UNIT III

DELEGATED LEGISLATION

INTRODUCTION

Traditionally, the main job of the executive (the government) is to enforce the laws made by the
legislature (Parliament). Ideally, only the legislature should make laws since they are directly
elected by the people.

However, in today’s democracies, most laws are not made directly by the legislature. Instead,
only a small part of the total laws come straight from Parliament. The rest are made by the
executive, using powers delegated to it by the legislature. This is called delegated legislation.

In England, technically, only Parliament can make laws. But in practice, the government makes
many rules and regulations using powers given by Parliament. These include things like rules,
orders, circulars, schemes, bye-laws, etc., and they are considered part of the law of the land.

Even in the United States, where the separation of powers is strong and the idea of delegated
legislation is not officially accepted, in practice, the executive still makes laws for practical
reasons, especially due to the increase in administrative functions.

In India, between 1973 and 1977, about 300 laws were passed by Parliament, but over 25,000
rules and orders were made by the executive. This shows how important delegated legislation
has become. A law is incomplete without looking at the rules made under it.

DEFINITION

There is no fixed or clear definition of delegated legislation. Still, most of today’s laws are
created by the executive under powers given by the legislature.

​ •​ According to Salmond, delegated legislation is law made by someone other than

the supreme lawmaker, and it stays valid only as long as it follows the authority of the supreme
lawmaker.

​ •​ According to Mukherjea, delegated legislation is confusing – it can be an excuse

for lawmakers, a tool for administrators, and a challenge for legal experts.

​ •​ According to M.P. Jain and S.N. Jain, delegated legislation has two meanings:

​ 1.​ The act of using the power to make laws given by the legislature.

​ 2.​ The actual rules or laws made by this power – like rules, regulations, bye-laws,
etc.
In simple words, delegated legislation means when law-making powers are given to someone
other than the legislature, and the laws made by them are called subordinate legislation.

​ •​ The original law made by Parliament is called the Parent Act or Primary Law.

​ •​ The laws made under this Parent Act by the executive are called Subordinate
Laws.

HISTORICAL DEVELOPMENT

Delegated legislation is not a new idea. It has existed for a long time.

​ •​ In 1337, a law said that exporting wool was a crime unless the King and his
Council approved it.

​ •​ In the 15th and 16th centuries, there was frequent use of a power called the
Henry VIII Clause, allowing the King or his officers to change laws without Parliament.

​ •​ The Statute of Sewers (1531) allowed certain officers to make, change, and
cancel laws, as well as collect taxes.

​ •​ The Mutiny Act (1717) gave the Crown power to make laws for the Army without
Parliament.

During the 19th century, delegated legislation increased due to social and economic changes.
By the 20th century, the executive started making many more laws than the legislature.

REASONS FOR THE GROWTH OF DELEGATED LEGISLATION

In modern democratic countries, delegated legislation has grown rapidly due to several
important reasons. Earlier, the role of the State was limited to maintaining law and order and
defending the nation. But now, the State has taken on wider responsibilities—like ensuring the
welfare and development of its citizens, as highlighted in Parts III and IV of the Indian
Constitution (Fundamental Rights and Directive Principles of State Policy).

The idea of ‘laissez-faire’ (minimal government interference) has been replaced with the ‘welfare
state’ concept. This change has increased the work of the government, making it harder for
legislatures to handle everything themselves.

Parliaments no longer have the time or technical knowledge to deal with every detail of complex
and modern issues. As a result, delegating law-making power to the executive has become
necessary and unavoidable.
Main Reasons for the Growth:

1. Pressure on Parliamentary Time

Modern governments handle so many responsibilities that Parliament does not have enough
time to debate every small detail.

So, Parliament lays down broad policies (the skeleton) and allows the executive to fill in the
details through rules, bye-laws, and regulations.

As Sir Cecil Carr said, delegated legislation is like a “growing child” helping the parent
(Parliament) manage its workload.

2. Technical Nature of Laws

Some laws involve highly technical subjects (like atomic energy, drugs, electricity, gas).

Members of Parliament may be skilled politicians but not experts in these fields.

In such cases, it’s better to give powers to specialists or departments who can make technical
rules based on their expertise.

3. Flexibility

When laws are made, it’s impossible to predict every future situation.

But amending laws in Parliament takes time.

Delegated legislation helps the government quickly respond to unforeseen or urgent issues, like
changes in bank rates, import/export rules, or police regulations.

That’s why many laws include ‘removal of difficulty’ clauses to let the executive act fast.

4. Experimentation

Delegated legislation allows the executive to try new policies or rules and make changes if
needed based on results.

For example, a traffic rule can be tested in one area, and if successful, applied elsewhere with
adjustments.

It supports trial-and-error approaches in governance.

5. Emergency Situations

During emergencies like war, epidemics, strikes, floods, inflation, or violence, quick decisions
are required.

Parliament’s normal process is too slow for these situations.

Delegated legislation gives the executive emergency powers to take immediate action.

This was especially important during the World Wars, when laws had to be made and changed
rapidly.

6. Complex Modern Administration

Modern governments have to manage economy, trade, business, social welfare, and more.

Passing all necessary laws through Parliament would take too long and could be blocked by
special interest groups.

So, the executive is given specific powers to make rules within a certain limit, allowing the
smooth running of government programs.

Delegated Legislation in England (Simplified)

In England, Parliament is sovereign, meaning it holds the highest law-making power. In theory,
only Parliament can make laws. However, as noted by C.K. Allen, one of the most significant
changes in 19th-century English legal history was the rise of subordinate (delegated) legislation.

Just like in other countries, several factors such as lack of time, technical complexity,
emergencies, and administrative convenience made it difficult for Parliament to handle all
legislative work alone. This led to the increased use of delegated legislation, where Parliament
gave certain law-making powers to the government.

Over time, administrative legislation (laws made by the executive) began to be seen as
acceptable and necessary. People realized that legislation and administration are not completely
separate—they are closely linked.

Attempts were made to clearly separate legislative and administrative functions, but those tests
turned out to be inadequate. Also, administrative law was not yet a well-developed branch of
law during that time.

During World War I and II, delegated legislation increased tremendously. The government
began regulating many areas of daily life, such as:
​ •​ Housing

​ •​ Education

​ •​ Employment

​ •​ Health and Pensions

​ •​ Social Security

​ •​ Production and Distribution of Essential Goods

​ •​ Urban Planning

As the government started getting more power over personal matters, some people began to
criticize this growth, fearing misuse of authority.

To address these concerns, the issue was referred to a special committee in 1929, known as
the Donoughmore Committee (Committee on Ministers’ Powers).

In 1932, the committee submitted its report, noting that:

​ •​ Parliament may not have fully realized how widespread delegated legislation had
become.

​ •​ There was a risk of misuse if not properly controlled.

​ •​ But, the committee concluded that delegated legislation is legitimate and

constitutionally acceptable — as long as it is used for the right purposes, kept within limits, and
is properly safeguarded.

Delegated Legislation in the USA (Made Easy)

1. Separation of Powers

The U.S. Constitution divides government power into three parts:

​ •​ Article I: Congress makes the laws

​ •​ Article II: The President carries out the laws

​ •​ Article III: Courts interpret the laws and can cancel laws that go against the
Constitution

In the case Field v. Clark (1892), the Supreme Court said Congress can’t give its law-making
power to the President. This rule helps protect the structure of government.
2. Delegatus Non Potest Delegare (A delegate can’t delegate further)

This Latin rule means: if someone is given power, they can’t pass it on to someone else.

Since Congress is trusted by the people to make laws, it shouldn’t pass that power to others.

BUT, in real life, Congress can’t handle all the complex tasks of modern government. So, to get
things done, it allows some powers to be used by the executive or government agencies.

To manage this, the Supreme Court tried to balance two things:

​ •​ The rule that only Congress should make laws

​ •​ The practical need to let others help in specific areas

Important U.S. Court Cases on Delegated Legislation

1. Panama Refining Co. v. Ryan (1935) – “Hot Oil Case”

Congress gave the President the power to control oil transport between states.

The Court said this was wrong because Congress didn’t clearly say what rules or goals to
follow. So, the law was struck down.

2. Schechter Poultry Corp. v. U.S. (1935) – “Sick Chicken Case”

Congress let the President approve industry rules and punish those who didn’t follow.

The Court said this gave the President too much free power, and called it “delegation gone
wild.”

3. National Broadcasting Co. v. U.S. (1943)

The Federal Communications Commission (FCC) was given the power to issue licenses based
on “public interest, convenience, or necessity.”

Even though that wording was a bit vague, the Court said it was still acceptable.

4. Yakus v. U.S. (1944)

During World War II, a law allowed price control to stop inflation.

The Court said it was okay because Congress gave enough guidance, even if the rules were
flexible.
This case softened the strict rule from the Sick Chicken Case.

5. Mistretta v. U.S. (1988)

The U.S. Sentencing Commission created rules to decide punishments for crimes.

One man said Congress gave the commission too much power, but the Court disagreed.

It said Congress gave clear goals and that was enough.

6. Whitman v. American Trucking Associations (2001)

Congress let the EPA set air quality standards. Some said there weren’t clear instructions.

The Court said the EPA had an “intelligible principle” to follow—meaning some basic guidance
was enough.

Conclusion

Earlier, the U.S. courts believed Congress should never delegate its powers.

But now, they take a more practical view. Delegated legislation is allowed if:

​ •​ Congress gives clear rules or policies, and

​ •​ The powers given are reasonable and necessary for running the country

Today, solving real-world problems is more important than strictly following old legal theories.

Delegated Legislation and its constitutionality in India

Introduction

Delegated legislation is an important feature of India’s legal system, empowering the

government to create laws within clearly defined boundaries. This concept allows the executive
to make detailed rules and regulations under the authority granted by Parliament. However, the
Indian Constitution subjects this delegation to specific limitations, ensuring it remains consistent
with the intent of the parent legislation. This discussion highlights the legislature’s role in setting
these limits, evaluates reasonableness, procedural safeguards, and underscores the relevance
of contextual circumstances surrounding the exercise of rule-making powers. Understanding the
constitutionality of delegated legislation is fundamental to India’s governance framework.

Meaning of Delegated Legislation

Delegated legislation refers to laws made by an individual or authority other than Parliament,
under powers granted by an Act of Parliament. Unlike primary legislation, which requires
approval from both Houses and assent from the Governor-General, delegated legislation covers
subordinate rules and regulations framed by executive authorities like the Governor-General,
acting on the advice of the Federal Executive Council. Its primary purpose is to handle technical
details and operational issues that Parliament need not address directly in the main law.

Why Delegated Legislation Is Needed

Delegated legislation enables the government to make necessary legal provisions without
waiting for Parliament to pass a new Act each time. It also allows adjustments in penalties or
technical details within existing laws. In practice, more delegated laws are enacted annually
than primary Acts of Parliament, highlighting their vital role in legislative administration.
Importantly, delegated legislation carries the same legal force as the parent Act.

Delegated Authority in Administrative Law

The concept of delegated legislation is recognized in many countries. Courts in different

jurisdictions, especially where constitutional provisions on delegation are silent, assess its
legitimacy. Nations like the United States, India, Australia, Canada, and South Africa have had
their courts interpret the extent of permissible delegation.

In India, from the Privy Council to the modern Supreme Court, constitutional scrutiny of
administrative rules has shaped legal standards for delegated legislation. In Indian Oil
Corporation v. Municipal Corporation, Jullundhar, the Supreme Court held that any delegated
legislation must conform to the parent Act and should not exceed legislative policy guidelines.
Delegates cannot possess broader powers than the authority granting them.

The legislature is restricted from delegating its core legislative functions, such as formulating
policy frameworks for specific laws. While non-essential legislative tasks may be delegated,
essential ones must remain within the legislature’s domain. Courts, after thorough examination
and deliberation, decide on the constitutionality of such delegation based on these principles.
The Supreme Court emphasized that the competence of the authority is judged not by motive
but by the relevance of circumstances and the context in which the power is exercised.

The Constitutionality of Delegated Legislation in India

A. Pre-Independence Era

Before India’s independence, cases like Queen v. Burah (1878) set important precedents, with
the Privy Council allowing conditional legislation and the delegation of certain powers to the
executive. In King v. Benoari Lal Sharma, the Privy Council upheld emergency ordinances that
permitted special criminal courts, clarifying that this did not amount to delegated legislation but
rather a conditional exercise of legislative authority at the local level.

B. Post-Independence Era
Post-1947, the Indian Constitution laid down specific limitations on delegation. There is no
provision for unlimited delegation of legislative powers. In Raj Narain Singh v. Chairman, Patna
Administration Committee (1954), the Supreme Court upheld the delegation of powers to local
authorities to extend provisions of the Bengal Municipality Act. However, in Hamdard
Dawakhana v. Union of India (1959), the Court struck down a provision granting the Central
Government unchecked authority under the Drug and Magic Remedies Act, citing excessive
and undefined delegation.

By 1973, the Court acknowledged the evolving needs of a modern welfare state, leading to a
more practical and balanced interpretation of delegated legislation.

Status under the Indian Constitution

The Constitution of India allows the legislature to delegate responsibilities to subordinate

authorities while defining policy guidelines. In D. S. Gerewal v. State of Punjab, the Supreme
Court interpreted Article 312, stating that nothing in its language limits Parliament’s usual power
of delegation. However, unlike the British Parliament, Indian and American legislatures cannot
delegate limitless powers. The Constitution permits delegation, provided it remains within
explicit and reasonable limitations aligned with legislative policies.

Grounds to Assess the Constitutionality of Delegated Legislation

The Supreme Court has laid down several principles for determining the validity of delegated
legislation:

●​ Consistency with the Parent Act: As established in Indian Oil Corporation v. Municipal
Corporation, Jullundhar, delegated legislation must not contradict the parent Act or
legislative intent.​

●​ Legislative Limits: The legislature must define clear boundaries for administrative
rule-making.​

●​ Essential Legislative Functions: Fundamental legislative functions, especially

policy-making, cannot be delegated.​

●​ Policy Statements: The courts recognize that divergent policy statements, after thorough
debate, can be valid indicators of legislative policy.​

●​ Unreasonableness and Procedural Safeguards: Delegated legislation must be

reasonable and comply with any procedural requirements established in the parent Act.​

●​ Irrelevance of Motive: Courts consider the context and circumstances rather than the
authority’s motive when assessing validity.​
 ●​ Public Interest and Doctrine of Proportionality: Delegated legislation must serve public
interest, evaluated through the principle of proportionality.​

●​ Court’s Decision Binding: As ruled in Bihar State Govt. Secondary School Teachers
Assn. v. Ashok Kumar Sinha, administrative authorities cannot overturn judicial decisions
through delegated rules, reinforcing limitations on excessive delegation.​

●​ Wide Scope for Evaluation: While these principles form the core framework, other factors
may also guide courts in determining the constitutional limits of delegated legislation.​

In Kerala Education Bill, the Court permitted delegation, provided it wasn’t unguided or
unconstitutional, thus emphasizing the necessity of protective legal boundaries.

Legislative Supervision: It is essential for preferred rules to be laid before the legislature for
approval, ensuring the legislature retains control over governance decisions.

Conclusion

The Indian Constitution recognizes delegated legislation as a legitimate part of governance,

subject to specific limitations. It must be consistent with the parent Act, and the extent of
delegation is determined by the legislature. Essential legislative functions like policy formulation
cannot be delegated. Factors such as reasonableness, procedural safeguards, and the context
of rule-making are crucial in evaluating its constitutionality. The doctrine of proportionality
ensures public interest is maintained. Indian courts play a vital role in restricting excessive
delegation, maintaining a balanced and constitutionally compliant administrative process

Conditional delegated legislation

Introduction
Law achieves its true purpose of ensuring justice and fairness only when it is not just confined to
statutes but is effectively implemented and enforced. Merely having laws written in books is
insufficient — the real impact is seen when laws are actively applied in society. In this process,
both the legislature and the executive play complementary roles, working both independently
and in coordination with one another.

This balance is where the concept of conditional legislation emerges. Since lawmakers cannot
personally oversee every aspect of law enforcement across all regions and situations, they
sometimes delegate limited powers to subordinate authorities. These subordinates are
empowered to implement existing laws within the boundaries of the authority delegated to them.
When this delegation involves certain pre-decided conditions that dictate how, when, and where
the delegated power should be exercised, it is termed conditional legislation.
To visualize this:

●​ A represents Legislation​

●​ B represents Delegated Legislation (a subset of Legislation)​

●​ C represents Conditional Legislation (a subset of Delegated Legislation)​

The evolution of administrative law stems from this system of delegation — an uncodified yet
vital framework that governs how different organs of the government function. Delegated
legislation plays a critical role, especially in situations requiring flexibility, expertise, or urgent
action — like emergencies or technical matters. In such contexts, conditional legislation ensures
that the delegated powers are exercised within legally defined parameters.

Definition of Conditional Legislation

Conditional legislation occurs when a law is complete in itself, but the responsibility for deciding
when and under what circumstances it should be enforced is entrusted to another authority. This
does not include the power to make new laws but only the power to implement an existing law
when specified conditions are met.

In Hamdard Dawakhana v. Union of India, the Supreme Court clarified that in cases of
conditional legislation, the delegate’s role is limited to deciding the moment a legislatively
declared rule of conduct should come into effect.

Instances Where Conditional Legislation Applies

Conditional legislation is typically found in situations where:

1.​ The legislature empowers the executive to extend the operation of an existing law to a
specific area.​

2.​ The executive is given authority to decide the timing of an Act’s application in a particular
region.​

3.​ The executive may extend the duration of a temporary law, within limits fixed by the
legislative body.​
 4.​ The executive is asked to determine the extent and limitations within which a law should
be operational.​

5.​ The executive may enforce a special law when certain anticipated circumstances arise,
as determined by the government.​

This system grants flexibility and ensures better reach and implementation of laws by allowing
the government the discretion to decide on the “when, where, and how” of enforcement.
However, such discretion must remain strictly within the limits of the authority delegated by the
legislature. Any action beyond these limits is invalid.

Categories of Conditional Legislation

Conditional legislation typically falls into three categories:

1.​ First Category:​

​
The legislature enacts a complete statute, but its enforcement in a particular region is
left to the subjective satisfaction of the delegate. Once the delegate deems it
appropriate, the provisions are applied. This is a pure form of conditional legislation
where the delegate decides only the timing of enforcement.​

2.​ Second Category:​

​
Here, the delegate has the authority to withdraw, either partially or completely, the
operation of a law in certain areas or cases for specific groups of people. This is a
negative power — where the delegate decides when a law will no longer apply due to
administrative reasons or changes in circumstances.​

3.​ Third Category:​

​
In this case, the delegate’s exercise of power depends on objective facts placed before
them by one group of people seeking to benefit by depriving another group that might
already be enjoying statutory benefits under the law. The delegate must assess the
relevant data carefully and decide whether exercising such power is justified, balancing
the interests of both groups.​

Landmark Case: Re: Delhi Laws Act Case

This case is a cornerstone in the discussion on delegation of legislative power. The question
was whether giving the Lt. Governor the authority to extend laws to certain areas constituted
improper delegation.

The Privy Council held that the Indian legislature was not an agent or subordinate body but
possessed plenary legislative powers akin to those of the British Parliament. It ruled that the
Indian legislature had exercised its own legislative judgment concerning the applicable laws,
areas, and persons — leaving to the Governor only the task of enforcing those laws upon the
occurrence of specified conditions. This was upheld as a valid form of conditional legislation.

In Jatindra Nath v. Province of Bihar, the Court further clarified that India does not permit any
delegation of essential legislative power beyond conditional legislation.

Difference Between Delegated Legislation and

Conditional Legislation
Although conditional legislation is a type of delegated legislation, they differ in important ways:

●​ Delegated Legislation involves transferring law-making power to another body, allowing it

to frame rules, regulations, or notifications.​

●​ Conditional Legislation does not involve making new laws but only allows another
authority to bring an existing law into effect once pre-set conditions are met.​

Both are executed by delegates and serve the common objective of facilitating efficient
governance and law enforcement. However, they operate within different scopes of authority —
one in creating subordinate legislation, the other in executing conditions for the implementation
of the main legislation.

Ultimately, both function under powers delegated by Central or State legislatures and are bound
by the legal limits set by the parent legislation.

Core Principle

​ •​ The legislature must perform its essential legislative functions—this includes:

​ •​ Deciding legislative policy

​ •​ Formulating rules of conduct

​ •​ These essential functions cannot be delegated to the executive.

​ •​ However, once the main legislative work is done, the legislature can delegate
supporting tasks to the executive.

Key Case: Arvinder Singh v. State of Punjab (1979)

​ •​ The Constitution creates three organs: Legislature, Executive, Judiciary.

​ •​ Each must do its own job.

​ •​ If the legislature abandons its role and lets another organ take over, it amounts to
a betrayal of the Constitution.

Nature & Scope of Delegation

​ •​ Parliament gets its power from the Constitution, not as an absolute or original
authority.

​ •​ It cannot delegate legislative powers freely like the British Parliament.

​ •​ In Britain, delegation is a political issue; in India and the USA, it’s a judicial issue.

Abdication of Power

​ •​ Abdication means giving up power, especially when the legislature lets the
executive or an outside body perform core legislative duties.

​ •​ This can be partial or complete.

​ •​ But not all delegation amounts to abdication. It depends on the facts of each
case.

Principles to Check Excessive Delegation

To judge whether a delegation is excessive, courts apply three key principles:

​ 1.​ Essential legislative functions (policy-making) cannot be delegated.

​ 2.​ Given modern-day complexities, the legislature can delegate details—but only
after setting the policy.

​ 3.​ If power is lawfully and clearly conferred on the executive, the delegation won’t
be excessive just because the legislature could have added more details.

Tests for Excessive Delegation

To decide if a statute involves excessive delegation, courts ask two main questions:

​ 1.​ Did the legislature delegate its essential legislative function?

​ 2.​ Did it lay down clear policy and guidelines for the delegate to follow?

​ •​ If yes to Question 1 or no to Question 2 → Excessive delegation.

​ •​ Otherwise → Delegation is valid.

The focus is not on form, but on the substance of what the legislature actually did.

Role of the Courts

​ •​ The Constitution gives law-making power to the people’s representatives.

​ •​ So, only they should perform core legislative duties.

​ •​ However, due to the wide scope of welfare activities, it’s not practical for the
legislature to handle every detail.

​ •​ Delegated legislation is therefore a practical necessity in modern governance.

Important Case: Vasanlal Maganbhai Sajnani v. State of Bombay (1961)

​ •​ Justice Subbarao clearly stated:

​ •​ Legislature must decide policy and rules of conduct.

​ •​ But it can’t work out all details, especially in a welfare state.

​ •​ It may delegate the task of implementing the policy to the executive.

​ •​ Caution: If the legislature:

​ •​ Fails to declare any clear policy,

​ •​ Provides vague standards,

​ •​ Allows the executive to modify core policy, or

​ •​ Loses control over delegated legislation,

​ •​ Then it amounts to unconstitutional self-effacement or abdication.

Conclusion

​ •​ Delegation is allowed but must be reasonable.

​ •​ The legislature must retain control, lay down policies, and only delegate
non-essential functions.

​ •​ Excessive delegation happens when it gives away its main responsibility without
proper limits or guidance.

PERMISSIBLE DELEGATED LEGISLATION

Delegated legislation is valid and acceptable when it falls within certain boundaries. Here are
the commonly accepted forms:

1. Commencement of an Act

Many statutes empower the Government to decide when an Act will come into force. For
example, Section 1(3) of the Consumer Protection Act, 1986 states that the Act shall come into
force on a date notified by the Central Government. Similarly, the Legal Services Authorities Act,
1987 was enforced only in 1997.

This kind of provision is valid because, as Sir Cecil Carr puts it:

“The legislature provides the gun and prescribes the target, but leaves the
task of pressing the trigger to the executive.”

2. Supplying Details

If the Legislature outlines the legislative policy, it can delegate the responsibility of filling in the
technical or procedural details to the executive. This is a common and valid form of delegation
and is often seen in what is called skeleton legislation, where the Legislature provides the
framework and the executive fills in the details.

For instance, Section 3 of the All India Services Act, 1951 authorizes the Central Government to
make rules about service conditions.

However, as noted by the Committee on Ministers’ Powers:

The exact scope of power delegated to a Minister should be clearly defined in

the statute, including any discretionary powers.

3. Inclusion and Exclusion Provisions

Some Acts initially apply only to certain areas or persons but empower the Government to
extend the provisions to additional areas or categories.

Example:

​ •​ The Transfer of Property Act, 1882 allowed the Government to extend it to

exempted areas.

​ •​ The Essential Commodities Act, 1955 authorized the Government to declare new
commodities as essential.

​ •​ The Indian Railways Act, 1890 allowed tramways to be brought within its scope.

This allows flexibility without changing legislative policy. However, in Hamdard Dawakhana,
such a provision was found unconstitutional.

4. Exclusion or Exemption Clauses

Certain statutes authorize the Government to exempt specific persons, areas, or industries from
the application of the Act.

Example:

​ •​ Section 36 of the Payment of Bonus Act, 1965 gives such power to the
Government.

This is helpful in managing unforeseen hardships during enforcement and allows adaptation
based on public interest.
5. Extension to New Employments

The Minimum Wages Act, 1948 was designed to fix minimum wages in certain scheduled
employments. However, it empowers the Government to extend its provisions to other
employments.

In Edward Mills Co. v. State of Ajmer (AIR 1955), this delegation was upheld because the
legislative intent to prevent exploitation was clear.

6. Suspension of Provisions

Some statutes allow the Government to temporarily suspend provisions in certain situations.

Example:

​ •​ Section 48(1) of the Tea Act, 1953 empowers the Central Government to
suspend the Act’s operation in specific circumstances.

7. Application of Existing Laws

Delegation is also valid when the executive is authorized to adopt laws already in force in other
regions with necessary adjustments. Since the legislative policy is already in place, this type of
delegation is constitutionally acceptable.

8. Modification of Laws

Sometimes, the executive is authorized to modify existing statutes before applying them to a
new context.

Example:

​ •​ Under the Delhi Laws Act, 1912, the Bombay Agricultural Debtors’ Relief Act,
1947 was extended to Delhi, with the income limitation removed by the Government.

This kind of power is more sensitive, as it borders on amending the law. Therefore:

​ 1.​ Necessity of such power must be established.

​ 2.​ Safeguards must be in place to prevent misuse.

9. Prescribing Punishments

The Legislature can authorize the executive to prescribe penalties, as long as:

​ •​ A maximum punishment is fixed by the parent Act.

​ •​ If a non-governmental authority is delegated this power, it must be approved by

the Government.

Example:

​ •​ Section 37 of the Electricity Act, 1910 allows the Electricity Board to set penalties
within limits.

10. Framing of Rules, Bye-laws, and Regulations

The delegation to frame subordinate legislation like rules or bye-laws is valid if:

​ •​ Such rules are laid before the legislature.

​ •​ The legislature has the power to amend or annul them.

11. Henry VIII Clause (Removal of Difficulties Clause)

This clause allows the Government to make minor changes in the law to resolve difficulties in its
implementation.

There are two types:

(i) Narrow Clause

Allows the executive to make necessary changes without conflicting with the parent Act.

Example:

​ •​ Section 34(1) of the Administrative Tribunals Act, 1985

This form is acceptable because it ensures administrative ease without altering the core law.

(ii) Wide Clause (Henry VIII Clause)

Allows the executive to even modify the parent Act or other Acts, often for a limited period.

This is controversial because it enables the executive to act like a legislature.

Origin: Named after King Henry VIII, known for bypassing Parliament and changing laws to suit
his will.

Example:

​ •​ Section 37(1) of the Payment of Bonus Act, 1965

Declared unconstitutional in Jalan Trading Co. v. Mill Mazdoor Sabha (AIR 1967) because:

​ •​ It gave final authority to the Government.

​ •​ Allowed wide discretion without adequate legislative guidance.

Contrary View (Minority): Justice Hidayatullah argued that Parliament merely enabled the
executive to resolve technical issues efficiently and did not delegate legislative powers.

Later View: In Gammon India Ltd. v. Union of India (AIR 1974), the Court adopted a liberal
approach and upheld a similar provision, stating it was merely for smooth implementation and
not legislative in nature.

Conclusion:

​ •​ The Government may use such clauses to address minor problems or

uncertainties.

​ •​ However, it cannot alter the core structure or policy of the Act under the guise of
‘removing difficulties’.

​ •​ The Committee on Ministers’ Powers recommended that Henry VIII clauses be:

​ •​ Used only in exceptional cases.

​ •​ Restricted to bringing the Act into force.

​ •​ Valid for a limited period (e.g. one year).

Impermissible Delegation (Functions That Cannot Be Delegated)

While the Indian Constitution does not explicitly prohibit the delegation of legislative powers,
certain functions are considered non-delegable due to their essential legislative character.
These are:

(a) Essential Legislative Functions

The legislature cannot delegate its core responsibilities, such as formulating legislative policy or
principles. Doing so would result in creating a parallel legislature, which is unconstitutional.

(b) Power to Repeal Law

The repeal of a law is a purely legislative function. Therefore, delegating this power to the
executive constitutes excessive delegation and is ultra vires.

(c) Power to Modify a Law

When a statute allows the executive to modify the Act in any significant way, it amounts to
delegating essential legislative power, which is impermissible unless the changes are minor and
non-essential.

(d) Granting Exemptions

The legislature cannot delegate exemption powers without providing clear norms or policy
guidance for the executive to follow. Arbitrary or unguided exemptions would amount to
excessive delegation.

(e) Removal of Difficulties (Henry VIII Clause)

A ‘removal of difficulties’ clause cannot be used to grant the executive the power to alter or
override essential provisions of the Act. Such clauses must not result in delegating legislative
power.

(f) Retrospective Operation

Only the legislature has the plenary power to enact laws with retrospective effect. This power
cannot be delegated to the executive.

(g) Application of Future Laws

While existing laws can be adopted or extended by the executive, adopting laws that may be
passed in the future is not allowed, as this is a core legislative function.

(h) Imposition of Taxes

The power to impose taxes is a legislative function. According to Article 265 of the Constitution,
no tax can be levied or collected without a law passed by the legislature. Hence, taxation
powers cannot be delegated to the executive.

(i) Ouster of Court Jurisdiction

The legislature cannot delegate the authority to remove or oust court jurisdiction. This is a
purely legislative matter and must be handled by the legislature itself.

(j) Creation of Offenses and Penalties

Declaring an act as an offense and prescribing penalties are essential legislative functions.
Delegation is only valid when the standards and limits are clearly defined in the parent statute.
Sub-Delegation Explained

Sub-delegation happens when a statute gives certain rule-making powers to an executive

authority, and that authority then passes on some or all of those powers to a subordinate agency
or officer. In other words, when a delegate further delegates its power, this process is called
sub-delegation. This process can occur over several stages.

​ •​ Key Point: A rule-making body can only delegate power if the enabling Act
specifically allows it or if such delegation is implied as necessary. The traditional maxim
“delegatus non potest delegare” (a delegate cannot further delegate) normally applies, but the
legislature may provide for sub-delegation under controlled conditions. If an authority passes on
its power yet still retains substantial overall control, then the general prohibition may not be
triggered.

Originally, this maxim was applied to judicial powers—meaning a judge is expected to decide
cases personally unless a statute explicitly allows otherwise. By analogy, unrestricted
sub-delegation of legislative power is improper; appropriate safeguards must be in place if such
further delegation is to be permitted.

An Example: The Essential Commodities Act, 1955

​ •​ First-Stage Delegation:

Section 3 of the Act gives the Central Government the authority to make rules. This is the initial
delegation.

​ •​ Second-Stage Delegation (Sub-Delegation):

Under Section 5, the Central Government is allowed to delegate some of these powers to its
officers, State Governments, or their officers—usually to the States.

​ •​ Third-Stage Delegation (Sub-Sub-Delegation):

When a State Government then passes these powers on to its officers, that is a further step in
the delegation process.

For example, with the Sugar Control Order, 1955:

​ •​ The Central Government created the order (first-stage delegation).

​ •​ It then assigned certain functions and powers to the Textile Commissioner
(second-stage delegation).

​ •​ Finally, Clause 10 allowed the Textile Commissioner to authorize another officer

to exercise some of his powers (third-stage delegation).

Rationale Behind Sub-Delegation

Supporters argue that:

​ 1.​ When power is delegated, it often must be passed on further to handle the details
effectively.

​ 2.​ Sub-delegation is a natural, ancillary part of the delegated legislative process.

​ 3.​ If sub-delegation were disallowed, it would undermine the authority given by the
legislature to the executive.

Sub-delegation is considered valid either when the statute expressly provides for it or when it
can be inferred as necessary from the statute’s overall purpose.

Delegated Legislation (Control and Safeguards):

Introduction

There is considerable doubt as to whether Parliament fully appreciates the vast extent of
delegated legislation and the degree to which it has surrendered its own functions—or how far
that practice might be abused. Today, the issue is not whether delegated legislation is desirable,
but rather what controls and safeguards must be put in place to prevent the executive’s
rule-making power from being misused or misapplied.

Justice Subbarao has observed that courts must give a fair, generous, and liberal interpretation
when deciding if the legislature has exceeded its limits. At the same time, courts must be careful
not to stretch this liberal interpretation so far that they uncover a latent legislative policy to justify
an arbitrary power given to the executive. It is the responsibility of the courts to promptly strike
down any blanket power that the legislature grants to the executive.

Because modern governance increasingly relies on delegated legislation, controlling how the
executive uses these powers is crucial. A balanced approach is needed to reconcile two
conflicting principles: on one hand, the practical need for broad delegation, and on the other, the
mandate that essential legislative functions should not be transferred to administrative bodies.
While delegation has become inevitable, ensuring proper controls is essential.

Control mechanisms should be implemented at two levels:

​ •​ At the Source: Safeguards must be incorporated when the legislature grants the
executive legislative power.

​ •​ After Delegation: Additional safeguards should be available to check any misuse

or abuse of that power by the executive.

Controls over delegated legislation fall into three main categories:

​ 1.​ Judicial Control

​ 2.​ Legislative Control

​ 3.​ Other Controls

Judicial Control

In India, the judicial review of administrative rule-making is carried out under the normal
principles that govern administrative actions. However, the criteria for reviewing subordinate
legislation differ from those applied to primary legislative acts—subordinate legislation does not
enjoy the same degree of immunity as acts passed directly by the legislature.
​ •​ No Immunity from Judicial Review:

Judicial review of administrative rule-making cannot be entirely blocked by the enabling statute.
For example:

​ •​ In State of Kerala v. Unnikrishnan (2007 SSC), the court ruled that an enabling
Act cannot foreclose judicial review of the rules made under it.

​ •​ In State of Kerala v. KMC Abdullah and Co. (AIR 1965 SC), the Supreme Court
held that even phrases such as “shall not be called in question in any court” do not prevent the
challenge of the rules.

​ •​ Similarly, in General Officer Commanding-in-Chief v. Subhash Chandra Yadav

(1988 SCC), the Court confirmed that a provision stating that rules published in the Official
Gazette are “as if enacted” cannot strip away the power of judicial review.

Thus, even when an Act seems to grant unchecked rule-making power to the executive, the
judiciary retains the authority to review such delegated legislation and ensure that it remains
within constitutional limits.
Constitutionality of the Parent Act
There is a strong presumption in favor of the constitutionality of every law. In other words,
unless a case is clear and beyond doubt, a law should be assumed to be constitutional. When
faced with two possible interpretations—one that validates the law and one that invalidates
it—the interpretation that preserves its validity must be preferred. Courts, when assessing
constitutional validity, are not concerned with whether a law is wise or just; as long as a law is
enacted within the powers granted to the legislature and does not violate any constitutional
restrictions, it must be upheld.

An important initial question in reviewing delegated legislation is whether the parent statute that
grants the administrative power is itself constitutional. If the parent Act is found to be
unconstitutional, then all regulations or rules made under it would also be invalid. The parent Act
might be unconstitutional for various reasons, such as:

​ 1.​ Excessive Delegation

​ 2.​ Violation of Fundamental Rights

​ 3.​ Issues with the Distribution of Powers between the Centre and the States

Constitutionality of Delegated Legislation

There is likewise a presumption in favor of the constitutionality of delegated legislation. A court
will declare such legislation unconstitutional only when there is a clear and undeniable violation
of constitutional provisions by the parent statute or the delegated rules.

Sometimes courts may be asked to examine whether the delegated legislation itself is
constitutional. This situation may occur even if the parent Act is constitutional. For example, if a
rule made under a valid Act conflicts with a constitutional provision—such as a fundamental
right—this challenge can be raised. Consider the following examples:

​ •​ Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh (AIR, 1954):

Some provisions of the UP Coal Control Order, 1953 (made under Section 3(2) of the Essential
Supplies Act, 1946) were declared ultra vires because they infringed Article 19(1)(g), a
fundamental right.

​ •​ Rashid Ahmed v. Municipal Board (1950):

Certain bye-laws made by a municipality were struck down as they violated Article 19(1)(g).

​ •​ Narendra Kumar v. Union of India (1960):

This case examined whether delegated legislation made under a valid Act could be challenged
on constitutional grounds. For instance, the Non-Ferrous Metal Order, 1958 (issued under the
Essential Commodities Act, 1955) was scrutinized. In Hari Shankar Bagla v. State of Madhya
Pradesh (AIR, 1954), the Act was upheld, but Narendra Kumar clarified that while the law itself
might be constitutional, an order issued under it could still be challenged if it exceeded what was
authorized by the statute.

​ •​ Air India v. Nargesh Meerza (AIR, 1981):

The Supreme Court ruled that certain regulations concerning the service conditions of air
hostesses were discriminatory under Article 14 of the Constitution.

​ •​ Rule by the Bar Council under the Advocates Act:

A rule barring enrollment of persons involved in another profession was upheld because it did
not violate Article 14.

Doctrine of Ultra Vires

“Ultra vires” literally means “beyond power” or “beyond authority.” An act is considered ultra
vires if it is carried out by an individual or entity without the legal power or jurisdiction to do so.
In essence, this doctrine holds that an act is invalid if it exceeds the authority granted to a
person or body. Importantly, not every act that exceeds granted power is necessarily illegal; the
key point is that it was performed beyond the limits of the power possessed.

Delegated legislation is subject to judicial review, meaning that courts can assess its validity. In
virtually all democratic systems, courts apply two primary tests when examining delegated
legislation:

​ 1.​ Substantive Ultra Vires:

​ •​ This occurs when the legislation itself goes beyond the authority conferred by the
parent statute or the Constitution.

​ •​ Essentially, if a public authority acts outside its legal limits, its action is ultra vires.

​ •​ Schwartz explains this by stating: “If an agency acts within the statutory limits
(intra vires), the action is valid; if it acts outside (ultra vires), it is invalid.”

​ •​ A few circumstances where delegated legislation may be deemed substantively

ultra vires include:

​ •​ Where the parent Act is unconstitutional

​ •​ Where the parent Act improperly delegates essential legislative functions

​ •​ If the delegated rule conflicts with general law or with the parent Act itself
​ •​ Unreasonableness or mala fide (bad faith) action

​ •​ Unauthorized sub-delegation or exclusion of judicial review

​ •​ Retrospective (retroactive) effect

For the delegation to be valid, the first requirement is that the parent or enabling statute itself
must be constitutional. If this statute is found ultra vires, then any rules made under it are
automatically invalid. For instance, under the Defence of India Act, 1939, the Central
Government was empowered to make rules for the requisition of immovable property, but
because this subject did not fall within the proper jurisdiction of the Federal Legislature, the rule
was declared invalid (Tan Bug Taim v. Collector of Bombay, AIR 1946).

Similarly, in Chintamanrao v. State of M.P., the parent Act authorized a Deputy Commissioner to
prohibit the manufacturing of bidis in certain areas during specified periods. The order was
declared ultra vires because the Act infringed on the fundamental right to carry on any
occupation, trade, or business under Article 19(1)(g) of the Constitution.

1. When the Parent Act Delegates Essential Legislative Functions

It is a long‐established principle that the core legislative functions must be performed

exclusively by the legislature. These essential functions—including setting legislative policy and
converting that policy into binding rules—cannot be transferred to any other state organ. In our
constitutional scheme, this means that the legislature is not allowed to create a parallel
legislative body by delegating these fundamental responsibilities.

2. When Delegated Legislation Is Inconsistent with the Parent Act

Delegated legislation may be invalidated on the grounds that it exceeds the authority granted by
the enabling statute. The following points summarize this ground for challenge:

​ •​ Strict Conformity Required:

Any rule or regulation made under delegated power must strictly adhere to the limits and
conditions set by the parent Act. If the rule goes beyond these bounds, it is considered ultra
vires.

​ •​ Illustrative Case:

In Indian Council of Legal Aid & Advice v. Bar Council of India, the Bar Council framed a rule
that barred persons over 45 years of age from being enrolled as advocates. However, because
the enabling Act permitted the Council only to prescribe conditions applicable after enrollment,
not to bar enrollment altogether, the rule was held ultra vires.

​ •​ Inconsistencies with the Parent Act:

This principle is not unique to India. Under English law, any regulation that renders the
provisions of an Act ineffectual will be struck down. In India as well, if a delegated regulation
cannot be reconciled with the parent Act or if it contradicts its purpose, it must be declared
invalid. Cases such as Chandra Bali v. R. and examples like the bye-laws in Mohd. Yasin v.
Town Area Committee or State of Karnataka v. Ganesh Kamath illustrate that when subordinate
legislation exceeds the intended scope of the parent Act, it will be considered ultra vires.
Similarly, in Kunj Bihari Bihari Lal v. State of H.P., a rule that improperly included tea plantations
under the H.P. Ceiling on Land Holdings Act was struck down for being beyond the Act’s scope.

​ •​ Judicial Scrutiny of Discretion:

Even if a parent Act allows an administrative agency broad discretionary power—for example, to
make rules it deems necessary for giving effect to the Act—this discretion is not unfettered and
remains subject to judicial review. The agency must exercise its power strictly within the limits
conferred by the parent Act.

3. When Delegated Legislation Conflicts with General Law

Apart from being consistent with the Constitution and the parent Act, delegated legislation must
also conform with other statutory laws enacted by the legislature. Any subordinate regulation
that conflicts with these general laws is void, based on the principle that no executive rule may
run contrary to the law of the land.

4. When Delegated Legislation Is Unconstitutional

A delegated rule may also be challenged on constitutional grounds even if the parent Act is
valid. For instance, if a regulation violates a fundamental right, it will be struck down.

​ •​ Example 1: In Narendra Kumar v. Union of India, although the enabling Act was
constitutional, an order issued under it was found unconstitutional because it exceeded the
parameters set by the Act.

​ •​ Example 2: In Hindustan Times v. State of U.P., a directive by the State

Government, which imposed a levy on government advertisement funds to deduct from
journalists’ pension funds, was ruled to be ultra vires as it went beyond what Parliament had
authorized.

5. Unreasonableness
Delegated legislation may be annulled if it is found to be unreasonable. The test of
unreasonableness applies if a rule is manifestly unjust, capricious, inequitable, or partial.

​ •​ Judicial Approach: The courts do not reject a rule simply because they disagree
with it; rather, they will invalidate it only if it is clearly oppressive or unjust beyond what a
reasonable person would accept.

​ •​ Example: In Air India v. Nargesh Meerza, regulations terminating an air hostess’s

service on the first pregnancy were found to be extremely arbitrary. Another instance is seen in
Rajasthan SRTC v. Bal Mukund Bairwa, where a rule allowing an employer to dismiss a
permanent employee with only three months’ notice (without a hearing) was struck down as
unreasonable.

6. Mala Fide (Bad Faith)

The exercise of any delegated legislative power must be done in good faith. If an agency uses
its rule-making power in a manner tainted by bad faith or dishonesty, that delegated legislation
may lose its protection and be invalidated. Although opinions on the precise implications of mala
fide in this context have varied among judges, it remains a recognized ground for review.

7. Exclusion of Judicial Review

Some statutes attempt to immunize the rules made under them from judicial scrutiny by stating
that such rules “shall have effect as if enacted in the Act,” “shall be final,” or that they “shall not
be called in question in any court.”

​ •​ The Herschel Doctrine:

In England, the House of Lords initially held in Institute of Patent Agents v. Lockwood (1894
A.C.) that if rules are declared as part of the Act, they should be treated as such. However, this
approach was later modified in Minister of Health v. King (1931 A.C.)—if the rules conflict with
the parent Act, the parent Act prevails.

​ •​ Indian Context:

In India, the application of the Herschel Doctrine has been inconsistent. For example, Ravalu
Shubha Rao v. Income Tax Commissioner (AIR 1956 SC) followed the Doctrine, while other
cases did not. Nonetheless, the underlying principle remains that statutory attempts to exclude
judicial review cannot entirely prevent courts from examining the validity of delegated legislation.

8. Retrospective Operation
Delegated legislation generally is not permitted to operate retroactively unless the parent Act
explicitly grants that power. Although the legislature may choose to enact laws with
retrospective effect (subject to constitutional limitations), administrative rules made under
delegated authority do not automatically inherit this property unless expressly authorized by the
enabling statute.

This rephrased version explains the various grounds on which delegated legislation may be
found ultra vires—whether by exceeding the authority of the parent Act, conflicting with general
law, being unreasonable or unconstitutional, being applied in bad faith, excluding judicial review,
or operating retrospectively.

2. Procedural Ultra Vires

Procedural ultra vires refers to situations where delegated legislation fails to follow the specific
procedural rules set forth by the parent Act or general law. When an enabling statute requires
that certain procedures be followed—such as consulting with affected parties, publishing draft
rules or bye-laws, or laying them before Parliament—the delegate is obliged to adhere to these
steps. Failure to do so can render the resulting rules invalid.

However, it is important to note that not every procedural misstep automatically voids delegated
legislation. The impact depends on whether the breached requirement is mandatory or merely
directory. For a mandatory requirement, strict compliance is necessary; for a directory
requirement, substantial compliance is usually sufficient.

Procedural Requirements

​ 1.​ Publication

Object:

A basic legal principle is that “ignorance of the law is no excuse,” and the public must have
access to the law. While Acts of Parliament receive extensive publicity during their legislative
process, delegated legislation often does not. Therefore, publication ensures that the public is
aware of the rules and can know their rights.

Mandatory vs. Directory:

​ •​ In some cases (as seen in Harla v. State of Rajasthan), the failure to publish a
regulation entirely prevents the law from taking effect.

​ •​ In other instances, even if the statutory requirement regarding the mode or

manner of publication is not strictly followed, the rule may still be valid provided that it is made
public in a reasonably acceptable way.
Effect:

Once published or promulgated, the delegated legislation becomes effective from the date of
publication. If not published at all, the instrument is rendered ineffective.

​ 2.​ Consultation

Object:

Consultation is a key safeguard designed to prevent the abuse of power by allowing affected
interests to participate in the rule-making process. As Wade and Philips have noted,
consultation can prevent conflicts between the executive and those most affected by its
decisions. It allows the authority to gather valuable insights and ensures that a range of
perspectives is considered before finalizing the rules.

Nature and Scope:

​ •​ Consultation involves a meaningful exchange of views among the affected

parties—it does not necessarily mean that all parties must agree or provide consent.

​ •​ Its purpose is to facilitate thorough deliberation, enabling the rule-making

authority to understand the relative merits of different viewpoints.

​ •​ Even when not explicitly required by law, consultation can build greater trust
among those who will be governed by the rules.

Mandatory vs. Directory:

There is no universal rule as to when consultation should be deemed mandatory versus

directory. In the absence of clear legislative guidance regarding the consequences of failing to
consult, courts will assess the issue based on:

​ •​ The overall purpose and scope of the legislation,

​ •​ The object that consultation is intended to serve,

​ •​ The anticipated impact of the rule on the rights of those consulted.

For instance, in New India Industrial Corporation Limited v. Union of India (AIR 1980), the
Supreme Court emphasized that incorporating consultation into the law-making process not only
promotes democratic values but also enhances administrative efficiency by ensuring that the
benefits of good governance reach citizens effectively.

Legislative/Parliamentary Control
While it is the primary function of the legislature to make laws, circumstances may require that
legislative power be partly delegated to the executive. When Parliament grants such power, it
has not only the right but also the duty—as the principal—to monitor how the executive (its
agent) uses that power. Since the legislature is the one delegating authority, it is responsible for
supervising and ensuring that the executive does not abuse its delegated powers. In India, this
responsibility has led to a well-developed system of legislative oversight over delegated
legislation.

Parliament may delegate legislative power, for example, to the executive, but it must also make
sure that the exercise of that power is done properly and that there is no misuse. As observed in
Arvind Singh v. State of Punjab (1979 SCC) by Justice Krishna Iyer, continuous and effective
parliamentary control over delegated legislation is a constitutional necessity.

Purpose of Legislative Control:

The primary aim of parliamentary control is to monitor the rule-making authorities, ensuring they
do not misuse their power, and to provide Parliament with the opportunity to criticize or veto any
abuse. This mechanism is often described as the “legislative veto.”

Because the risk of abuse is inherent when delegating legislative functions to the
executive—and judicial review alone may not adequately check administrative
excesses—political oversight by Parliament becomes essential. Broad delegation and a
generalized standard of control have, in some cases, limited the scope of judicial review, making
robust parliamentary control even more necessary.

Comparative Perspectives:
​ •​ United States:

In the U.S., congressional oversight over delegated legislation is quite limited. The “laying”
technique—where rules are formally presented to the legislature—is rarely used, and there is no
dedicated Congressional committee to scrutinize such rules. The U.S. Constitution entrusts
courts with reviewing the legality of administrative rulemaking, and techniques like negative
resolution (used extensively in Britain) would be considered unconstitutional there.

​ •​ England:

By contrast, in England, parliamentary sovereignty means that control over administrative

rulemaking is broad and effective. Under the Statutory Instruments Act 1946, all administrative
rulemaking is subject to review by Parliament through a select committee on statutory
instruments. This control is notably effective because it operates in a non-political environment
free from party discipline (e.g., the three-line whip).

​ •​ India:

In India, parliamentary control of administrative rulemaking is implicit in the Constitution since

the executive is responsible to Parliament. This oversight may take the form of formal and
informal review processes that ensure that delegated rule-making remains within the limits set
by the legislature.

Modes of Legislative Control:

Legislative control over delegated legislation can be implemented through various methods,
including:

​ 1.​ Memorandum on Delegation:

A formal document that outlines the scope and limits of the delegated power.

​ 2.​ Laying Procedure:

​ •​ Direct General Control: Where the rules are laid before Parliament in a general
manner.

​ •​ Direct Special Control: Where specific rules are presented in detail for scrutiny.

​ 3.​ Indirect Control/ Scrutiny Committees:

Committees (such as a select committee) that review and monitor the implementation and effect
of the delegated legislation.

Memorandum on Delegation
The first step in Parliament’s oversight of delegated legislation begins when a bill proposing
delegation is introduced. According to established parliamentary rules, any bill that involves
delegating legislative power must be accompanied by a memorandum. This document:

​ •​ Explains the proposal for delegation,

​ •​ Outlines its scope,

​ •​ Indicates whether the delegation is of an exceptional or normal nature.

This memorandum serves an informational purpose by drawing Parliament’s attention to the

specifics of the proposed delegation. The Lok Sabha committee on subordinate legislation has
stressed that such memoranda are mandatory. They must provide a comprehensive report
covering:

​ •​ The extent of power being delegated,

​ •​ The points that the subordinate rules may cover,

​ •​ The identities or details of the subordinate authorities expected to exercise that

power,

​ •​ The manner in which this power should be used.

The Speaker may refer bills with delegated legislative provisions to a committee for further
examination.
Laying Procedure

Laying procedure is the method by which delegated legislation is formally placed before
Parliament for review. This process is a key form of direct parliamentary control and operates in
two main forms:

1. Direct General Control

This takes several forms:

​ •​ Debate on the Parent Act:

Members discuss the necessity, extent, and form of the delegated legislative power.

​ •​ Questions and Notices:

Any member may ask questions regarding the delegation. Dissatisfied members can trigger a
discussion under Rule 59 of the Lok Sabha Rules.

​ •​ Resolutions and Motions:

In urgent cases, a member can move a resolution or notice to address issues with the
delegation, particularly if the government’s explanation is unsatisfactory.

​ •​ Vote on Grant:

During budget sessions, members may propose cuts or conditions that effectively bring scrutiny
to the rule-making power of a Ministry.

​ •​ Private Members’ Bills or Joint Session Debates:

Although rarely used, these methods provide an avenue for Parliament to discuss and modify
the delegation.

2. Direct Special Control

This is exercised by requiring that all rules and regulations framed by an administrative authority
be “laid” on the table of the House. This laying process in effect subjects the newly made rules
to the scrutiny of the legislature.

International Comparative Practices

​ •​ United States:

Although Congress has limited control over delegated legislation—using a negative resolution
procedure and lacking a dedicated committee—the laying technique is still occasionally used.
An example is found in the Reorganisation Acts (1939–1969), though legislative oversight there
remains relatively weak.

​ •​ England:

Due to the principle of parliamentary sovereignty, England exercises broad and effective control.
The Statutory Instruments Act, 1946 mandates that all delegated legislation be laid before
Parliament. Depending on the provision, such rulemaking may:

​ •​ Take effect immediately but be subject to annulment by an adverse resolution

(negative procedure),

​ •​ Require an affirmative resolution before coming into force,

​ •​ Or be deferred until it is approved.

Laying Procedure in India

In India, the laying of delegated legislation can occur in several forms. In Atlas Cycle Industries
Ltd. v. State of Haryana (1979 SCC), seven methods were identified:

​ 1.​ Laying without further procedures:

Rules come into effect immediately upon being laid merely for information.

​ 2.​ Laying subject to negative resolution:

Rules become effective immediately but will cease if an adverse resolution is passed.

​ 3.​ Laying subject to affirmative resolution:

There are two subtypes:

​ •​ The rules have no effect unless approved by each House,

​ •​ Or they cease unless they receive affirmative approval.

​ 4.​ Laying in draft subject to negative resolution:

Draft rules are tabled and then become effective after a set period (e.g., 40 days), unless
rejected.

​ 5.​ Laying in draft subject to affirmative resolution:

The draft rules must be explicitly approved before they take effect.
​ 6.​ Laying with deferred operation:

The rules are not put into effect until a later date, after parliamentary review.

​ 7.​ Laying with immediate effect but subject to annulment:

The most common form—rules come into force immediately but can be annulled by Parliament
within a specified period (often using a negative resolution process).

Historically, India’s earliest laying provisions appeared in the Immigration Act, 1922, and later in
statutes like the Insurance Act, 1938, and the Motor Vehicles Act, 1939. Over time, more Acts
(including the Central Excise Act, Salt Act, and Aircraft Act) introduced various laying
requirements, sometimes with specific periods for annulment or modification (ranging from 7
days to 40 days, as in England).

The Delegated Legislation (Amendment) Act, 1983, later amended 50 statutes to introduce or
enhance laying provisions before both the State Legislature and Parliament.

A typical clause might require that every rule made under a statute be laid before each House
as soon as possible within a 30-day period (which could be spread over one or several
sessions). During the subsequent session, if both Houses decide to modify or annul the rule,
then the rule will either take effect in the modified form or not at all. Notably:

​ •​ The rules come into effect when made.

​ •​ Any resolution to modify or annul the rules must be initiated by a member of

Parliament (not the government).

​ •​ The phrase “as soon as may be” often results in delays, diminishing the
effectiveness of this control mechanism.

​ •​ Such laying provisions are generally considered directory (non-mandatory) rather

than strictly mandatory.

Consequences of Failure to Lay

The effects of failing to lay delegated legislation can vary:

​ •​ In England:

Earlier cases like Bailey v. Williamson (1873) treated the laying condition as directory. However,
following the Statutory Instruments Act, 1946, and R. v. Sheer Metalcraft (1954), it became clear
that delegated legislation is valid only after being laid before Parliament.

​ •​ In India:
The Supreme Court in Express Newspaper (P) Limited v. Union of India (1958 AIR SC) opined
that the laying requirement is mandatory. Yet, in the Re Kerala Education Bill (1958 AIR SC), the
Court emphasized that the rules become effective only after being laid, with the possibility of
amendments.

In Jan Mohammed Noor Mohammad Bagban v. State of Gujarat (1966 AIR SC) and M.K.
Papiah and Sons v. Excise Commissioner (1975 SCC), the courts held that rules could become
valid upon creation if the Act did not specifically require that they be laid before the legislature
as a condition precedent.

Mathew J. also noted that while a diminished parliamentary watchdog on delegated legislation is
regrettable, it is sometimes an unavoidable consequence of the complexities of modern
governance. Ultimately, whether failure to lay renders delegated legislation invalid depends on
how the specific laying clause is drafted: if it is a condition precedent, non-compliance
invalidates the rule; if it is merely a negative resolution provision, the rule may still take effect
immediately.

INDIRECT CONTROL / SCRUTINY COMMITTEES

Purpose:

Simply placing rules before Parliament is not always enough. Even when this is done, those
rules must be thoroughly reviewed. To strengthen Parliamentary control over delegated
legislation, India has established two scrutiny committees:

​ 1.​ Lok Sabha Committee on Subordinate Legislation

​ 2.​ Rajya Sabha Committee on Subordinate Legislation

Background:

In 1950, the Law Minister suggested forming a committee modeled after the UK’s Select
Committee on Statutory Instruments (1944). Its aim was to ensure that rule-making by the
executive stays within the limits intended by Parliament.

Lok Sabha Committee was formed on 1st December 1953.

​ •​ Composed of 15 members, nominated by the Speaker for one year.

​ •​ Chairperson is appointed by the Speaker. If the Deputy Speaker is a member, he

becomes Chairperson.

​ •​ This committee can:

​ •​ Appoint sub-committees

​ •​ Summon persons or documents

​ •​ Refer issues for deeper examination

Comparison with UK:

​ •​ Indian committees have wider powers than their British counterparts.

​ •​ UK Committees can only request memos or appearances, while Indian

committees can compel attendance and document production.

Functions of the Lok Sabha Committee (Rule 223 of Lok Sabha Rules):

The Committee checks whether:

​ 1.​ Rules align with the Act’s general purpose

​ 2.​ Matters in rules should have been part of the main Act

​ 3.​ Rules impose taxes

​ 4.​ They restrict court jurisdiction

​ 5.​ Rules have retrospective effect

​ 6.​ They involve spending from the Consolidated Fund

​ 7.​ There’s undue delay in publication or laying of rules

​ 8.​ Any provision needs further clarification

Between 1953–1961, the Committee reviewed around 5300 rules and submitted 19 reports.

The Rajya Sabha Committee, formed in 1964, performs a similar role.

Key Recommendations of the Scrutiny Committees:

​ 1.​ Judicial Review should not be taken away by rules.

​ 2.​ Taxation powers should not be conferred via rules.

​ 3.​ Rules must be clear and unambiguous.

​ 4.​ Retrospective operation of rules should only occur if authorized by the parent Act.
​ 5.​ Legislative policy must be made by the legislature; the executive should only fill
in details.

​ 6.​ Sub-delegation should be limited and safeguarded.

​ 7.​ Discriminatory rules should be avoided.

​ 8.​ Rules should not exceed the authority given by the parent Act.

​ 9.​ There should be no delay in making rules.

​ 10.​ Defects pointed out should be rectified quickly.

​ 11.​ Rules should be laid before Parliament promptly, and any delay should be
explained.

​ 12.​ Final interpretation of rules should not rest with the administration.

​ 13.​ Rules must include short titles, references to past amendments, etc.

​ 14.​ Rules should be widely publicized.

Need for Reform:

To ensure meaningful Parliamentary control, India needs:

​ •​ A stronger role for Parliamentary committees

​ •​ A separate law like the UK’s Statutory Instruments Act, 1946

​ •​ Expert bodies to support Parliamentary scrutiny

OTHER CONTROLS (Non-Judicial / Non-Parliamentary):

Besides courts and Parliament, other mechanisms also help regulate delegated legislation:

1. Limiting Delegate Powers:

The parent Act must clearly define and limit the delegate’s powers. Vague or broad powers may
lead to misuse or excessive interference with individual rights.

2. Judicial Interpretation:
Courts must interpret rules to avoid giving blanket powers to the executive. It is unwise to trust
individual discretion alone, no matter how senior the official. Rule of law must prevail over
individual judgments.

Key Judicial Observations:

​ •​ Maneka Gandhi v. Union of India (1978):

The Court stated that while there may be no appeal against a Central Government order, the
power is expected to be exercised responsibly due to the high authority involved.

​ •​ S.R. Bommai v. Union of India (1994):

The Court emphasized that even in collective decisions, courts must be cautious of potential
misuse of power.

​ •​ K. Ashok Reddy v. Government of India (1994):

The Supreme Court held that decisions made by high constitutional authorities (e.g. Chief
Justice of India) based on objective criteria help ensure independence and fairness.

Statutory Safeguards in Central Laws:

​ •​ Prior approval required:

Example – Section 17, Probation of Offenders Act, 1958 requires Central Government approval
for state-made rules.

​ •​ Previous publication required:

Example – Section 29, Minimum Wages Act, 1948 mandates prior publication in the Official
Gazette.

​ •​ Consultation with affected parties:

Example – Section 59, Mines Act, 1952 requires consultation before making rules.

Democratic Concerns:

Although lawmakers hold the power to make laws, in practice, bureaucrats and a small elite
control the process. This centralization:
​ •​ Reduces the quality of legislation

​ •​ Weakens democratic participation

Call for Reform:

There should be social audit and public participation in law-making. Unlimited delegation to the
executive without checks undermines responsible government and democracy.

As Justice Krishna Iyer warned:

“We must be cautious of current trends — not because danger is imminent,

but because it could cost society dearly in the future.”

Conclusion:

While delegation of legislative power is necessary, it must be:

​ •​ Guided by clear legislative policy

​ •​ Subject to checks and balances

​ •​ Carefully monitored by Parliament, judiciary, and public oversight

Any excessive or unguided delegation goes against the constitutional spirit and democratic
values.

Administrative adjudication
Administrative Adjudication and Natural Justice

Administrative decision-making, also known as administrative adjudication, has emerged as a

result of the expanding role of the government and the increasing socialization of law. Just like
delegated legislation, it developed due to the inability of the traditional judicial system to deliver
the volume and quality of justice required in a modern welfare state. The traditional court system
often follows an individualistic and rigidly formal process, which is not always suitable for the
dynamic needs of a welfare-oriented society.

In this context, natural justice has become a key principle ensuring fairness in administrative
decision-making. Originating from common law, it guarantees essential procedural rights and
has now gained wide application. Courts generally presume that natural justice applies to the
exercise of most statutory powers, unless a law explicitly and clearly excludes it.

Natural justice today is seen as a synonym for fairness and is a central element of just
governance. Its principles are not fixed or rigid; instead, they are flexible and
context-dependent, guided by common sense and fairness. The core question in determining
whether natural justice has been followed is:

“Have the authorities acted fairly?”

This was affirmed in Dev Dutt v. Union of India (2008) 8 SCC 725.

The primary aim of following natural justice is to prevent injustice and ensure fair play, as
emphasized in Bharat Ratna Indira Gandhi College of Engineering v. State of Maharashtra AIR
2011 SC 1912.

Today, most decisions that affect individual rights—whether related to property, employment, or
benefits—are made by administrative bodies rather than courts. Sometimes, adjudication is only
a minor aspect of administration; other times, it closely mirrors the traditional judicial process.

In summary, administrative adjudication is a natural outcome of the welfare state’s demands,

and natural justice ensures fairness and transparency in the growing domain of executive
decision-making.

Need for Administrative Adjudication

​ 1.​ Quick, Affordable, and Informal Justice:

Administrative adjudication offers a system that is faster, cheaper, and less formal than
traditional court proceedings.

​ 2.​ Setting New Standards:

It helps develop new public law standards based on moral and social principles, moving away
from the rigid, individualistic standards used by courts.

Example: The Employees’ State Insurance Scheme required new healthcare standards for
insured individuals—something only administrative bodies with expertise could manage
effectively.

​ 3.​ Focus on Preventive Justice:

There’s an increasing emphasis on preventing harm rather than punishing it. Administrative
bodies are better equipped to implement preventive measures through adjudication.

​ 4.​ Convenience vs. Necessity:

Critics argue that administrative adjudication was introduced more for governmental
convenience than public need. Concerns are raised about the independence and legal discipline
of administrators acting as judges.
Problems in Administrative Adjudication

​ 1.​ Multiplicity and Complexity:

Numerous tribunals and bodies operate under various statutes, often leading to inconsistent
decisions and procedures. Since natural justice principles are flexible, this can result in arbitrary
outcomes.

​ 2.​ Lack of Uniform Appeal System:

There’s no standard appeal mechanism—some matters go to independent tribunals, others to

higher administrative authorities, and some don’t allow appeals at all.

​ 3.​ Opaque and Anonymous Decision-Making:

Many agencies do not publish their decisions, leading to a lack of transparency and public
accountability.

​ 4.​ Unpredictable Rulings:

Without following the doctrine of precedent, administrative agencies often make inconsistent
rulings, disrupting legal uniformity and violating the rule of law.

​ 5.​ Mixing of Roles:

In many cases, the same authority acts as both judge and prosecutor, making impartiality
questionable.

​ 6.​ No Strict Evidence Rules:

The Evidence Act doesn’t apply, and decisions often rely on judge-made rules like “No
Evidence”—which is an inadequate safeguard.

​ 7.​ Departmental Bias:

Administrative proceedings often carry a bias towards guilt, with actions guided more by policy
or departmental priorities than legal principles.

​ 8.​ Plea Bargaining Abuse:

Lower-level employees may be pressured into admitting guilt in exchange for lesser
punishment—a practice open to misuse.

​ 9.​ Political Influence:

Administrative bodies are often vulnerable to political pressure and interference.

​ 10.​ Lack of Reasoned Orders:

Many administrative authorities are not required to give reasons for their decisions, which
undermines confidence in the process.

​ 11.​ Limited Legal Rights:

There is no universal right to legal representation or cross-examination in administrative

hearings, reducing fairness.

Solution:
To build public trust in administrative justice, there must be a standardized
code of procedure for administrative bodies. Until then, judicial review should
be expanded using the test of reasonableness in both facts and law.

Rules of Natural Justice in Administrative Adjudication

​ 1.​ Notice of Proceedings:

Anyone affected by a decision must be informed in advance about the case against them.

​ 2.​ Right to be Heard:

Every individual must be given a fair chance to present their case.

​ 3.​ Impartial Decision-Maker:

The authority deciding the case must be unbiased and not connected to the matter in any way.

​ 4.​ Good Faith and Reasonableness:

The decision must be taken in good faith and based on logical and fair reasoning, not arbitrarily.

Reasons for the Growth of Administrative Adjudication

​ •​ Protecting Citizens’ Rights:

It serves as a check on state power and helps protect individual rights more efficiently.

​ •​ Preventive Measures:

Administrative bodies are better at preventing harm than punishing after damage is done.

​ •​ Effective Enforcement:
These bodies can take immediate actions like suspending licenses, canceling permits, or
destroying harmful goods—unlike regular courts.

​ •​ Overburdened Judiciary:

Courts in India are slow, overworked, and expensive. Administrative tribunals, like industrial and
labor courts, help ease the load and deliver faster decisions.

​ •​ Outdated Legislative Process:

The traditional legislative process is slow and inflexible. Delegating powers to administrative
bodies helps implement laws more efficiently and effectively.

Control Mechanisms of Administrative Adjudication

Administrative Adjudication needs proper checks to prevent misuse of power and ensure
fairness. These controls are of four major types:

1. Legislative Control 🏛️
​ •​ Delegation with Limits: Legislature defines the scope of power to prevent
excessive delegation.

​ •​ Laying Before Parliament: Rules and decisions may be required to be presented

to Parliament.

​ •​ Parliamentary Committees: Committees (like Subordinate Legislation Committee)

monitor delegated powers.

​ •​ Question Hour & Reports: Agencies must answer questions or submit reports to
the legislature.

2. Executive Control ⚖️
​ •​ Departmental Supervision: Senior officers oversee the functioning of adjudicating
authorities.

​ •​ Instructions & Guidelines: Executive may issue directions to ensure consistency.

​ •​ Discipline & Appointments: Adjudicating officers are appointed, reviewed, or

removed by the executive.
3. Judicial Control ⚖️
​ •​ Judicial Review: Courts check if administrative decisions are:

​ •​ Ultra vires (beyond legal power)

​ •​ Unfair or biased

​ •​ Violating natural justice

​ •​ Writs (Art. 32 & 226): Courts can issue writs like:

​ •​ Certiorari – to quash illegal orders

​ •​ Prohibition – to stop wrongful jurisdiction

​ •​ Mandamus – to compel performance of duty

​ •​ Appeal & Revision: Some laws allow court appeals against administrative
decisions.

4. Procedural Safeguards 🛡️
​ •​ Natural Justice:

​ •​ Right to be heard (Audi alteram partem)

​ •​ No bias (Nemo judex in causa sua)

​ •​ Reasoned Orders: Decisions must be reasoned and not arbitrary.

​ •​ Legal Representation: In many cases, parties can engage lawyers and

cross-examine witnesses.

Conclusion ✅
Administrative Adjudication ensures quick and expert justice, but to avoid arbitrariness, bias,
and misuse, a balance of control through legislature, executive, judiciary, and fair procedures is
essential.

Meaning of Administrative Action ⚙️

Administrative action refers to acts that are neither legislative nor judicial in nature. These
actions deal with specific situations rather than applying general principles. They are often
based on policy decisions and expediency, relying more on subjective satisfaction than detailed
procedures like evidence collection or legal argument.

Although administrative action may affect individual rights, it does not typically decide questions
of right or wrong like a court would. It is expected to follow at least basic principles of natural
justice, unless the law explicitly says otherwise—especially when rights are at stake.

Administrative actions can be of two types:

​ •​ Statutory: Backed by law or the Constitution, hence legally binding.

​ •​ Non-statutory: Not legally binding, such as internal instructions to subordinates,

but non-compliance may still attract disciplinary action.

Even though administrative actions are often discretionary, the authorities must still act fairly,
impartially, and reasonably.

Classification of Administrative Action 🏛️

Administrative action spans the three organs of government:

​ •​ Legislative

​ •​ Executive

​ •​ Judiciary

But functionally, it is further classified into three types, as recognized in Jayantilal Amritlal
Shodhan v. F.N. Rana & Ors:

1. Quasi-Legislative Action (Rule-Making) 📜

​ •​ Involves formulating rules and delegated legislation.

​ •​ Used when the legislature delegates rule-making powers to the administration to

deal with complex or specific issues.

2. Quasi-Judicial Action (Rule-Deciding) ⚖️

​ •​ Refers to situations where administrative bodies make decisions that affect legal
rights of individuals.
​ •​ The authority must act judicially, applying principles of natural justice.

3. Purely Administrative Action (Rule-Applying) 🗂️

​ •​ Actions that are neither legislative nor judicial, such as granting licenses or
promotions.

​ •​ These are regular executive functions, generally based on policy and

administrative discretion.

Constitutional Backing of Natural Justice

The principles of natural justice are embedded in Article 14 (Right to Equality) and Article 21
(Right to Life and Personal Liberty) of the Indian Constitution.

A key principle includes:

​ •​ Nemo judex in causa sua – No one should be a judge in their own cause (Rule
against bias).