in excess of jurisdiction; Breach of the principles of natural justice;
When a subordinate legislation goes beyond, what the delegate is authorized to enact, it in known
as substantive ultra vires.

A delegated legislation may be held invalid on the ground of substantive ultra vires in the
following circumstances:
(i)Where parent Act is unconstitutional;
(ii) Where parent Act delegates essential legislative functions;
(iii) Where delegated legislation is inconsistent with parent Act;
(iv) Where delegated legislation is inconsistent with general law;
(v) Where delegated legislation is unconstitutional;
(vi) Unreasonableness;
(vii) Mala fide: Bad faith;
(viii) Sub-delegation;
(ix) Exclusion of judicial review;
(x) Retrospective effect; 3
(i)Where Parent Act is unconstitutional:
For delegation to be valid, the first requirement is that the parent Act or enabling statute by which
legislative power is conferred on the executive authority must be valid and constitutional. If the
delegating statute itself is ultra vires the constitution and is bad, delegated legislation is
necessarily bad.
Indian case reference:
In Naga People's Movement of Human Rights v. Union of India, the constitutional validity of
the parent Act [Armed Forces (Special Provisions) Act, 1958] was challenged inter alia on the
ground that it conferred arbitrary and unguided power on the executive in the matter of declaration
of an area as 'disturbed area'. The Supreme Court, however, negatived the contention observing
that before declaration of any area as 'disturbed area' there must exist a grave situation of law and
order on the basis of which an opinion can be formed. The Act, hence, cannot be held ultra vires
Article 14 of the Constitution.
Bangladesh case reference:
In the case of Anwar Hossain Chowdhury vs. Bangladesh (1989), the Supreme Court of
Bangladesh upheld the supremacy of the Constitution, ruling that the Parliament cannot alter its
basic structure. This landmark judgment established the doctrine of the basic structure in
Bangladesh's constitutional law.

(ii)Where parent Act delegates essential legislative functions:

It is well settled principle of Administrative Law that primary and essential legislative functions
must be performed by the Legislature itself and they cannot be delegated to any other organ of
the State. If any essential legislative function is delegated, the same will be struck down.
Indian case reference:
Delhi Laws Act, 1912 (1951) The supreme court of the India held that the legislature ean delegate
power to make rules on regulations but not the essential legislative function. A.K. Roy v. Union
of India (1782) The court clarifed that delegation must not include the power to repeat or
substantially alter the primary law.
Bangladesh case reference:
Aminul Islam v. Bangladesh (1070 BLD 138) the supreme court of Bangladesh held that any
action violating constitutional safeguards and fundamentar right is ivalid. The court emphasized
the importance of protecting individual liberties against arbitary state actions.

4
(iii)Where Delegated Legislation is Inconsistent with the Parent Act:
When the delegated legislation is found to be directly or indirectly in conflict or inconsistent with
the provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent
Act. Validity of delegated legislation can be challenged on the ground that it is ultra vires the
parent Act or enabling statute. The delegated authority must be exercised strictly within authority
of law i.e. parent legislation.
Indian case reference:
In Municipal Corpn. of Greater Bombay v. Nagpal Printing Mills, the parent Act empowered the
corporation to levy charge only in respect of water supplied to and consumed by the consumer.
The rule, however, authorised levy of charges on the basis of minimum quantity irrespective of
consumption. The Supreme Court held the rule ultra vires and inconsistent with the parent Act.
In Supreme Court Employees' Welfare Assn. v. Union of India, the Supreme Court, after referring
to a number of leading cases, observed: "Where the validity of a subordinate legislation (whether
made directly under the Constitution or a statute) is in question, the court has to consider the
nature, objects and the scheme of the instruments as a whole, and, on the basis of that examination,
it has to consider what exactly was the area over which, and the purpose for which, power has
been delegated by the governing law." In other words, the doctrine of 'pith and substance' which
is applicable to Parliamentary Acts is applicable to delegated or subordinate legislation also.
Bangladesh case reference:
Md. Golam Rahaman v. Bangladesh (1991) BLD 25. The court held that administrative actions
must adhere to the principles of natural Justice.

