JUDICIAL CONTROL OF DELEGATED LEGISLATION VIS-À-VIS

SEPARATION OF POWER DOCTRINE

Submitted by Submitted to
Shruti Dhoot Dr. Jaswinder Kaur
22097 Asst. Professor of
Law

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

I hereby declare that this project on the topic “Judicial Control Of Delegated Legislation vis-à-vis
Separation of Power Doctrine” submitted to the Rajiv Gandhi National University of Law, Patiala
is an outcome of my original work carried out under the supervision of Dr. Jaswinder. This project is
based entirely on my understanding of the topic and has not been submitted elsewhere. All the ideas
and references have been duly acknowledged. To the best of my understanding, the project is free from
plagiarism.
- Shruti Dhoot (22097)
RGNUL, Punjab
 ACKNOWLEDGEMENT

Apart from my efforts, my project’s success and completion depended largely on others’
encouragement and supervision. I take this as an opportunity to thank the many people without whom
this project would not have been in its current form.
Firstly, I express my gratitude to my university for promoting this kind of Blogposts which help us add
to our skill sets.
My humble thank you to our vice chancellor for steering the university toward a growth-based
curriculum and helping students become proficient in the field.
Further, I would like to thank my Administrative Law Professor Dr. Jaswinder Ma’am who acted as
guiding lights in all stages of this project.
Lastly, I thank my parents and classmates for their emotional support and motivation to pursue my
dreams.
 TABLE OF CONTENTS

TOPIC PAGE NO.

Because the Indian Constitution was framed with the concept of the welfare state in mind, the
government has an obligation under Article 38 of Directive Principle of State Policy 1 to enact
legislations that guarantee social cohesion, fairness, and the wellbeing of people. The ever-evolving
nature of the society has increased its complexity, thereby increasing the already complex nature of
the tasks assigned to the legislature; accordingly, it has grown difficult for both the state legislatures
and parliament alike to address every intricate administrative and legal question that arises. In such a
situation, the technique of delegated legislation has emerged as a practical way to overcome the
limitation and dilemma we face. Delegated legislation is a process of the legislative body giving the
power to enact either to the executive or other administrative bodies, the regulations and rules needed
for enacting laws.2 It accelerates lawmaking, makes it more flexible, and more responsive to the daily
nitty-gritty of running a government-all of which are critical for the effective functioning of an
administration. There are always two sides to a coin thus, it is no surprise that delegated legislation
raises grave legal and constitutional issues, particularly around the theory of the separation of
powers. The doctrine aims to ensure that the legislative, executive, and judicial departments of
government operate in their respective fields of competence and avoid unconstitutional actions by
encroaching in each-others domains. Through legislation, the legislature essentially has the power to
make laws; the executive implements these laws; and the judiciary helps explain the laws and ensures
they are in harmony with the Constitution. The theory of separation of powers would demand that
every branch of government must have its independence of the others so as not to let one branch
dominate the others.3 And because it entrusts this kind of authority to the executive, the practice of
delegated legislation will always blur the line between the legislature and the administration. Such a
potential incursion into the domain of the legislature raises questions of the concentration of power in
the executive organ, which should lead to arbitrary rulemaking and abuse of power. Indeed, under
these conditions, judicial control becomes an important mechanism for ensuring that delegated
legislation does not offend the fundamental principles of the constitution or infringe citizens' rights.
At first blush, the practice of delegated legislation—by which the legislature gives the president or an
administrative authority the right to enact laws—would appear to violate the theory of separation of
powers. The lines of differences seem to be less clear-cut when such powers are vested in the
1
‘Constitutional Law of India - Chapter 14 - Directive Principles of State Policy’ (Manupatra.com2024)
<http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-14.htm> accessed 1
October 2024.
2
PB Mukharji, ‘Delegated Legislation’ (1959) 1 Journal of the Indian Law Institute 465
<https://www.jstor.org/stable/43949623>.
3
Karan Tyagi, ‘The Doctrine of Separation of Powers and Its Relevance in Time of Coalition Politics’ (2008) 69
The Indian Journal of Political Science 619 <https://www.jstor.org/stable/41856450>.
executive to make the law. Still, it is through the judicial check on delegated legislation that the
chances of this conflict can be lessened. The judiciary safeguards the fact that the agencies of
administration exercise their powers strictly upon the Constitution and the legislative enacted
enabling statute. The aim of this project is to understand the various mechanisms of judicial control
and their effectiveness.
JUDICIAL CONTROL MECHANISM

