Final Dissertation LLM Final

FACULTY OF LAW,
JAI NARAIN VYAS UNIVERSITY, JODHPUR
DISSERTATION
DELEGATED LEGISLATION & ITS JUDICIAL

CONTROL : AN ANALYTICAL STUDY
_______________________________________________
DOCTRINAL RESEARCH SUBMITTED IN
LIEU OF PAPER VII DISSERTATION FOR
LL.M. FINAL YEAR SESSION 2016-17
____________________________________________________________________________
UNDER SUPERVISION SUBMITTED BY

Prof. V.K. Bagoria Shubham Modi
Assistant Professor LL.M. Final Year
Faculty of Law, JNVU Administrative law
Roll No- 3
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CERTIFICATE
This is to Certify that the dissertation entitled Delegated
Legislation & Its Judicial Control : An Analytical
Study has been prepared by Shubham Modi under my
guidance and supervision.
I recommend that above dissertation

which is being submitted by Shubham Modi be accepted
in fulfilment of the required one paper. He has submitted
this dissertation in lieu of paper VII for LL.M. Final under
Group K i.e. Administrative law of Jai Narain Vyas
University, Jodhpur for the session 2016-2017
Place Jodhpur Prof. V.K. Bagoria

Date - Assistant Professor
Faculty of Law
J.N.V.U. Jodhpur
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DECLARATION
I hereby declare that this dissertation entitled

Delegated Legislation & Its Judicial Control : An
Analytical Study was carried out by me in lieu of
Paper VII dissertation for LL.M. Final year, session
2016-17 under the guidance and supervision of
Prof. V.k. Bagoria at faculty of law J.N.V.U. Jodhpur,
Rajasthan, India.
The interpretations put forth are based on my

reading and understanding of the original texts and
they are not published anywhere in the form of
books, monographs or articles. The other books,
articles and websites, which i have made use of are
acknowledged at the respective place in the text.
For the present dissertation, which I am

submitting to the university, no degree, diploma or
distinction has been conferred on me before, either
in this or in other university.
Place: Jodhpur (Shubham Modi)

Date: 30/04/2017 Student
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ACKNOWLEDGMENT
As one lamp lights another, so does knowledge kindles form
one person to another Prof. V.K. Bagoria, an Assistant Professor
of Faculty of Law. Jai Narain Vyas University, Jodhpur has
tremendous potentials and his reservoir of knowledge is ever
ready to light the lamps of knowledge of his student.
I find no words of potency for expression my gratitude to

him. It was he who suggested me to present study. I am full of
gratitude towards him. I am extremely grateful for his able
guidance valuable suggestions, readiness to help, giving proper
shape to this dissertation and parental behaviour which
contributed immensely in completion of this work.
Further, I put on record my gratitude to Dr. Chandan Bala,

Dean and Head of Law Faculty Jai Narain Vyas University,
Jodhpur for permitting me to work on this topic and availing all
facilities required in this regard.
I express my gratitude to respected teachers of Law Faculty,

and particularly to Professor Dr. V.K. Sharma, Associate Professor
Dr. Sunil Asopa, Assistant Professor Dr. S.P. Meena, Dr. Nidhi
Sandal, Dr. Dalpat Singh, Mr. P.K. Musha, Mr. Kuchata Ram, Mr.
V.K. Meena for their academic patronage and persistent
encouragement extended to me. Thanks are also due to the
library staff of Law Faculty, and Office staff of Law Faculty, Jai
Narain Vyas University, Jodhpur.
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INDEX
S.NO. PARTICULARS PAGE

NO.
1. List of cases 7-12
2. Abbreviation 13
3. CHAPTER -1 14 - 29
Meaning, Nature, Scope And Development Of Delegated
Legislation
I. Introduction 14
II. Definitions 17
III. Scope of delegated legislation 19
IV. Types of delegation of legislative power in india 21
V. Essential characteristics of delegated legislation 23
VI. The need for delegated legislation 24
VII. Advantages of delegated legislation 25
VIII. Delegated legislation as distinguished from administrative
power 25
IX. Sub-delegation 26
X. Merits of delegated legislation 27
XI. Demerits of delegated legislation 28
4. CHAPTER - 2 30 - 33
Causes of Growth of Delegated Legislation
I. Pressure upon Parliamentary time 30
II. Technicality 30
III. Flexibility 31
IV. Experimentation 31
V. Emergency 31
VI. Confidential matters 32
VII. Complexity of modern administration 32
VIII. Confidential matters 32
IX. Complexity of modern administration 32
5. CHAPTER - 3 34 41
TYPES OF DELEGATED LEGISLATION
I.Rule 34
II.Regulation 34
III.Bye-Law 36
IV. Order 36
V.Notification 37
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VI.Scheme 37
VII.Proclamation 37
VIII.Resolution 38
6. CHAPTER 4 42 49
CONDITIONAL LEGISLATION
I. Privy Council and conditional legislation 42
II. Federal Court and Conditional Legislation 43
I I I . Supreme Court and Conditional Legislation 43
IV. Liberalisation of the concept of conditional legislation. 44
V. American Supreme Court and Contingent Legislation. 45
VI. Conditional Legislation and Delegated Legislation 45
Distinction
VII. Subordinate Legislation 46
VIII. General observations 47
7. CHAPTER 5 50 59
SUB- DELEGATION
I.Object 50
II.Express Power 51
III.Implied Power 52
IV.Concurrent Jurisdiction 52
V.Three Sub-Heads 53
VI.Control Of Sub-Delegated 57
VII.Criticism 58
8. CHAPTER - 6 59 83
Restraints On Delegation of Legislative Power
I.Excessive Delegation : Permissible Limits 59
II.Classification of Delegated Legislation 66
III.Impermissible Delegation 67
a) Amplification of policy 67
b) Modification 71
c) Removal of difficulties 73
d) Inclusion and Exclusion 77
e) Taxation 79
9. CHAPTER 7 84-101
COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA AND INDIA
I.ENGLAND 84
II.U.S.A. 86
III.INDIA 94
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10. 1 CHAPTER 8 102-143
Judicial Control over Delegated Legislation
I.Doctrine of ultra vires 104
II.Circumstances 105
I. Delegated legislation in conflict with the parent act 105
II.
Delegated legislation in excess of the power conferred by the parent act 107
III.
Where delegated legislation is ultra vires the parent act 109
IV.
Where delegated legislation is ultra vires the constitution 111
V. Where parent act is ultra vires the constitution 115
VI.
Delegated Legislation in conflict with the procedure of the parent act 117
VII. Malafide : bad faith 118
VIII. Unreasonableness 119
IX. Pragmatism 124
III.Judicial review 126
IV.Procedural irregularities 131
V.Saving clauses 141
VI.Statutory rules, if binding 143
11. CHAPTER -9 144 - 147
Conclusion
12. Bibliography 148
13. Website
1 Research 149
14. NON-DOCTRINAL RESEARCH

DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN 150-175
ANALYTICAL STUDY
a) Views of Senior Advocate and Advocates at Rajasthan High 151

Court with regard to delegated legislation and judicial
control.
b) Judicial function can be delegated to Administration 162
c) Henry clause applies in autonomous University 163
d) Administrative function of country 166
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LIST OF INDIAN CASES
1. A.K. Roy V. Union Of India

2. A.V. Nachane V. Union Of India
3. Adarsh Industrial Corporation V. Marketing Committee
4. Afzal Ullah V. State Of U.P.
5. Agricultural Market Committee V. Shalimar Chemicals Works,
6. Air India V. Nargesh Meerza
7. Ajaib Singh V. Gurbachan Singh
8. Ajay Hasia V. Khalid Mujib
9. Ajoy Kumar Banerjee V. Union Of India
10. Also Brij Sunder V. First Additional District Judge,
11. Arvinder Singh V. State Of Punjab
12. Asstt. Collector Of Central Excise V. Ramakrishna
13. Babu Ramv. State Of Punjab
14. Balakotiah V. Union Oflndia
15. Bamoari Lai V. State Of Bihar
16. Banarasi Das V. State Of M.P
17. Bangalore W.C. Mills V. Bangalore Corporation
18. Banwarilal Agarwalla Vs The State Of Bihar
19. Bar Council Of India V. Surjeet Singh
20. Barium Chemicals Ltd. V. Company Law Board
21. Basant Kumar V. Eagle Rolling Mills
22. Beni Prasad V. Jabalpur Improvement Trust
23. Bennett Coleman Co. Ltd. V. Union Of India
24. Berar Swedeshi Vanaspati V. Municipal Committee, Skcgaon
25. Bhatnagar & Co. V. Union Of India
26. Bombay Municipal Crpn. V. Thondu
27. Brajendra Kumar V. Union Of India
28. Central Inland Water Transport Corporation V. Brojo Nath Ganguly
29. Central Talkies Ltd. V. Dwarka Prasad
30. Chandra Bali V. R
31. Chief Commissioner V. R.S.Dani
32. Chintaman Rao V. State Of Madhya Pradesh
33. Corporation Of Calcutta V. Liberty Cinema
34. Council Of Legal Aid And Advice V. Bar Council Of India
35. D.S. Mills V. Union Of India
36. D.T.U. V. Hajelay
37. Darshan Lai Mehra V. Union Of India
38. Daya V. Joint Chief Controller Of Imports And Exports
39. Delhi Municipal Corporation V. Birla Cotton Spinning & Wvg. Mills
40. Devi Das Copal Krishan V. State Of Punjab
41. District Collectoi Chittor V. Chittor District Ground Nut Traders
Association
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42. Diwan Sugar Mills V. Union Of India
43. Dwarka Nath V. Municipal Corporation,
44. Dwarka Parsad Laxminarain V. State Of U.P.
45. Edward Mills Co. V. State Of Ajmer
46. Edward Mills V. Stale Of Punjab,
47. Emperor V. Banwari Lal
48. Gammon India Ltd. V. Union Of India
49. Ganapati Singh V. State Of Ajmer
50. General Officer Commanding-In-Chief V. Subhash Chandra Yadav
51. Godavari V. State Of Maharashtra
52. Gullapalli Nageswara Rao V. A.P.S.R.T.C.
53. Gwalior Rayon
54. Gwalior Rayon Silk Mfg. Co. V. Asstt. Commissioner
55. Hamam Singh V. Regional Trt Authority
56. Hamaraov. Union Territory Of Pondicherry
57. Hamdard Dawakhana V. Union Of India
58. Haniraj L. Chulani (Dr.) V. Bar Council Of Maharashtra And Goa.
59. Harakchand v. Unionof India
60. Hari Shankar Bagla V. State Of Madhya Pradesh
61. Harishankar Bagla V. State Of M.P.
62. Himmat V. Commissioner Of Police
63. I.T.W. Signode India Ltd. V. C.C.E.,
64. Ibrahim V. Regional Transport Authority
65. Inder Singh V. State Of Rajasthan
66. Indian Express Newspapers (Bombay) Ltd. V. Union Of India
67. Indravadan V. State Of Gujarat
68. Ishwar Singh V. State Of Rajasthan
69. Izhar Ahmad V. Union Of India
70. J. R. G. Manufacturing Association V. Union Of India,
71. J.A. Shodan V. FN Rana,
72. Jalan Trading Co. V. Mill Mazdoor Sabha
73. Jatindra Nath Gupta V. Province Of Bihar
74. K. Panduranga V. State Of Andhra Pradesh
75. K.J. Thomas V. Commissioner Of Income-Tax
76. Kerala State Electricity Board V. Indian Aluminium
77. Kerala State Electricity Board V. Indian Aluminum Company
78. Kunj Behari Lai Butel V. State Of H.P.
79. Labh Chandra V. State Of Bihar
80. Lachmi Narain V. Union Of India
81. Latafat AH Khan V. State Of Uttar Pradesh
82. M.G. Pandke V. Municipal Council,-Hinganghat,
83. Maharashtra Board Of S. H. S. E. V. Paritosh
84. Mahe Beach Trading Company V. Union Territory Of Pondicherry
85. Major Radha Krishan V. Union Of India And Others
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86. Makhan Singh V. State Of Punjab
87. Manepalli Venkatanarayanav. State Of A.P
88. Marathawad University V. Sheshrao
89. Meenakshi V. University Of Delhi
90. Mittal V. Union Of India
91. Mohamed Ali V. Union Of India
92. Mohammad Faruk V State Of Madhya Pradesh
93. Mohammad Hussain V. State Of A.P.,
94. Mohd. Yasin V. Town Area Committee
95. Mohini Jain V. State Of Karnataka
96. Mulchand Gulabchandv. Mukumd S Hivram,
97. Mulchand V. Mukand,
98. Munrta Lai V. H.R. Scott
99. Munsha Singh Dhaman Singh V. State Of Punjab
100. N.K. Papiah V. Excise Commissioner
101. Nagraj V. State Of A. P
102. Narain Iyer V. Union Of India
103. Naraindas V. State Of M.P.
104. Narendra Kumar V. Union Of Lndia
105. Om Prakash V. State Of U.P.,
106. Orient Weaving Mills V. Union Of India
107. P.V. Sivarajan V. Union Of India
108. Parasuraman V. State Of Tamil Nadu
109. Parvet Qadir V. Union Of India,
110. Prag Ice And Oil Mills V. Union Of India.
111. Pramod K. Pankaj V. State Of Bihar
112. Quarry Owners Association V. State Of Bihar
113. Radha Krishna V. State
114. Radhakrishan V. State
115. Rai Narain Singh V. Chairman, Patna Administration Committee
116. Raja Buland Sugar Co. V. Rampur Municipality
117. Ram Chandra Kachardas Porwal V. State Of Maharashtra
118. Ram Prasad V. State
119. Ramesh Birch V. Union Of India,
120. Ravulu Subba Rao V. Commissioner Of Income-Tax,
121. Raza Buland Sugar Co. V. Rampur Municipality
122. Re Delhi Laws Act Case,
123. Reghubar Dayal V. Union Of India
124. Registrar Co-Op. Societies V, Kunjabmu
125. Romesh Mehta V. Sanwal Chand Singhvi,
126. S. Avtar Singh V. State Of Jammu And Kashmir
127. S. B. Yadava V. State Of Haryana
128. 'S. Samuel M.D. Harrison Malayalam V. Union Of India
129. Sahni Silk Mills Ltd. V. ESI Corpn.
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130. Sales Tax Officer V. Abraham
131. Shahabuddin Khan V. State Of U.P.
132. Shama Rao V. Union Territory Of Pondicherry
133. Sinai V. Union Of India
134. Sita Ram Bishambhar Dayal V. State Of Uttar Pradesh
135. Sitapur Municipality V. Prayag Narain
136. Sivarajan V. Union Of Lndia
137. Sri Ram V. State Of Bombay
138. St. Johns Teachers Training Institute V. Regional Director, National
Council For Teacher Education
139. State Of A.P. V. Mcdowell And Co
140. State Of Karnataka V. Ganesh Kamathr
141. State Of Maharashtra V. Chandr. Bhan
142. State Of Maharashtra V. Raj Kumar
143. State Of Nagaland V. Ratan Singh
144. State Of Punjab V. Devana Modern Breweries Ltd.
145. State Of T.N. V. Hind Stone
146. State Of T.N. V. K. Sabanayagam
147. Stateof Kerala V. K.G. Abdin
148. Sukhdev Singh V. Bhagat Ram
149. Supreme Court Employees Welfare Association V. Union Of India
150. Swadeshi Cotton Mius Ltd. V. State Industrial Tribunal,
151. T.B. Ibrahim V. Regional Transport Authority
152. T.B. Ibrahim V. Regional Transport Authority
153. Tahir Hussain V. District Board Muzaffarnagar
154. Tata Iron And Steel Co. Ltdy. Their Workmen,
155. Trust Mai Lachmi Sialkot Biradri V. Amritsar Improvement Trust
156. Tulsipur Sugar Company V. Notified Area Committee, Tulsipur
157. Union Of India V. Cynamide India Ltd.
158. V. Nagappa V. Iron Ore Mines Cess Commissioner
159. V. Sundeerv. Bar Council Of India
160. Vasanlal Maganbhai V. State Of Bombay
161. Vasin V. Town Area Committee
162. Venkateswara V. Government Of A.P.
163. West Bengal State Electricity Board V. Desh Bandhu Ghosh,'
164. Western India Theatres Ltd. V. Municipal Corporation
LIST OF FOREIGN CASES