(iv) Where delegated legislation is inconsistent with general law

A subordinate legislation, apart from being intra vires the Constitution and consistent with the
parent Act, must also be in consonance with general law, i.e. any other law enacted by the
Legislature. Delegated legislation cannot be contrary to the law of land.
Indian case reference:
Hindustan Times V. State of U.P. Parliament by an Act provided pension to working journalists.
The state government, by executive instruction s imposed levy on government advertisements on
newspaper and deducted such levy from pension fund of working journalists. The directive of the
state government was held beyond legislative competence and ultra vires to the constitution.
Bangladesh case reference:
In Government of Bangladesh v. Asaduzzaman Siddiqi (2016) the Appellate Division of
the supreme court of Bangladesh upheld the constitutionality of the 16th Amendment to the
constitution.

5
(v)Where delegated legislation is unconstitutional:
Sometimes a parent Act or delegating statute may be constitutional and valid delegated legislation
may be consistent with the parent Act, yet the delegated legislation may be held invalid on the
ground that it contravenes the provision of constitution. If the delegated legislation is found to be
violative of Articles 14, 19(1) (g) and 21, it will be struck down as invalid. There is a possibility
that the parent Act is constitutional, a delegation of legislation is also as per the parent Act, but
the rules and regulations made through the delegated legislation are not as per the provisions in
the Constitution.
Indian case reference:
Narendra Kumar v. Union of India . In that case, the validity of the Non-Ferrous Metal Control
Order, 1958 issued under Section 3 of the Essential Commodities Act, 1955 was challenged as
unconstitutional. The petitioners had not challenged the validity of the parent Act. It was argued
that if the enabling Act was not considered unconstitutional, the rules made thereunder could not
be held to be unconstitutional. In Air India v. Nergesh Meerza, a regulation framed by Air India
providing that services of an Air Hostess could be terminated if she became pregnant was held
arbitrary, unreasonable and violative of Articles 14 and 15 of the Constitution.
Bangladesh case reference:
The case khandker modarresh Elahiv. Bangladesh (2002 BLD 41) emphasized that the
fundamental rights guaranteed under the constitution of Bangladesh must be upheld and cannot
be curtailed arbitrarily.

(vi) Unreasonableness:
When the delegated legislation is found unreasonable and arbitrary, it is declared invalid. The
delegated legislation may be challenged on the ground of unreasonableness and arbitrariness.
Law of England: It is well settled that the byelaws made by corporations and other local bodies
may be declared as ultra vires on the ground of unreasonableness. This rule is based on a
presumed intention of the legislature that the common law allows them to make only reasonable
byelaws. Law of USA: The validity of a regulation can be sustained only if it is reasonably related
to the purpose of the enabling legislation. Law of India: The same principle has been accepted in
India also.
Indian case reference:
An Indian Express Newspapers v. Union of India, 69 the Apex Court ruled that subordinate
legislation does not enjoy the same degree of immunity as substantive legislation enjoys.
'Unreasonableness' is one of the grounds of judicial review available to test validity of delegated
legislation. If a delegate intends to impose a condition, which is unreasonable, it cannot be held
legal or valid.

6
Bangladesh case reference:
In state v. Nurul islam (1786 BLDF) the court held that a confession obtain under inducemen
threat on promise is inadmissible as evidence. The Judgment reinforced the priniple of ensuring
the voluntariness of confessions of protect the right of the accused ensuring the voluntariness of
confessions of protect the right of the accused.
(vii) Mala fide: Bad faith:
When the subordinate or delegated legislation is made by the administrative authority exercising
its power mala fide or with an ulterior motive, It is held to be ultra vires and, therefore, invalid.
It is well selected that an Act passed by the competent legislature cannot be questioned in the
Court on the ground that the same was passed Mala fide or with improper motive.
Indian case reference:
Again, in B.D. Gupta v. State of U.P. 89 the Court stated; "It is well-settled that no legislation
can be challenged on the ground of mala fides". In Narendra Kumar v. Union of India, 84 the
Apex Court stated: "Mala fides hae not been suggested and we are proceeding on the assumption
that the Cetral Government was honestly of the opinion that... "85 (emphasis supplied) From the
observations, inference may be drawn that in a given case, a court offlaw may hold exercise of
power to be mala fide.
Bangladesh case reference:
In Nazir Ahmed V. Bangladesh (1792 BLD 201) the court held that any executive action on
legislation that conflicats with the constitution is void and unenforceable. This ease reinforced
the principle of constitutional supremacy in Bangladesh.