Judicial Review Doctrine is an imperative check on the constitutional structure because judicial
oversight ensures that the powers delegated to administrative bodies remain within their rightful
bounds. The role of the Indian court, therefore, assumes the shape of a watchdog which ensures that
delegated legislation does not overstep the boundaries of both the Indian Constitution and the
enabling act. A strong system of judicial review ensures that laws, policies, or directives made by the
executive are indeed in harmony with principles of natural justice and concurrent with constitutional
requirements. This essentially means the regulatory mechanism will ensure that legislative intent is
met with a non-arbitrary and non-proportionate exercise of delegated authorities. The ultra vires
component deals with the issue of whether the action falls outside the purview of authority, whereas
courts consider the reasonableness of the delegation. The judiciary acts to protect the democratic
framework conceived by the Constitution. It seeks a balance between legislative sovereignty and
delegated authority by holding the executive branch accountable and vacating illegal measures. The
new role of the judiciary upholds the system of division of power even as it confers upon the
executive the flexibility it needs to run the country effectively. The Constitution expressly confers the
Power of Judicial Review on Higher Judiciary (Supreme and High Courts) by virtue of Article 13 of
the Constitution, further Justice Syed Shah Mohammad Quadri in a lecture delivered by him on
"Judicial Review of Administrative Action" 4 had elaborated on the application of judicial review on
three instances: firstly, Judicial review of the amendments of the constitution enacted by the
Parliament. Secondly, Judicial Review of the laws made by Parliament and State Legislatures and
lastly, Judicial review of actions of administrative authorities working under Union and State.
Judicial review in India is very active in the protection of rights at the individual level against the
capricious or excessive use of delegated powers to safeguard constitutional ideals more than just
defending them. Monitoring delegated legislation through courts ensures that the executive does not
overstep the limits of constitutional authority. The role is crucial because, by definition, delegated
legislation is not subject to the same kind of democratic scrutiny in Parliament as laws made by the
legislature are. Therefore, this vigilance of the judiciary acts as a proxy-in careful scrutiny of
substance, procedure, and intent of the delegated legislation to ensure it is serving in furthering public
interest rather than expanding fields of operation. The Supreme Court famously enunciated, in
Keshavananda Bharti v. State of Kerala 5, that judicial review constitutes a part of the "basic structure
doctrine," an immutable norm that can even not be repealed by Parliament. It thereby further
consolidated the role of courts in the protection of constitutional balance by again underlining the
4
"Judicial Review of Administrative Action" (2001) 6 SCC (Jour) 1
5
Keshavananda Bharati v. State of Kerala, (1972) 4 SCC 225; AIR 1973 SC 1461
necessity of judicial review as a check upon the excesses of legislature and executive alike. The
courts make quite wide use of the doctrine of proportionality to examine whether what the executive
is doing is appropriate for the goal that they seek to achieve. This ensures that the rights of citizens
are not unduly restricted in such delegated legislation, particularly on matters concerning
fundamental rights protected under Articles 14, 19, and 21 of the Constitution. Moreover, the courts
ensure that substantive and procedural protections exist in the form of laws and regulations.
Substantive protections are ensured because enacted laws and regulations cannot contradict due
process as created by the enabling statute or the Constitution itself. Similarly, if an enabling statute
sets out procedural standards for delegated legislation to follow, failure to comply with such
standards can cause nullity of the legislation. This came out in the case of Banwari Lal Agarwalla v.
State of Bihar6, wherein the Supreme Court struck down regulations that had been promulgated
without going through the prescribed formal consultation required by the relevant statute. Such
checks ensure procedural propriety and substantive justice in the exercise of delegated authorities. It
is interesting to note that Indian courts have also interpreted ultra vires doctrine actively to refine the
scope of delegation. Courts can declare certain administrative actions as void if they exceed
authorities granted by statute or the Constitution. In the case here, courts are applied to examine
substantive and procedural ultra vires concerned with a situation that delegated authority exceeds its
lawful power while administrative acts violate procedural norms. This way, the courts ensure that
discretion exercised by the executive is checked in that it keeps in balance a quintessential balance
between delegated legislation and the rule of law. The grounds of judicial review were given by Lord
Diplock of England in the case of Council of Civil Service Union v. Minister of Civil Service 7 in
1984 which were essentially but not limited to Jurisdictional Error, Irrationality, Procedural
Impropriety, Proportionality and lastly Legitimate Expectation.

