“DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN ANALYTICAL STUDY”

DISSERTATION TOPIC: “DELEGATED LEGISLATION & ITS

JUDICIAL CONTROL : AN ANALYTICAL STUDY”

Submitted To:

Dr. Axita srivastava

Assistant Professor, Amity Law School
Submitted By:

Shalini

ENROLLMENT NO:A8101820236

Programme: LL.M. (Master of Laws), Batch: 2020-21

( Constitutional law)

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ACKNOWLEDGEMENT

Expressing gratitude is a pleasant but difficult job when one sincerely tries to put them in words. To
list them all is not practicable, even to repay them in words is beyond the domain of my lexicon.

I am highly indebted to Dr. Axita Srivastava mam, our Professor and Guide of the Dissertation for
firstly, allowing me to take this topic just on the ground that I have interest in the topic, secondly, for
providing me outstanding assistance at every step of my preparation of this project. I am extremely
thankful to her for her constructive criticism and helpful suggestions. Her constant encouragement
helped me to work harder.

I would also in cryptic gratitude toward my parents who ensure my capabilities and raise my
confidence, also maintain mental and physical balance

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“DELEGATED LEGISLATION & ITS JUDICIAL

CONTROL : AN ANALYTICAL STUDY”

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.

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AIM
This project aims to critically analyse the current Delegated Legislation and its judicial control.

AIMS:

 To critically analyse the delegated legislation and its judicial control?

 To Discuss the circumstances and Need of such law.

 To analyse the impact and application of such law in India.

HYPOTHESIS
The main question, in today’s scenario, is not whether delegated legislation is desirable or not, but
what controls and safeguards can be introduced so that the conferment of legislative power on the
Administration by the Legislature is not abused or misapplied. Therefore, my dissertation, firstly,
seeks to evaluate the various controls that are laid down over delegated legislation in India. Since, it
is the Legislature which delegated legislative power to the Administration, the , secondly, explores
how it is the legislature’s primary responsibility to supervise and control the actual exercise of this
power, ensuring it is not used objectionably by the Administration. Thirdly, the dissertation highlights
the validity of delegated legislation with respect to Judicial Control or Judicial Review and how the
courts have to see whether the power delegated is within the ambit of the constitution. Lastly, puts
into perspective the various issues with regard to Delegated Legislation and recommends solutions
for the same.

RESEARCH QUESTIONS

1. Causes of Growth of Delegated Legislation?

2. CONDITIONAL LEGISLATION?
3. Restraints On Delegation of Legislative Power?
4. COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA AND INDIA
5. Judicial Control over Delegated Legislation

NATURE OF RESEARCH

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Analytical, Perspective, Critical and Descriptive Research. The research has been based upon the
various laws . A much critical and analytical research has opened the scope of perspective and
descriptive methodology to be employed.

LIMITATIONS OF RESEARCH
The only limitation is that there is not much printed literature available on this topic and i have to
study most of the things form online resources. I wanted to know more about Indian perspective on
this issue but as it is a vast topic .

CHAPTERISATION
CHAPTER -1
Meaning, Nature, Scope And Development Of Delegated Legislation

I. Introduction
II. Definitions
III. Scope of delegated legislation
IV. Types of delegation of legislative power in india
V. Essential characteristics of delegated legislation
VI. The need for delegated legislation
VII. Advantages of delegated legislation
VIII. Delegated legislation as distinguished from administrative power

IX. Sub-delegation
X. Merits of delegated legislation
XI. Demerits of delegated legislation
CHAPTER - 2
Causes of Growth of Delegated Legislation
I. Pressure upon Parliamentary time
II. Technicality
III. Flexibility
IV. Experimentation
V. Emergency
VI. Confidential matters
VII. Complexity of modern administration

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VIII. Confidential matters

IX. Complexity of modern administration
CHAPTER - 3

TYPES OF DELEGATED LEGISLATION

I. Rule
II. Regulation
III. Bye-Law
IV. Order
V. Notification
VI. Scheme
VII. Proclamation
VIII. Resolution

CHAPTER - 4
Restraints On Delegation of Legislative Power
I. Excessive Delegation : Permissible Limits
II. Classification of Delegated Legislation
III. Impermissible Delegation
a) Amplification of policy
b) Modification
Removal of difficulties
c)
Inclusion and Exclusion
d)
Taxation
e)
CHAPTER –5
COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA AND INDIA
I. ENGLAND
II. U.S.A.
III. INDIA
CHAPTER – 6
Judicial Control over Delegated Legislation
I. Doctrine of ultra vires
II. Circumstances
I. Delegated legislation in conflict with the parent act
II.
Delegated legislation in excess of the power conferred by the parent act
III.
Where delegated legislation is ultra vires the parent act
IV.
Where delegated legislation is ultra vires the constitution