(viii) Sub-delegation:
Sub-delegation can be divided under three sub-heads:
(a) Sub-delegation of legislative power;
(b) Sub-delegation of judicial power;
(c) Sub-delegation of administrative power;

(a) Sub-delegation of legislative power:

a delegate cannot further delegate applies to delegated legislation also and it is not possible for
the delegate to sub-delegate the power conferred on him unless the parent Act authorises him to
do so either expressly or by necessary implication.In sub-delegation these limits are prescribed
by the Parent Act which is given below:
(i) If the Parent Act permits sub-delegation to officers or authorities not below a particular rank,
then the power can be delegated only to those officers or authorities.
(ii) The sub-delegate cannot act beyond the power conferred on him by the delegate.
(iii) If some conditions are imposed by the delegate, who must be compiled with by sub-delegate
before the exercise of power, these conditions must be fulfilled, otherwise exercise of power will
be ultra vires. 7
(b) Sub-delegation of judicial power: It is well established that a judicial or quasi judicial power
conferred on a particular authority by a statute must be exercised.
(c) Sub-delegation of administrative power:
In certain circumstances and on certain conditions, administrative power can be sub-delegated.
Indian case reference:
In Blackpool Corpn. v. Locker, under the Defence Regulations, 1939, the Minister was
empowered to take possession of land. By issuing circulars, he sub- delegated this power to the
Blackpool Corporation, as was within his powers. The circulars contained certain conditions and
one of them was that furniture should not be requisitioned. The corporation requisitioned the
plaintiff's dwelling house with furniture. The Court of Appeal held the impugned action ultra
vires since it went beyond the power conferred by the Minister on the Corporation.
Bangladesh case reference:
In Bangladesh v. Md Abdul mannan (2000 BLD55), the count held that an application for setting
aside an ex part decnee under onder ix Rule 13 of the epe must be accompanied by a satisfactory
explantion for the defendant's absence without adequate ease cause the application is liable to be
rejected.

(ix) Exclusion of judicial review:

The rule of law has always recognised power of judiciary to review legislative and quasi-
legislative acts. The validity of a delegated legislation can be challenged in a court of law. As
early as 1877 in Empress v. Burah, the High Court of Calcutta had declared Section 9 of Act XXII
of 1869 ultra vires. Though the decision of the Calcutta High Court was reversed by the Privy
Council, neither before the High Court nor before the Privy Council it was even contended that
the court had no power of judicial review and, therefore, cannot decide the validity of the
legislation. Sometimes, however, attempts are made by the legislature to limit or exclude Judicial
review of delegated legislation by providing different modes and methods:
(a) Finality clauses:
Sometimes, Provisions are made in a statute by which the orders passed by administrative
tribunals or other authorities are made final. This is known as "Statutory finality".
(b) Conclusive evidence:
One way of excluding Judicial scrutiny has been notice in extending special prabative
force to certain administrative actions.
(c) Shall not be called in question :
Modern legislation has adopted itself to the wide variety of remedies available
in administrative law, and has evolved a comprehension provision that the act.
(d) As if enacted in the Act:
he underlying object of this ancient formula is to protect all rules, regulations
or notifications issued under the Act which are in the nature of delegated legislation.
8
 (e) Omnibus Curative clause:
At times, a parent statute prevents an act done taken merely on the ground of irregularity
not affecting the merits of the case. Such clause is described as "Omnibus curative clause"
Indian case reference:
In State of Kerala v. Abdulla, 43 a contention that Rule 14-A of the Madras General Sales Tax
Rules, 1939 cannot be challenged in view of the provisions of Section 19 of the Madras General
Sales Tax Act, 1939 was negatived by the Supreme Court. The leading case on the point is
Anisminic Ltd. v. Foreign Compensation Commn. 28 It shows how an ouster clause can have no
effect whatsoever.
Bangladesh case reference:
Anwar Hossain Chowdhury v. Bangladesh (1989) also known as the Eight Amendment case,
emphasized the importance of Judicial review as a basic feature of the Constitution.

(x) Retrospective effect:

Sometimes a delegated authority while making subordinate legislation tries to give retrospective
effect to rules. However, the delegated authority cannot use this power as the sovereign
legislature, unless the concerned Statute expressly or by necessary implication confers power in
this behalf. Delegated legislation cannot be in retrospective in operation unless specific power
was conferred by the parent Act.
Indian case reference:
leading case of B. S. Yadav v. State of Haryana, the Supreme Court rightly observed "It should
also be realised that giving retrospective effect to the rules creates frustration and discontentment
since the just expectations of the officers are falsified Settled seniority is thereby unsettled, giving
rise to long drawn-out litigation between the promotees and direct appointees. That breeds
indiscipline and draws the High Court into the arena, which is to be deprecated."
Bangladesh case reference:
In Md. shamsul Huda v. Bangladesh (1970), the court held that delegated legislation, could not
retrospectively after rights or obligations.

9
PROCEDURAL ULTRA VIRES
Definition:
When a subordinate legislation fails to comply with certain procedural requirements prescribed
by the Parent Act, it is known as procedural ultra vires. (while forming rules, bye-laws,
regulations etc) the Parent Act or enabling statute may require the delegate to observe a prescribed
procedure such as holding of consultations with particular bodies or interests, publication of draft
rules of bye-laws, laying then before the parliament etc. The following two procedural
requirements available in delegated legislation.They are:
(i) Consultation; and
(ii)Publicationn;

(i) Consultation:
An important to check and control the exercise of legislative power by the executive in the
technique of consultation through affected interest may participate in the rule-making process.
The term "consult" implies a conference of two or more persons in order to enable them to evolve
a correct or at least satisfactory solution of a problem. It is a proces which requires meeting of
minds between the parties to consultation on material facts to come to a right conclusion.

(ii)Publication:
It is a fundamental Principle of law that "Ignorance of law is no excuse", (ignorantia juris non
excusat). But there is also another equally established principle of law that the public must have
access to the law and they should be given an opportunity to known the law. Sometimes parent
Act provides that after framing the draft, that draft must be published. Publication is very
necessary for awareness of rules regularities.

CONCLUSION
Understanding these two types of Ultra vires is crucial for ensuring that public authorities act
within their legal boundaries and follow proper procedures. This helps maintain the rule of law
and protees individuals from arbitrary or unlawful actions by the state. It is therefore important
to have a clear understanding of the limits and scope of Judicial power and to ensure that courts
exercise their legislative function responsibly and in accordance with the rule of law.

10
REFERENCE
 Administrative Law Book: C.K Takwani
 Administrative Law Book: Dr. Md Shahidul Islam
 The Doctrine of Substantive Ultra Vires in Indian Administrative Law
https://www.lawteacher.net;
 Substantive Ultra Vires
https://thelegalquotient.com;
 Delegated Legislation-Controls and Safeguards: Presented By: Rupendra Singh
https://www.scribd.com;
 Indian case reference:
 In Naga People's Movement of Human Rights v. Union of India,
 Delhi Laws Act, 1912 (1951),
 In Municipal Corpn. of Greater Bombay v. Nagpal Printing Mills,
 Md. Golam Rahaman v. Bangladesh (1991) BLD 25,
 Hindustan Times V. State of U.P.
 Narendra Kumar v. Union of India ,
 An Indian Express Newspapers v. Union of India, 69,
 Again, in B.D. Gupta v. State of U.P. 89,
 In Blackpool Corpn. v. Locker
 In State of Kerala v. Abdulla, 43,
 leading case of B. S. Yadav v. State of Haryana,
 Bangladesh case reference:
 In the case of Anwar Hossain Chowdhury vs. Bangladesh (1989),
 Aminul Islam v. Bangladesh (1070 BLD 138),
 Md. Golam Rahaman v. Bangladesh (1991) BLD 25,
 In Government of Bangladesh v. Asaduzzaman Siddiqi (2016)
 The case khandker modarresh Elahiv. Bangladesh (2002 BLD 41)
 In state v. Nurul islam (1786 BLDF),
 In Nazir Ahmed V. Bangladesh (1792 BLD 201)
 In Bangladesh v. Md Abdul mannan (2000 BLD55),
 In Md. shamsul Huda v. Bangladesh (1970),

11