GROUNDS OF REVIEW
6
Banwari Lal Agarwalla v. State of Bihar 1961 AIR 849
7
Council of Civil Service Union v. Minister of Civil Service [1984] UKHL 9
Hon'ble Justice Subba Rao raised an apprehension in that "there is danger that inherently exist in the
power to delegate legislative authority as legislature due to overburden or powerful control of
executive government may not make policy or may delegate arbitrary power to executive or
legislature may confer essential legislative power to executive authority which strictly is not
permissible by the Constitution so the responsibility lies upon the judiciary to check the fairness and
liberally interpret the impugned statute and judiciary should not hesitate to strike down arbitrary
power conferred upon executive.”8 Various landmark decisions of the SC have enshrined the
‘constitutional limits’ of delegated legislation along with the tests for determining whether there is an
‘excessive delegation’ of legislative power. The SC has specified the following circumstances where
a delegated legislation would be invalid:

 The delegated legislation violates any of the fundamental rights or violates any other
provision of the Indian Constitution.

The main reasons why parliament can even be called upon to review delegated legislation include the
cases whereby delegated legislation conflicts with fundamental rights. A legislative measure can be
overruled if, in enforcing its delegated authority, the government enacts laws or policies infringing
rights protected under Part III of the Constitution. For example, in Chintaman Rao v. State of
Madhya Pradesh9, in 1950, the executive rule made illegal during the agricultural season the
manufacture of bidis. This is unconstitutional since it is disproportionate and excessive. In this case,
it has held to breach Article 19(1)(g), which guarantees the freedom to practice any profession or
activity.

 The Rules / Regulations are ultra vires the provisions of the parent Act and fail to
conform to the substantive provisions of the statute.

Such delegated legislation is always required to fulfill the vital requirements of the enabling statute.
The courts have the power to declare rules or regulations formulated under delegated authority ultra
vires (beyond the powers) if they violate the statutory requirements of the parent Act or exceed its
ambit. It is illustrated in Dwarka Nath v. Municipal Corporation10 (1971), where the Supreme Court
declared a statutory rule void as it came under the Prevention of Food Adulteration Act, being more
wider in scope than the parent statute. Similarly, the rules made under MISA, Maintenance of Internal

8
Bharat Vasani, ‘The Rise & Rise of Delegated Legislation – Do We Need More Safeguards?’ (India Corporate
Law6 January 2022) <https://corporate.cyrilamarchandblogs.com/2022/01/the-rise-rise-of-delegated-legislation-
do-we-need-more-safeguards/>.
9
Chintaman Rao v. State of Madhya Pradesh 1951 AIR 118
10
Dwarka Nath v. Municipal Corporation 1971 AIR 1844
Security Act, were declared void in Additional District Magistrate v. Shivkant Shukla11 (1976) as they
were more or less more wider in scope and purport than the parent Act.

 The Executive did not have the legislative competence to frame the said rule or
regulation.

If the executive has the power under the statute to enact the relevant rules or regulations, there would
be another grounds to test the delegated legislation. The legislation would be declared invalid if the
exercise of power by the executive is outside that permitted by the enabling act or indeed if the
transfer of power is unconstitutional at all. The Supreme Court declared some provisions of the
National Security Ordinance in the landmark case of A. K. Roy v. Union of India12 (1982) null and
void contending that the administration had no powers to make laws in matters over which the
legislature had exclusive powers.

 The delegated legislation exceeds the limits of the authority conferred by the enabling
statute.

The judiciary critically examines whether the government has overreached itself in drafting
legislation that is farther than what is allowed by the enabling statute. In the case of State of
Rajasthan v. Basant Nahata13 (2005), the Supreme Court of India found a provision unconstitutional
on account of there being an improper delegation of discretion to the executive in determining
whether transfers of property were legal or not, beyond the legislative intent of the underlying Act.
The court added that when the legislative power delegates powers, it cannot increase what the same is
expressed to perform by the executive.

 A delegated legislation can also be struck down on the ground of manifest arbitrariness,
and unreasonableness.

Courts often strike down the delegated legislation on the ground that it is discriminatory or
unreasonable. The doctrine of reasonableness is fundamental to the Indian constitution in Article 14,
which enunciates the right to equality. Indian courts have always applied the test of unreasonableness
laid down in Lord Russell's case in Kruse v. Johnson14 (1898). In Meenakshi v. University of Delhi15
(1989), a rule requiring two years of schooling in Delhi to be eligible for entry into medical college

11
Additional District Magistrate v. Shivkant Shukla AIR 1976 SC 1207
12
A. K. Roy v. Union of India (1982) 2 SCR 272
13
State of Rajasthan v. Basant Nahata AIR 2005 SUPREME COURT 3401
14
Kruse v. Johnson [1898] 2 QB 91
15
Meenakshi v. University of Delhi 1989 SCR (2) 858
was found to be arbitrary and unreasonable. In the case of Ajay Canu v. Union of India16 (1988), it
was held by the Supreme Court that the rule requiring the rider of motorcycles to wear helmets was
reasonable. The Court therefore reached a conclusion that rules or regulations which are senseless in
regards to the law do not make sense and therefore overruled.

 The delegated legislation cannot provide for a retrospective operation unless expressly
authorised by the parent statute.

Except to the extent that the parent statute so permits, delegated legislation cannot be retrospective.
As ex post facto legislation are forbidden by Article 20(1) of the Constitution, courts have always
remained vigilant that state does not enforce rules retrospectively. In Income Tax Officer v. Mohd.
Kunhi17 (1969), the Supreme Court held that delegated legislation cannot tax retrospectively unless
the enabling Act specially authorizes so.

 A delegated legislation cannot address substantive policy aspects. The SC has held that
the Legislature cannot delegate its ‘essential legislative functions’ to the executive
branch. Further, the determination of the ‘legislative policy’ and its formulation as a rule
of conduct is an essential legislative function, which cannot be delegated to the executive.

The executive branch cannot be given authority over the crucial legislative duties, especially the
creation of substantive policy. This is an important area to review. The legislature cannot escape its
duty to create the legislative policy itself, even while it can assign itself the authority to fill in the
details of the legislation. This is a principle that the courts have consistently upheld. The Supreme
Court established the rule that the legislature should continue to have primary authority over
legislative tasks including formulating policies in the Delhi Laws Act Case18 (1951). Similarly, the
Court reaffirmed the non-delegable nature of key legislative powers in Vasantlal Maganbhai
Sanjanwala v. State of Bombay19 (1961) by emphasising that administrative bodies cannot be given
the authority to enact substantive policy.

16
Ajay Canu v. Union of India 1988 AIR 2027
17
Income Tax Officer v. Mohd. Kunhi 1969 AIR 430
18
Re: The Delhi Laws Act, 1912, AIR 1951 SC 332
19
Vasantlal Maganbhai Sanjanwala v. State of Bombay 1961 SCR (1) 341
ANALYSIS

That delegated legislation and the notion of separation of powers do indeed bear an intricate
relationship relevant to the modern governance is a fact. It raises quite a challenge to the notion of
separation of powers when it allows delegation to permit an executive to do whatever traditionally, or
according to precedent, is supposed to be done by the legislature. On one side, this gives the
executive power to come up with rules that are complex in nature and attend to technical matters of
which the legislature might not have enough time or skills to handle. Judicial control which serves to
act as a curb to ensuring legislation delegated in does not contravene any restrictions of the
constitution and does not encroach on separation of powers. Indeed, judicial oversight is an important
check on the separation of powers, but it should operate in a way that does not fetter the effectiveness
of the executive in completing its tasks.20 The administration of a modern state is faced with intricate
and fast-changing issues demanding administrative accurateness, technical know-how and, at times,
prompt action. Since there is a wide range of its functions, the legislature cannot foresee or regulate
every new issue arising or technical aspect to be considered by the legislation enacted. Delegated
legislation, therefore becomes a readily available means through which the executive can make
comprehensive rules and regulations capable of filling in the gaps left open by main law. The
executive, by delegating, then responds and adjusts to specific situations without constantly making
new legislation. Overbearing judicial intervention may however compromise the flexibility required
by the executive to perform its constitutional functions. For example, while the executive should
have the power to enact and enforce regulations without waiting for formality whenever expedient
regulatory action is needed to prevent or correct financial regulation, health-related matters or
national security issues. It might be too heavy or stringent judicial scrutiny to let it slow down the
ability of the executive to respond and act swiftly and effectively, thereby defeating the purpose of
governance. This balance can be achieved only by the subtle assessment of delegated law by courts. 21
While factoring this balance, courts must take into account a wider context-from the good-faith
nature of the delegation to whether executive action satisfies any legitimate governmental interest
and whether the executive is acting within reasonable bounds, and not on whether each executive
action happens to satisfy legislative intent according to the formal letter of the statute. Whenever the
judiciary is to determine whether a certain executive action is justified with regard to the purpose that
it seeks to achieve, they should also apply the proportionality test. This test would allow the

20
VN Shukla, ‘JUDICIAL CONTROL of DELEGATED LEGISLATION in INDIA on JSTOR’ (Jstor.org2024)
<https://www.jstor.org/stable/43953794> accessed 3 October 2024.
21
Sidney B Jacoby, ‘Delegation of Powers and Judicial Review: A Study in Comparative Law on JSTOR’
(Jstor.org2024) <https://www.jstor.org/stable/pdf/1116754.pdf> accessed 3 October 2024.
executive enough lee way to execute its mandate but does not allow it to act in a way that is unduly
disproportionate to the true purpose of the actions that it intends to carry out.
CONCLUSION

Now, in modern governance, delegated legislation forms an important ingredient of the business of
the executive because it bestows upon that organ the flexibility and efficiency it requires to respond
to the complex, changing circumstances of government. To ensure that the doctrine of separation of
powers, this sacrosanct principle sustained by democratic governance, is not violated, such transfer of
legislative power must be subject to constitutional restraint. The judiciary plays a role in checking the
administration through judicial review, ensuring the right limits of government, that delegated powers
are not abused, and that fundamental rights are preserved. By an ongoing balance between
constitutional protection and effective governance, the supervisory role played by the judiciary
contributes to an ongoing rule of law. Judicial control is essential, but at the same time it should not
unnecessarily curb the executive powers of the state. The judiciary must be checked so that it should
not become an obstacle to the functioning of the executive in passing legislation and acting promptly
on matters that demand emergency steps. Delegated legislation and judicial review complement each
other as efforts towards efficient governance and constitutional accountability. This maintains the
doctrine of separation of powers while allowing the executive the flexibility it requires to manage the
complexities of modern government. Overzealous judicial intervention may make it more difficult for
the administration to handle urgent problems such as national security or health emergencies. Thus,
the judiciary must be blunt and enter the scene only when the actions of the executive clearly violate
constitutional or legal limits. Ultimately, the interface between delegated legislation and judicial
review serves to provide a balance between practicality and accountability in governance. This
dynamic sustains the separation of powers doctrine, so that even with the executive having the means
to govern efficiently it is still not above checks designed to uphold the principles of the constitution,
the rule of law, and the defence of individual rights.
BIBLIOGRAPHY

BOOKS:

1. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur -
Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011.

2. I.P.Massey, “Administrative Law”, Eastern Book Co. 10th edn.,2008

ARTICLES AND BLOGS:

1. Bharat Vasani, ‘The Rise & Rise of Delegated Legislation – Do We Need More Safeguards?’ (India
Corporate Law6 January 2022) <https://corporate.cyrilamarchandblogs.com/2022/01/the-rise-rise-of-
delegated-legislation-do-we-need-more-safeguards/>.
2. ‘Constitutional Law of India - Chapter 14 - Directive Principles of State Policy’ (Manupatra.com2024)
<http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-14.htm>
accessed 1 October 2024.
3. PB Mukharji, ‘Delegated Legislation’ (1959) 1 Journal of the Indian Law Institute 465
<https://www.jstor.org/stable/43949623>.
4. Karan Tyagi, ‘The Doctrine of Separation of Powers and Its Relevance in Time of Coalition Politics’
(2008) 69 The Indian Journal of Political Science 619 <https://www.jstor.org/stable/41856450>.
5. VN Shukla, ‘JUDICIAL CONTROL of DELEGATED LEGISLATION in INDIA on JSTOR’
(Jstor.org2024) <https://www.jstor.org/stable/43953794> accessed 3 October 2024.
6. Sidney B Jacoby, ‘Delegation of Powers and Judicial Review: A Study in Comparative Law on JSTOR’
(Jstor.org2024) <https://www.jstor.org/stable/pdf/1116754.pdf> accessed 3 October 2024.