165. Kruse v. Johnson
166. F.C.C. v. American Broad Casting Co.
167. Manhattan Gen. Equipment Company v. Commissioner
168. Barnard v. National Dock Labour Board
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169. Blackpool Corpn. V. Locker
170. Cobb v. Kropp
171. Fahey v. Mallonee
172. Federal Energy Amin. v. Algonquin,,
173. Field v. Clark
174. hitcher v. United States
175. Industrial Deptt. v. American Petroleum Institute
176. Institute of Patent Agent v. Lockwoods,
177. Jackson v. Butterworth,
178. Jackson v. Butterworth,
179. Kruse v. Johnson
180. Local Govt. Board v. Arlidge,
181. Me Eldowney v. Forde,
182. Mistretta v. United States
183. Morgan v. U.S.
184. Morgan v. U.S.
185. Murray v. Hoboken,
186. National Broadcasting Co. v. U.S
187. Puckley v. Valeo,
188. Queen v. Burah
189. R. v. Comptroller-General of Patents
190. R. Vs. Burah (1878) 3 AC 889.
191. Runkle v. U.S.,
192. Schechter Poultry Corporation v. United States
193. Springer v. Philiphine Islands
194. States v. Baren,
195. White v. Morley
196. Whiteman v. American Trucking Assn.
197. Yakus v. U.S.
198. Youngs Town Sheet and Tube Co. v: Sawyer
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LIST OF ABBREVIATIONS
AC -Appeal Case
ACJ American Communication Journal
AIR - All India Reporter
All - ALLAHABAD
ALL ER- All England Law Reports
Art- Article
AP- ANDHRA PRADESH
Bom - BOMBAY
Cal - CALCUTTA
Ch- Chapter
Co.-Company
Del - DELHI
Edn-Edition
HL-House of Lords
K.B. - KINGS BENCH
M.P.-Madhya Pradesh
Maha- Maharashtra
p. - PAGE
Para- paragraph
Pat - PATNA
PC - PRIVY COUNCIL
QB Queens Bench
SC-Supreme Court
Pun -PUNJAB AND HARYANA
SCC-Supreme Court Cases
SCR- Supreme Court
U.P. - UTTAR PRADESH
W.L.C. - WESTERN LAW CASES
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CHAPTER -1
MEANING, NATURE, SCOPE AND DEVELOPMENT OF
DELEGATED LEGISLATION
1. INTRODUCTION -
The issue of delegated legislation has been one of the most debated
issues in the domain of legal theory because of its various implications.
Scholars have consistently presented differing and even contradicting
views about delegation of power to legislate and have thus taken different
stands on the issue. While Delegated Legislation has been a widespread
practice in modern times and is almost an accepted norm, there have
been contrary views. For instance Cooley has expressed a staunchly
critical view of the power to delegate. He has stated that "One of the
settled maxims in constitutional law is that the power conferred upon the
legislature to make laws cannot be delegated by that department to any
other body or authority.
Where the sovereign power of the State has located the authority,
there it must remain; and by the constitutional agency alone the laws
must be made until the constitution itself is changed. The power to
whose judgment, wisdom, and patriotism this high prerogative has been
entrusted cannot relieve itself of the responsibility by choosing other
agencies upon which the power shall be devolved, nor can it substitute
the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust."
Further he has also observed that "No legislative body can delegate to
another department of the government, or to any other authority, the
power, either generally or specially, to enact laws. The reason is found in
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the very existence of its own powers. This high prerogative has been
entrusted to its own wisdom, judgment, and patriotism, and not to those
of other persons, and it will act ultra vires if it undertakes to delegate the
trust, instead of executing it." While such positions do raise the
questions about the propriety of delegating the power to legislate by
higher legislative bodies to the lower ones, the fact remains that this has
been a general practice followed in all modern democratic countries.
Hence it is important to understand what is firstly meant by delegated
legislation and then analyse its various aspects.
Legislative power of the Administration & Delegated Legislation means

the power given to the administrative authority by the Legislature to make
rules, regulations, like provisions on certain matters. It may be defined as
the law-making power of the Executive or administrative authority. It is
briefly known as "delegated legislation". It has also been described as
"outsourcing of law-making power".
Subordinate Legislation
"Delegated legislation" is also called "Subordinate Legislation". Distinguishing
between "Supreme Legislation" and "Subordinate Legislation",
Salmond1 explains :
Subordinate legislation is the legislation made by the authority other than the
supreme authority in the State, in the exercise of the power delegated to it, by
the supreme authority.
The subordinate legislation, says Salmond, "is dependent on some

superior or supreme authority for its continued existence and validity."
It thus follows that the authority which makes the legislation

(subordinate legislation) in the exercise of the legislative power delegated to it
by the Legislature, is subordinate to the Legislature and the power of the
1 Jurisprudence, 12th edn., 116.

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authority is limited by the Statute by which the delegation has been made.2
Thus, the rules, by-laws, regulations, notifications, orders, etc., made by the
Executive or other administrative authorities, in the exercise of the powers
conferred by the Legislature is known as subordinate legislation.
Sir Cecil Carr defines 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 managers the main business. The
delegated legislation is so multitudinous that the statute book would not
only be incomplete but misleading unless it be read along with the
delegated legislation which implies and amends it.
Delegated LegislationExecutive Legislation
Delegated legislation may be distinguished from Executive Legislation.

The former refers to the legislation made by the authorities other than the
Legislature to whom the Legislature delegates its legislative power, while the
latter stands for the legislative power conferred on the Executive by the
Constitution itself.
It thus follows that the legislation made by the Executive in the

exercise of power confers on it expressly by the Constitution, is not delegated
legislation, but strictly speaking, it is original legislation.
For instance, Ordinances promulgated by the President under Article

123 or by the Governor under Article 213 are expressly declared to have the
same force and effect as a law enacted by the respective Legislature.3
It may further be stated that while the source of delegated legislation is

always an Act of the Legislature, the source of the Executive Legislation is a
provision of the Constitution. Further, that delegated legislation to be
constitutionally valid is to comply with the guidelines traced through judicial
pronouncements interpreting general principles in this respect while a piece
of Executive Legislation is required to be consistent with the provisions of the
constitution.
2 Supra ,Jain & Jain

3 See Clause (2) of Article 123 and CI. (2) of Article 213.
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I. DEFINITIONS
I. Delegated Legislation means the exercise of legislative power by an agency

which is subordinate to the legislature
II. Delegated legislation is, at times, referred to as Ancillary, Subordinate,
Administrative Legislation or as Quasi-Legislation.
III. Delegated legislation is a technique to relieve pressure on legislatures time so
that it can concentrate on principles and formulation of policies.
Delegated legislation means legislation by authorities other than the

Legislature, the former acting on express delegated authority and power from
the later. Delegation is considered to be a sound basis for administrative
efficiency and it does not by itself amount to abdication of power if restored
to within proper limits. The delegation should not, in any case, be unguided
and uncontrolled. Parliament and State Legislatures cannot abdicate the
legislative power in its essential aspects which is to be exercised by them. It
is only a nonessential legislative function that can be delegated and the moot
point always lies in the line of demarcation between the essential and
nonessential legislative functions. The essential legislative functions consist
in making a law. It is to the legislature to formulate the legislative policy and
delegate the formulation of details in implementing that policy. Discretion as
to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make
notifications and alterations in an Act while extending it and to effect
amendments or repeals in the existing laws is subject to the condition
precedent that essential legislative functions cannot be delegated authority
cannot be precisely defined and each case has to be considered in its setting.
Halsbury's Law of England, 4 explains that when an instrument of a
legislative nature is made by authority other than the Legislature, it is called
delegated legislation. To put in simple terms delegated legislation refers to all
law-making, which takes place outside the Legislature. It is generally
expressed as rules, regulations, orders, by-laws, directions, scheme,
notifications, etc.
4 4th Edn., 44, 981-84

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Salmond puts delegated legislation5 as
That, which proceeds from any authority other than sovereign power and is
therefore, dependent for its continued existence and validity on some superior
or supreme authority.
The word 'delegate' is distinguished from the term 'delegation'. While

delegate' is stated to mean a person who is appointed, authorized, delegated
or commissioned to act in the stead of another, the term "delegation" means
instructing another with a general power to act for the good of those who
depute him or it means transfer of authority by one person to another. 6 In
this sense, delegated legislation means he conferring authority of law-making
upon someone else,7 i.e., on administrative authorities.
Jain and Jain explained the expression in the following two senses8 :
The exercise by a subordinate agency of the legislative power, delegated to it

by the Legislature;
The subsidiary rules themselves, which are made by the subordinate agency,
in pursuance of the power as mentioned in (a).
The expression is meant to have both the meanings. It may be stated

to be "legislation by the authorities other than the Legislature", which takes
place outside the Legislature and is generally expressed as rule, regulation,
order by-law, direction, scheme, etc.9
The Supreme Court in Hamdard Dawakhana v. Union of India10

explains :
"When the delegate is given power of making rules and regulations in

order to fill in the details to carry out and subserve the purposes of the
5 Salmond, Jurisprudence, 12th Edn., 116, quoted in Agricultural Marketing

Committee v.Slialimar Chemicals Works, AIR 1997 SC 2502.
6 Black's Law Dictionary, 6th Edn., quoted in Ishwar Singh v. State of Rajasthan, AIR 2005
SC 773.
7 For detailed discussion, see Ishivar Singh v. State of Rajasthan, AIR 2005 SC 773.
8 Principles of Administrative Law, 2008, 42.However when the delegate has exercised the
power delegated, there Agricultural Market Committee v. Shalimar Chemicals Works, AIR
1997 SC 2502.
9 Agricultural Market Committee v. Shalimar Chemicals Works, AIR 1997 SC 2502.
10 AIR 1960 SC 554, quoted in State of T.N. v. K. Sabanayagam, AIR 1998 SC 344.
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legislation, the manner in which the requirements of the Statute are to be
met and the rights therein created to be enjoyed, it is an exercise of
delegated legislation.
The Donoughmore Committee on Ministers' Powers, appointed in England

in 1929, to consider, inter alia, the powers exercised by die Ministers by way
of "delegated legislation"11 also explained the expression in the following two
senses
1. The exercise of law-making power by the executive under the authority

delegated to it by the Parliament; and
2. The rules, regulations, by-laws, etc., made by the executive in the exercise of
the law making power delegated to it by Parliament.
Stating in the above way, Jain & Jain say that as administrative lawyers, "we
are more interested in the 'technique', rather than the actual rules made,
and so the expression 'delegated legislation' is used here primarily in the first
sense", i.e., the exercise of legislative power by a subordinate agency.12
II. SCOPE OF DELEGATED LEGISLATION

In order to avoid the dangers, the scope of delegation is strictly
circumscribed by the Legislature by providing for adequate safeguards,
controls and appeals against the executive orders and decisions. The power
delegated to the Executive to modify any provisions of an Act by an order
must be within the framework of the Act giving such power. The power to
make such a modification no doubt, implies certain amount of discretion but
it is a power to be exercised in aid of the legislative policy of the Act and
cannot
i) travel beyond it, or

ii) run counter to it, or
iii) Certainly change the essential features, the identity, structure or the
policy of the Act.
11 See P.P. Craig, Administrative Law, 2007, 67.

12 Jain and Jain supra note 5, 42.
Page | 19
Under the constitution of India, articles 245 and 246 provide that the
legislative powers shall be discharged by the Parliament and State
legislature. The delegation of legislative power was conceived to be inevitable
and therefore it was not prohibited in the constitution.
Further, Articles 13(3)(a) of the Constitution of India lays down that law
includes any ordinances, order bylaw, rule regulation, notification, etc.
Which if found in violation of fundamental rights would be void. Besides,
there are number of judicial pronouncements by the courts where they have
justified delegated legislation.
For e.g. In re Delhi Laws Act case13, Vasantlal Magan Bhaiv vs State of
Bombay14 and S. Avtar Singh v. State of Jammu and Kashmir15.
While commenting on indispensability of delegated legislation Justice

Krishna Iyer has rightly observed in the case of Arvinder Singh v. State of
Punjab16, that the complexities of modern administration are so bafflingly
intricate and bristle with details, urgencies, difficulties and need for
flexibility that our massive legislature may not get off to a start if they must
directly and comprehensively handle legislative business in their plenitude,
proliferation and particularization Delegation of some part of legislative
power becomes a compulsive necessity for viability.
A provision in a statute which gives an express power to the
Executive to amend or repeal any existing law is described in England as
Henry viii Clause because the King came to exercise power to repeal
Parliamentary laws. The said clause has fallen into disuse in England, but in
India some traces of it are found here and there.
Example, Article 372 of the Constitution authorizes the president of India to

adopt pro Constitutional laws, and if necessary, to make such adaptations
13 AIR 1961 Supreme Court 332

14 AIR 1961 SC 4
15 AIR 1977 J&K 4
16 AIR 1979 SC 321
Page | 20
and modifications, (whether by way of repeal or amendment) so as to bring
them in accord with the provisions of the Constitution. The State
Reorganization Act, 1956 and some other Acts similar thereto also contain
such a provision. So long as the modification of a provision of statute by the
Executive is innocuous and immaterial and does not affect any essential
change in the matter.
III. TYPES OF DELEGATION OF LEGISLATIVE POWER IN INDIA

There are various types of delegation of legislative power.
1. Skeleton delegation In this type of delegation of legislative power, the

enabling statutes set out broad principles and empowers the executive
authority to make rules for carrying out the purposes of the Act. A typical
example of this kind is the Mines and Minerals (Regulation and
Development) Act, 1948.
2. Machinery type This is the most common type of delegation of legislative

power, in which the Act is supplemented by machinery provisions, that is,
the power is conferred on the concerned department of the Government to
prescribe
i) The kind of forms

ii) The method of publication
iii) The manner of making returns, and
iv) Such other administrative details
In the case of this normal type of delegated legislation, the limits of the
delegated power are clearly defined in the enabling statute and they do not
include such exceptional powers as the power to legislate on matters of
principle or to impose taxation or to amend an act of legislature. The
exceptional type covers cases where
i) the powers mentioned above are given , or
Page | 21
ii) the power given is so vast that its limits are almost impossible of definition,
or
iii) while limits are imposed, the control of the courts is ousted.
Such type of delegation is commonly known as the Henry VIII Clause. An

outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912
by which the Provincial Government was authorized to extend, with
restrictions and modifications as it thought fit any enactment in force in any
part of India to the Province of Delhi. This is the most extreme type of
delegation, which was impugned in the Supreme Court in the Delhi Laws Act
case17. It was held that the delegation of this type was invalid if the
administrative authorities materially interfered with the policy of the Act, by
the powers of amendment or restriction but the delegation was valid if it did
not effect any essential change in the body or the policy of the Act. That
takes us to a term "bye-law" whether it can be declared ultra vires? if so
when?
Generally under local laws and regulations the term bye-law is used such as
i) public bodies of municipal kind

ii) public bodies concerned with government, or
iii) corporations, or
iv) societies formed for commercial or other purposes.
The bodies are empowered under the Act to frame bye-laws and regulations
for carrying on their administration. There are five main grounds on which
any bye-law may be struck down as ultra vires. They are :
a) That is not made and published in the manner specified by the Act, which
authorises the making thereof;
b) That is repugnant of the laws of the land;
c) That is repugnant to the Act under which it is framed;
17 . A.I.R. 1951 S.C.332

Page | 22
d) That it is uncertain ; and
e) That it is unreasonable.
IV. Essential characteristics of Delegated Legislation:

1. The rules should contain short titles, explanatory notes, reference to earlier
amendments, etc. for clear understanding.
2. No extra-ordinary delay shall occur in making the subordinate legislation.
3. The administrative authority should not travel beyond the powers given in
Parent Act.
4. Essential legislative functions cannot be delegated.
5. Sub-delegation (Delegatus non protest delegare) is not encouraged.
6. General rules should not be framed with retrospective operation, unless and
until the parent Act instructs to do so.
7. Discriminatory and arbitrary rules should not be framed.
8. Wide and sufficient publicity shall be given so that general public can know
it.
9. In appropriate cases, consultation also shall be made for more effectiveness
and efficiency.
10. The Sub-ordinate authorities should not use rigid, crux and technical
language while preparing the rules, which may cause difficulty to
understand by general public.
11. The final authority of interpretation of the subordinate rules is vested to
Parliament and Courts. But the administrative authorities are not
empowered and authorised to interpret the statutes.
12. A tax or financial levy should not be imposed by rules.
13. Wherever it is necessary, the explanatory notes shall be given.
Page | 23
14. Public interest must be kept in view while delegating the powers, etc.
IV. THE NEED FOR DELEGATED LEGISLATION

Delegated legislation is necessary for a number of reasons: parliament
does not have time to contemplate and debate every small detail of complex
regulations, as it only has a limited amount of time to pass legislation,
delegating legislation will allow however thoroughly debated regulations to
pass through as well as saving parliamentary time.
Delegating legislation allows law to be made more quickly than

parliament, which is vital for times of emergency. Parliament takes longer as
it does not sit all the time and its procedures is generally quite slow and
complex due to the several stages each bill has to pass through. Delegated
legislation can also be amended or revoked relatively easily, so that the law
can be kept up to date and so that the law can meet future needs that arise
such as areas concerning welfare benefits, illustrating a great deal of
flexibility in the system . Otherwise statutes can only be amended or revoked
by another complicated and time-consuming statute.
MPs do not usually have the technical knowledge/expertise required in

for example drawing up laws on controlling technology, ensuring
environmental safety, and dealing with different industrial problems or
operating complex taxation schemes whereas delegated legislation can use
experts who are familiar with the relevant areas.
Another need of delegated legislation is that parliament may not always be

the best institution to recognise and deal with the needs of local people. As a
result local people elect councillors from certain districts and it is their
responsibility to pass legislation in the form of by-laws to satisfy local needs.
V. ADVANTAGES OF DELEGATED LEGISLATION

Saves limited time in Parliament;
Allow rapid change;
MP's lack detailed or technical knowledge. E.g. Specific details in Abortion
Act, Road Traffic detail
Page | 24
Quick response to new developments, e.g. Foot and Mouth outbreaks. The
Prevention of Terrorism (Temporary Provisions) Act allows the quick addition
of new prohibited groups.
Enables minor changes to statutes, e.g. Variations in sentences, approval of
motor vehicle changes.
Judicial review may be sought, by parties with Locus Standi (i.e. Persons
sufficiently affected by the legislation), so time is not wasted by Parliament
considering them all.
VI. DELEGATED LEGISLATION AS DISTINGUISHED FROM

ADMINISTRATIVE POWER
As is usual, the action by the administration is classified into
administrative, Legislative, Judicial or quasi- judicial.
Although thoughtful scholars decry such a conceptual classification of

functions, the fact remains that in the present state of administrative law it
is not possible to do away completely with such exercise of labelling. For
instance, distinction between administrative, Quasi-judicial, and legislative
function is meaningful inter alia because of the following factors :
(i) Publication
If an order is legislative in character, it has to be published in a certain
manner, but publication is not necessary if it is of an administrative nature.
An administrative order refers to a particular individual and in this respect it
is required to be served only on the individual concerned.
(ii) Principles of natural justice

In the case of adjudication, the administration is required to follow the
principles of natural justice, while in case of legislation no such requirement
is necessary.
(iii) Grounds of judicial review.

An administrative action may be challenged on the ground of mala
fides. But it is unlikely for such a challenge to prevail in case of delegated
legislation.
Page | 25
(iv) Duty to give reasons
The requirement of duty to give reasons applies to administrative orders
but not to legislative orders.
(v) Sub-delegation
Differences between legislative and administrative actions also may
become significant when questions of sub-delegation of powers arise. Only in
most exceptional circumstances can legislative powers be sub-delegated, but
administrative powers can be sub-delegated.
Subject to what has been stated above, according to one test, the extent
of applicability of the act should be determined. A power to make rules of
general applicability is legislative, while a power to make orders in
specific cases is administrative".18 As de Smith19 observes : A distinction
often made between legislative and administrative acts is that between
general and particular. With the help of this test it is possible to distinguish
legislative function from administrative action in a large number of cases,
but then there are cases where the test may break down for it is not easy to
distinguish general from particular".20 The difficulty here is that of
distinguishing what is general from what is particular, as the difference is
only a matter of degree.
In India, the courts have proceeded so far on the basis that a power to
fix prices is administrative rather than legislative in nature.21 22 But in Union
of India v. Cynamide India Ltd.23 price fixation was held to be legislative
action. The power to fix tax rates is treated as legislative.24 Extension of
limits of town area committee is held to be legislative function.25
18 Schwartz, American Administrative Law, 108 (1962).

19 Judicial Review of Administrative Action, 17 (1980).
20 Griffith and Street, Principle of Administrative Law, 696 (1977).
21 Dwarka Prasad v. Slate of U.P., AIR 1954 SC 224
22 Diwan Sugar Mills v. Union of India, AIR 1959 SC. 626.
23 AIR 1987 SC 1802.
24 Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 1107.
25 Tulsipur Sugar Company V. Notified Area Committee, Tulsipur, AIR 1980 SC 883.
Page | 26
MERITS OF DELEGATED LEGISLATION26
a. Mitigates Time- There are many activities in which the government

should be concerned about. If every law making authority has been taken
by the parliament, it takes a lots time. In such cases parliament delegates
the law making power to the executive. This is because of the lack of time
or the capacity in making laws for regulation.
b. Flexibility- Every administration has been created by statutes. Each and

every administration has its own legislation and it is adaptable to various
circumstances. Only the administration16 knows the day to day
happenings and the new regulation will be made according to it.
c. Emergency Actions- Every administration with required discretion

should be better in dealing with the possible contingencies. If an
emergency law is to be created suddenly in the administration the
concept of delegated legislation arises.
d. Close Contact with Science and Technology- The development of

science and technology has resulted in various functions in the modern
state. Due to rapid development of science and technology the legislature
cannot be the same. It should be transformed from the legislature to the
executive17.
e. Administrative Legislation- The legislation which is been drafted by the

administration should be useful and familiar with their own departments.
Only when there is proper legislation the workers may work better
compared to the lay members comprising the legislature.
26 DELEGATED LEGISLATION S. Varun School Of Excellence In Law, Tamil Nadu Dr.

Ambedkar Law University, March, 2017 | ISSN: 2394- 5044, The World Journal On
Juristic Polity
Page | 27
DEMERITS OF DELEGATED LEGISLATION27
a. Conflict of Sub-Delegation- When the legislative body is not responsible
and if it doesnt deal with the creation of legislation, the problem of sub-
delegation arises. It means that the law making power goes to the other
bodies than the legislature. Finally it results with a conflict18 that the
other parties should not be accountable to the creation of legislation. It
can be accountable only when the legislative body authorizes to do so.
b. Lack of Publicity- It is not been known by the public, and there is lack of
publicity. The secondary legislation should also be noticeable. Every
legislation which is been made by the administration should be known to
the other members.
c. Dependence on the Legislators- The courts are unable to review such

delegation. The administration should depend on the person who has
created such legislation. It becomes a problem as the court cannot review
such legislation.
d. Power of High Courts- The term delegated legislation can be influenced

by the high courts, when compared to primary legislation. The legislation
which is been made by the persons are not elected directly, and this kind
of legislation can be quashed19. This reduces the time of the parliament
as the government20 will have a legislative program that should keep the
parliament busy.
e. Un-democratic- As a result, legislation is undemocratic21 as most of the

rules and regulations22 are been made by the unelected people and civil
servants. The local authority bylaws have been laid by the elected
councillors.
SOME INSTANCES OF DELEGATED LEGISLATION
1. Advocates Act of 1961: Preamble of Act provides for maintaining

professional ethics and high standard of professional conduct. Bar Council
being an administrative body make rules in this regard.
27 Ibid
Page | 28
2. Export & Import Act with only 8 sections in its fold, lays down rules for
export & import. Under the Act, Central Government has been given the
power to make rules necessary to meet the purpose of the Act.
3. Essential Commodities Act, 1955: The Act governs the maintenance and
supply of essential commodities like sugar, rice, wheat etc. Under the Act
Central Government has been given the power to implement rules and
regulations for the purpose of the Act.
4. Indian Medical Council Act: The preamble of the Act says to maintain high
standard and ethics of medical profession. Indian Medical Council makes
rules in this regard.
5. Right to Information Act, 2005: Section 27 of the Act empowers

appropriate government to make rules to carry out the provisions of the Act.
However, there may be some other form of rule making by the

executive where these provisions instead of being delegated by the
legislature, they may be conferred by the Constitution itself. Article 77 of the
Constitution gives the powers to the President to make rules for more
convenient transaction of the business of the Government. Even the
ordinance making powers of the President under Article 123, and that of
Governor under Article 213 cannot be taken as the delegated legislation as
those are the legislative powers in their hands.
Page | 29
CHAPTER -2
CAUSES OF GROWTH OF DELEGATED LEGISLATION
Delegated legislation is not an isolated phenomenon. Numerous factors
are responsible for its growth. The traditional theory of laissez faire has
been given up by every state and the old police state has long ceased to
regard its role in the social and economic life of the community as that of a
glorified policeman and now has become a welfare state. Because of such a
radical change in the philosophy as to the role to be played by the State, its
functions have tremendously increased in promoting the welfare of its
citizens from cradle to grave. Consequently, delegated legislation has become
indispensable. As stated by the Committee on Ministers powers the following
factors are responsible for the rapid growth of delegated legislation at large
scale:
(i) Pressure upon Parliamentary time

As there is phenomenal increase in functions of state, 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, legislature
passes skeleton legislation containing general policy and empowers the
executive to fill in the details, thus giving flesh and blood to the skeleton so
that it may live28 by making necessary rules, regulations, bye-laws etc. Law-
making is not a turnkey project, readymade in all detail and once this
situation is grasped the dynamics of delegation easily follows.29 The
Committee on Ministers' Powers has rightly remarked :
The truth is that if Parliament were not willing to delegate law-making

power Parliament would be unable to pass the kind and quality of legislation
which modern public opinion requires.
(ii) Technicality
Sometimes, the subject-matter of legislation is of a technical nature and
requires consultation of experts. Members of Parliament may be best
28. Gamer, Administrative Law, 1985, p. 49

29 Avinder Singh v. State of Punjab, AIR 1979 SC 321.
Page | 30
politician but they are no experts to deal with highly technical matters which
are required to be handled by experts In such cases the legislative power
may be delegated to experts to deal with the technical problems. Legislation
concerning atomic energy, nuclear energy, gas, drugs or electricity may be
quoted as illustration of such technicalities.
(iii) Flexibility
Parliament does not function continuously. At the time of passing any
legislative enactment, it is not possible to foresee all the contingencies.
Therefore, power is necessarily required to be given to the Executive to meet
the unforeseen contingencies or to adjust new circumstances arising
frequently. While parliamentary process involves delays, delegated legislation
offers rapid machinery for amendment. Police regulations and certain
economic regulations relating to bank rate, import and exports, foreign
exchange etc. are instances of such situations.
(iv) Experimentation
Ordinary legislative process suffers from the limitation of lack of
viability and experimentation. Delegated legislation enables the executive to
experiment. The method permits rapid utilisation of experience and
implementation of necessary changes in the application of the provisions in
the light of such experience. If the rules and regulations are found to be
satisfactory, they can be implemented successfully. On the other hand if
they are found to be defective, the defects can be cured immediately.30
(v) Emergency
In times of emergency, quick action is required to be taken. An
emergency may rise on account of war, insurrection, floods, epidemics,
economic depression and the like. Legislative process is not equipped to
provide for urgent solution to meet the situation. It is, therefore, necessary
30 Per Fazal Ali, J. in Delhi Laws Act, 1912, Re, AIR 1951 SC 332.
Page | 31
that executive must have power that may be used instantly. Delegated
Legislation is the only convenient remedy.31
(vi) Confidential matters

In some situations public interest demands that the law must not be
known to anybody till it comes into operation. Rationing schemes or
imposition of import duty or exchange control are such matters.
(vii) Complexity of modern administration

Owing to the complex structure of society,, modern administration has
become complex. It is assuming more and more responsibility in promoting
the welfare of the citizens, supervising their health, education and
employment, regulating trade, industry and commerce; and providing a great
variety of other services. In this way the complexity of modern administration
and the expansion of the functions of state of socio-economic sphere have
rendered it necessary to resort to new forms of legislation and to give wide
powers to various agencies on suitable occasions. It is necessary that
administration should be given ample power to implement socio-economic
policies so that immediate action can be taken. By resorting to traditional
legislative process, the entire object may be frustrated by vested interest and
the goal may not be achieved at all.32
Criticism of the growth of Delegated Legislation

There was a time when the growth of delegated legislation was criticised
as undemocratic.33 It was described as an extension of the despotic powers
of bureaucracy. But, with change in time, much of the antipathy has died
down. Ideas about it have changed. It is now considered as the natural
reflection in the sphere of constitutional law, of changes in ideas of
government, resulting from changes in political, social, and economic
31 See Sukhdev Singh v. Bhagat Bam, (1975) 1 SCC 421, 434.

32 Fazal Ali . J. : Delhi Laws Act, 1912, Re AiR 1951 SC 332 ; See also Brij Sunder v.
First Additional District Judge, AIR 1989 SC 572.
33 Lord Hewart, The New Despotism (1929).
Page | 32
thinking, and of the changes brought in our lives owing to scientific
discoveries and technological advances.
However, one must not lose sight of the fact that delegated legislation
suffers from several defects as well. Constitutional legitimation of unlimited
power of delegation to the executive by the legislature may, on occasion, be
subversive to responsible government and erosive of democratic order.34
Many a time, the legislature passes laws in skeleton form containing

only the barest of general policies and leaves everything else to the discretion
of administrative agency. Therefore, the administration armed with law-
making power threatens to overwhelm the little man by trampling upon life,
liberty land property. The executive gets a blanket cheque to do whatever it
likes.
The system thus becomes undemocratic giving rise to the danger that
the government may misuse its powers. The result is that there is wide
spread suspicion and apprehension that civil and personal liberties which
are democratic values may be endangered by an unbridled use of the
technique of delegated legislation by the administration. Further-more, if
law-making is taken over by the government it may make its administration
by barrel of the secretariat pen.35 Therefore, if the technique of delegated
legislation is to serve its laudable task, it is necessary to devise control and
safeguards so that the dangers and risks of abuse inherent therein may be
minimised. Moreover, the question of the desirability of subordinate
legislation is far more a matter of politics than of Administrative Law.36 The
question, therefore, is not about the existence of delegated legislation, but of
its control.

36 Griffith and Street, Principles of Administrative Law, 37 (1973).
Page | 33
CHAPTER 3
TYPES OF DELEGATED LEGISLATION
In the Indian context, practice of empowering the Government to modify
the Act has mostly been delegated as a consequence to the power of
extension and application of laws. The delegated power authorizes the
making of modifications in an Act to be extended, which may be in enabling
Act itself or some other Act. Another occasion for the grant of modification
arises, when "Legislation by reference is adopted". It is a device where an Act
or part of it is taken to be forming a part of another Act. To make adopted
Act fit into framework of the adoptive Act, power is given to the executive to
introduce necessary modifications in the former.
1. RULE
The expression "rule" is defined in the General Clauses Act, 1897, as a

rule made in exercise of a power conferred by any enactment and will include
a regulation made as a rule under any enactment. The Mines Act, 1952, may
be cited as an illustration of a case where a regulation may also be regarded
as a rule. (See sections 58 and 59). The most common form of delegation of
legislative power is to authorize the executive to frame rules for carrying into
effect the objects and purposes of the Act. Rules may be defined as minor
laws. