ICFAI Law School
The ICFAI University, Dehradun
Assignment Topic:
“ Delegated legislation and its Classification”
Submitted by:
Jaya Vats
23FLPCDDN01047
LLM (Constitutional Law)
Principles of Administrative Law
Submitted to:
Dr. Avishek Raj
Assistant Professor
ICFAI Law School
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ACKNOWLEDGMENT
I would like to express my special thanks to my professor , Dr. Avishek Raj Sir who gave me
the golden opportunity to do this wonderful project on the topic “Delegated legislation and
its Classification”, which also helped me in doing a lot of research and I came to know about
so many new things and I am very thankful to him.
JAYA VATS
23FLPCDDN01047
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Table Of Contents
INTRODUCTION...............................................................................................................................................
Delegated Legislation meaning:......................................................................................................................
REASONS FOR GROWTH OF DELEGATED LEGISLATION.................................................................
● Pressure upon Parliamentary Time :............................................................................................................
● Technicality :...............................................................................................................................................
● Flexibility:...................................................................................................................................................
● Experiment:.................................................................................................................................................
● Emergency:..................................................................................................................................................
● Complexity of Modern Administration :.....................................................................................................
CLASSIFICATION OF DELEGATED LEGISLATION...............................................................................
1. Title- Based Classification:.........................................................................................................................
2. Discretion-based classification (conditional legislation):...........................................................................
1. First Category:-.....................................................................................................................................
2. Second category:-..................................................................................................................................
3. Third category:-.....................................................................................................................................
3. Nature-based classification (exceptional delegation):................................................................................
3.1. Normal Delegation:............................................................................................................................
3.2. Exceptional Delegation:.....................................................................................................................
4. Purpose-based classification:......................................................................................................................
● Enabling Acts: -.....................................................................................................................................
● Extension and application Acts:............................................................................................................
● Dispensing and Suspending Acts: -.......................................................................................................
● Alteration Acts: -...................................................................................................................................
CONCLUSION....................................................................................................................................................
BIBLIOGRAPHY...............................................................................................................................................
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INTRODUCTION
When the function of legislation is entrusted to organs other than the legislature itself, the
legislation made by such organs is called delegated legislation. Or we can also say that when
the legislature delegates its power to the administrative body and the administrative body
makes any law related to the powers delegated to it then the law made in such a case is said to
be delegated legislation. There is a limit to the power of delegation which is a kind of
restriction over the powers to delegate. There is a doctrine which deals with the limits of
delegated legislation and is known as ‘The Doctrine of Permissible Limits’. This doctrine
deals with the power of legislature which can be delegated to the administrative authorities as
well as the powers which can’t be delegated.
Delegated Legislation meaning:
The term is used in two different senses:
● To exercise the legislative power by subordinate agents, or
● The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the powers conferred on it by the legislature”.
Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and
administer the requirements of the primary authority. It can be said that it is the law made by
any person or authority under the power of parliament. It is also known as subordinate
legislation in administrative law. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament,
Parliament has full authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline of the
purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.
The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement
then sanctions can also be altered by the delegated legislation as the technology changes. It is
believed that when such authority is delegated by the Parliament to any person or authority it
enables such person or the authority to provide more detail to the act of the Parliament.
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One of the advances in the realm of administrative process made during these days is that
apart from 'pure' administrative function, the executive performs legislative function as well.
Due to a number of reasons, there is rapid growth of administrative legislation. 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. But, in truth, apart from ‘pure’
administrative functions, the executive performs many legislative and judicial functions also.
It has, therefore, been rightly said that the delegated legislation is so multitudinous that a
statute book would not only be incomplete but misleading unless it be read along with
delegated legislation which amplifies and supplements the law of the land. It is very difficult
to give any precise definition of the expression ‘delegated legislation.’
It is equally difficult to state with certainty the scope of such delegated legislation. 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.
Delegated legislation thus is a legislation made by a body or person other than the Sovereign
in Parliament by virtue of powers conferred by such sovereign under the statute. A simple
meaning of the expression ‘delegated legislation’ may be given as: ‘When the function of
legislation is entrusted to organs other than the legislature by the legislature itself, the
legislation made by such organs is called delegated legislation.’
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REASONS FOR GROWTH OF DELEGATED LEGISLATION
Many factors are responsible for the rapid growth of delegated legislation in every modern
democratic State. The traditional theory of ‘laissez faire’ has been given up by every State
and the old ‘police State’ has now become a ‘welfare State.’ Because of this radical change in
the philosophy as to the role to be played by the State, its functions have increased.
Consequently, delegated legislation has become essential and inevitable.
● Pressure upon Parliamentary Time :
As a result of the expanding horizons of State activity, the bulk of legislation is so great that
it is not possible for the legislature to devote sufficient time to discuss all the matters in
detail. Therefore, the legislature formulates the general policy and empowers the executive to
fill in the details by issuing necessary rules, regulations, bye-laws, etc. In the words of Sir
Cecil Carr, delegated legislation is “a growing child called upon to relieve the parent of the
strain of overwork and capable of attending to minor matters, while the parent manages the
main business.”
● Technicality :
Sometimes, the subject-matter on which legislation is required is so technical in nature that
the legislator, being himself a common man, cannot be expected to appreciate and legislate
on the same, and the assistance of experts may be required. Members of Parliament may be
the best politicians but they are not experts to deal with highly technical matters which are
required to be handled by experts. Here the legislative power may be conferred on experts to
deal with the technical problems, e.g. gas, atomic energy ,drugs, electricity, etc.
● Flexibility:
At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen situations
demanding exigent action. A legislative amendment is a slow and cumbersome process, but
by the device of delegated legislation, the executive can meet the situation expeditiously, e.g.
bank-rate, police regulation export and import, foreign exchange, etc.For that purpose, in
many statutes, a ‘removal of difficulty’ clause is found empowering the administration
overcome difficulties by exercising delegated power.
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● Experiment:
The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience, e.g. in road traffic matters, an
experiment may be conducted and in the light of its application necessary changes could be
made. Delegated legislation thus allows employment and application of past experience.
● Emergency:
In times of emergency, quick action is required to be taken. The legislative process is not
equipped to provide for an urgent solution to meet the situation. Delegated legislation is the
only convenient remedy. Therefore, in times of war and other national emergencies, such as
aggression, breakdown of law and order, strike, 'bandh', etc. the executive is vested with
special and extremely wide powers to deal with the situation. There was substantial growth of
delegated legislation during the two World Wars. Similarly, in the situation of epidemics,
floods, inflation, economic depression, etc. immediate remedial actions are necessary which
may not be possible by lengthy legislative process and delegated legislation is the only
convenient remedy.
● Complexity of Modern Administration :
The complexity of modem administration and the expansion of the functions of the State to
the economic and social sphere have rendered it necessary to resort to new forms of
legislation and to give wide powers to various authorities on suitable occasions. By resorting
to the traditional legislative process, the entire object may be frustrated by vested interests
and the goal of control and regulation over private trade and business may not be achieved at
all. The practice of empowering the executive to make subordinate legislation within the
prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern
welfare State.
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CLASSIFICATION OF DELEGATED LEGISLATION
Administrative rule-making or delegated legislation in India is commonly expressed by the
term “statutory rules and orders”. However, this classification is not exhaustive as it appears
in other forms also, i.e. regulation, notification, bye-law, scheme and direction. These
terminologies are confusing because different words are used for the same thing and same
words are used for different things.
1. Title- Based Classification:
● Rule:
The term “rule” is defined in the General Clauses Act, 1897 as a rule made in exercise of
power conferred by any enactment and shall include a regulation made as a “rule” under any
enactment. These rules may be made applicable to a particular individual or to a general
public. It may include rules of procedures as under the Atomic Energy Act, 1948, and also
the rules of substantive law.
● Regulations:
This term is not confined to delegated legislation. It means an instrument by which decisions,
orders and acts of the government are made known to the public. But in the sphere of
administrative rule making, the term relates to a situation where power is given to fix the date
for the enforcement of an Act, or to grant exemptions from the Act or to fix prices, etc.
● Order:
This term is used to cover various forms of legislative and quasi-judicial decisions. Orders
may be specific or general. The former refers to administrative action while the latter refers
to administrative rule-making.
● Bye-laws:
The term has been confined to rules made by semi-governmental authorities established
under the act of legislatures.
● Directions:
The term is used in two senses. The Constitution gives powers to the Central Government to
issue directions to State Governments for the execution of its laws. In this sense it has no
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application to delegated legislation. In the second sense, the term “direction” is an expression
of administrative rule-making under the authority of law or rules or orders made there under.
These may be recommendatory or mandatory. If mandatory, these have the force of law.
● Scheme: The term refers to a situation where the law authorizes the administrative
agency to lay down a framework within which the detailed administrative action to
proceed.
The Committee on Ministers’ Powers 1 has recommended simplification of the nomenclature,
confining the term “rule” to the statutory instrument regulating procedure, the term
“regulation” to describe the substantive administrative rule-making, and the term “order” to
instruments exercising executive and quasi-judicial decisions.
2. Discretion-based classification (conditional legislation):
In the case of conditional legislation, the legislation is complete in itself but its operation is
made to depend on fulfilment of certain conditions and what is delegated to an outside
authority, is the power to determine according to its own judgment whether or not those
conditions are fulfilled.
In case of delegated legislation proper, some portion of the legislative power of the
Legislature is delegated to the outside authority in that, the Legislature, though competent to
perform both the essential and ancillary legislative functions, performs only the former and
parts with the latter, i.e., the ancillary function of laying down details in favour of another for
executing the policy of the statute enacted. The distinction between the two exists in this that
whereas conditional legislation contains no element of delegation of legislative power and is,
therefore, not open to attack on the ground of excessive delegation, delegated legislation does
confer some legislative power on some outside authority and is therefore open to attack on
the ground of excessive delegation.
In Sardar Inder Singh v. State of Rajasthan2, it was laid down that when an appropriate
Legislature enacts a law and authorizes an outside authority to bring it into force in such an
area or at such time as it may decide, that is conditional and not delegated legislation.
1 Committee on Ministers’ Powers, Report 45,23,51, 52 (1932).
2 AIR 1957 SC 510
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Following this decision in State of Tamil Nadu v. K Sabanayagam3The Supreme Court held:
“The distinction between conditional legislation and delegated legislation is this that, in the
former the delegate's power is that of determining when a legislative declared rule of conduct
shall become effective (Hampton and Co. v. U.S.)4 and the latter involves delegation of rule-
making power which constitutionally may be exercised by the administrative agent. This
means that the legislature having laid down the broad principles of its policy in the legislation
can then leave the details to be supplied by the administrative authority.
The Supreme Court said that conditional legislation can be broadly classified into three
categories: -
1. First Category:-
In the first category when the Legislature has completed the task of enacting a Statute, the
entire superstructure of the legislation is ready but its future applicability to a given area is
left to the subjective satisfaction of the delegate who being satisfied about the conditions
indicating the ripe time for applying the machinery of the said Act to a given area exercises
that power as a delegate of the parent legislative body. When the Act itself is complete and is
enacted to be uniformly applied in future to all those who are to be covered by the sweep of
the Act, the Legislature can be said to have complied with its task. All that it leaves to the
delegate is to apply the same uniformly to a given area indicated by the parent Legislature
itself but at an appropriate time. This would be an act of pure and simple conditional
legislation depending upon the subjective satisfaction of the delegate as to when the said Act
enacted and completed by the parent Legislature is to be made effective. As the parent
Legislature itself has laid down a binding course of conduct to be followed by all and sundry
to be covered by the sweep of the legislation and as it has to act as a binding rule of conduct
within that sweep and on the basis of which all their future actions are to be controlled and
guided, it can easily be visualized that if the parent Legislature while it enacted such law was
not required to hear the parties likely to be affected by the operation of the Act, its delegate
exercising an extremely limited and almost ministerial function as an agent of the principal
Legislature applying the Act to the area at an appropriate time is also not supposed and
required to hear all those who are likely to be affected in future by the binding code of
conduct uniformly laid down to be followed by all within the sweep of the Act as enacted by
the parent Legislature.
3 AIR 1998 SC 344
4 (1927) 276 US 394
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2. Second category:-
However, there may be second category of conditional legislations wherein the delegate has
to decide whether and under what circumstances a completed Act of the parent legislation
which has already come into force is to be partially withdrawn from operation in a given area
or in given cases so as not to be applicable to a given class of persons who are otherwise
admittedly governed by the Act. When such a power by way of conditional legislation is to
be exercised by the delegate a question may arise as to how the said power can be exercised.
In such an eventuality if the satisfaction regarding the existence of condition precedent to the
exercise of such power depends upon pure subjective satisfaction of the delegate and if such
an exercise is not required to be based on the prima facie proof of factual data for and against
such an exercise and if such an exercise is to uniformly apply in future to a given common
class of subjects to be governed by such an exercise and when such an exercise is not to be
confined to individual cases only, then even in such category of cases while exercising
conditional legislative powers the delegate may not be required to have an objective
assessment after considering rival versions on the data placed before it for being taken into
consideration by it in exercise of such power of conditional legislation.
3. Third category:-
In such a third category of cases of conditional legislation the Legislature fixes up objective
conditions for the exercise of power by the delegate to be applied to past or existing facts and
for deciding whether the rights or liabilities created by the Act are to be denied or extended to
particular areas, persons or groups. This exercise is not left to his subjective satisfaction nor
is it a mere ministerial exercise.
3. Nature-based classification (exceptional delegation):
Classification of administrative rule-making may also be based on the nature and extent of
delegation. The Committee on Ministers’ powers distinguished two types of parliamentary
delegation:
3.1. Normal Delegation:
There are two types of normal delegation:
A). Positive delegation. -Where the limits are clearly defined in the Parent Act, it is called
positive delegation.
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B). Negative delegation. -Where the delegated power does not include power to do certain
things, it is known as negative delegation e.g., power to legislate on matters of policy or
power to impose tax.
3.2. Exceptional Delegation:
Exceptional delegation is also known as the Henry VIII clause. Instances of exceptional
delegation may be as follows:
● Power to legislate on matters of principle.
● Power to amend Acts of Parliament.
● Power gives such a wide discretion that it is almost impossible to know the limits.
● Power to make rules which cannot be challenged in a court of law.
4. Purpose-based classification:
● Enabling Acts: -
Appointed day clause: under this the executive has to appoint a day for the Act to come into
operation.
● Extension and application Acts:
The technique of administrative rule-making may sometimes be used for extension and
application of an Act in respect of a territory or for duration of time or for any other such
object. Power may be delegated to extend the operation of Act to other territories.
● Dispensing and Suspending Acts: -
To make exemption from all or any provision of the Act in a particular case or class of cases
or territory, when circumstances warrant
● Alteration Acts: -
Technically alteration amounts to amendment, yet it is a wide term & includes both
modification and amendment. Power to modify Acts has mostly been delegated as a sequel to
the power to the power of extension and application of laws. The power of modification is
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limited to consequential changes, but it is overstepped; it suffers challenges on the ground
that it is not within the legislative intent of modification. In Queen v. Burah the Privy
Council held, that the 9th section of the Act conferring power upon the Lieutenant-Governor
to determine whether the Act of any part of it should be applied to a certain district, was a
form of conditional legislation and did not amount to delegation of legislative powers. It is
like “removing difficulty” so that the various states may coexist.
● Power to make rules: To carry out the purpose of the Act.
● Classifying and fixing standard Acts: Power is given to fix standards of purity, quality
or fitness for human consumption.
● Clarify the provision of the statutes Acts: To issue interpretation on various
provisions of the enabling Act.
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CONCLUSION
Delegation of powers is helpful but excessive delegation is harmful. Delegations have various
advantages like reduction of workload of the legislature etc. but what has to be done by the
legislature has to be done by itself only. That is why there is a well defined arena of delegated
legislation beyond which there will not be allowed any delegation of powers and that is
known as impermissible limits of delegated legislation. Delegation of powers helps in
division of excessive workload too but safeguards and proper control mechanisms should be
present and implemented to have a proper canalized and controlled delegation of powers.
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BIBLIOGRAPHY
Books/Articles:
1. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II,
Wadhwa Nagpur.
2. C.K.Takwani, Lectures on Administrative Law, 4 th edition, 2008.
3. Paras Diwan, Administrative Law, 3rd edition, 2004.
4. Takwani and Thakkar , Lectures on Administrative Law
Case Laws:
1. J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). (n.d.). Justia Law.
https://supreme.justia.com/cases/federal/us/276/394/
2. Sardar Inder Singh vs The State Of Rajasthan(And Connected ... on 8 February,
1957. (n.d.). Indiankanoon.org. Retrieved April 2, 2024, from
https://indiankanoon.org/doc/1519712/
3. State Of Tamil Nadurepresented By ... vs K.Sabanayagam & Anr. Etc on 25
November, 1997. (n.d.). Indiankanoon.org. Retrieved April 2, 2024, from
https://indiankanoon.org/doc/1472719/
4. WILLIAM, J. (2024). HER MAJESTY THE QUEEN VS BURAH - Supreme Today AI.
Supremetoday.ai. https://supremetoday.ai/doc/judgement/00100044474#:~:text=The
%20Respondent%20Burah%20and%20one
Internet /Web Resources:
Agarwal, C. (n.d.). IN RE DELHI LAWS ACT CASE: LANDMARK IN CONCEPT OF
DELEGATED LEGISLATION IN INDIA.
https://www.manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws
%20Act%20Case.pdf
Dhanjal, F. (2020, December 5). DELEGATED LEGISLATION, Part -2,
ADMINISTRATIVE LAW. Farheen Dhanjal.
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https://farheendhanjal.law.blog/2020/12/05/delegated-legislation-part-2-
administrative-law/
Doctrine of Permissible Limits Under Delegated Legislation. (n.d.).
Www.legalservicesindia.com. Retrieved April 2, 2024, from
https://www.legalservicesindia.com/article/497/Doctrine-of-Permissible-Limits-
Under-Delegated-Legislation.html#:~:text=Doctrine%20of%20permissible%20limits
%20talks
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