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V. Where parent act is ultra vires the constitution

VI.
Delegated Legislation in conflict with the procedure of the parent act
VII. Malafide : bad faith
VIII. Unreasonableness
IX. Pragmatism
III. Judicial review
IV. Procedural irregularities
V. Saving clauses
VI. Statutory rules, if binding
CHAPTER -7

Recent and landmark judgements

1. A.K. Roy V. Union Of India

2. A.V. Nachane V. Union Of India
3. Adarsh Industrial Corporation V. Marketing Committee
4. Afzal Ullah V. State Of U.P.
5. Agricultural Market Committee V. Shalimar Chemicals Works,
6. Air India V. Nargesh Meerza
7. Ajaib Singh V. Gurbachan Singh
8. Ajay Hasia V. Khalid Mujib
9. Ajoy Kumar Banerjee V. Union Of India
10. Also Brij Sunder V. First Additional District Judge,
11. Arvinder Singh V. State Of Punjab
12. Asstt. Collector Of Central Excise V. Ramakrishna
13. Babu Ramv. State Of Punjab
14. Balakotiah V. Union Oflndia
15. Bamoari Lai V. State Of Bihar
16. Banarasi Das V. State Of M.P
17. Bangalore W.C. Mills V. Bangalore Corporation
18. Banwarilal Agarwalla Vs The State Of Bihar
19. Bar Council Of India V. Surjeet Singh
20. Barium Chemicals Ltd. V. Company Law Board

CHAPTER-8: CONCLUSION

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LITERATURE REVIEW

1. Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law
Agency, Faridabad, 2011.
Meaning of delegated legislation

2. Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press,
New Delhi, 2006.

Offers an unparalleled level of coverage of judicial review and the administrative

arrangements of the United Kingdom from a leading expert in the field
Acheives a high-level and authoritative account of the law, whilst retaining clarity and an ease
of navigability.

3. D.D. Basu 7th Edition 2006, “Administrative Law”

Administrative acts are those acts which are necessary to be done to carry out the
legislative politics and purposes already declared by the legislative body or such as
devolved upon it by the organic law in existence. And in order to carry out the regulatory
powers and duties, the administrative agencies create body of law in the form of rules,
regulations, orders and decisions. Thus, administrative law may be described as the law
governing of organization and operation of the executive branch of Government
(including independent agencies) and the relations of the executive with the legislature,
the judiciary and the public. The executive branch of the Government does not enjoy
unfettered power, rather its actions are amenable to judicial review. Such judicial control
has become part and parcel of administrative law. Said judicial Frankfurter,
"administrative law deals with the field of legal control exercised by the courts over such
agencies" (The Task of Administrative Laws 1927, P. 614). Accordingly, it is for the
judicial authority to see whether such body of administrative law is violative of the
Constitution of the country or is against the principles of natural justice or is otherwise
bad in the eye of law.

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4. S. P. Sathe, Administrative Law, 7th Edition, LexisNexis Buttersworth Wadhwa, Nagpur.

5. Bharadvaja B (2007 ) Delegated Legislation in India Meenakshi Prakashan New Delhi

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

Justice C.K. Takwani's Lectures on Administrative Law is an outstanding book which

explains the Administrative Law in the most coherent and logical manner. The book discusses
all the major aspects of Administrative Law, like basic constitutional principles, delegated
legislation, natural justice, administrative tribunal, judicial review and their application to the
administrative machinery of India.

6. Control and safeguards : CK Takwani As the rule making power are conferred on the
administration and to keep acheck wheather it is misused by the authority or misapplied .
therefore,control over delegated legislation and various circumstances through which it is
tried to keep control effective.

CONCLUSION
The case has materially contributed in the development of the concept of delegated legislation by
clarifying certain areas of confusion. One of it was laying down that British model of Delegated
Legislation cannot be implemented in India because of the difference of Constitution. Moreover, it
laid down that delegation is possible and necessary due to increase in burden on the legislature and
increase in administrative activities. This cleared the confusion of conditional delegation and
delegation. This case increased the scope of the delegated legislation to the extent of ancillary powers
i.e. non abdication of own power and non-transferring of main and essential functions. Majority
judges were in favour of delegated legislation except Mahajan J and Kania CJ who was emphasizing
more on the conditional 1 2 3 4 5 delegation. As the opposite Counsel built on the argument of Sepration
of power and the concept of non potest delegare, the court observed that separation of power is not a
part of Indian constitution. Courts are clear on the status of delegated legislation being allowed. 6 The
only question in courts regarding such cases is that whether the power delegated is excessive or
within the ambit of the parent act.

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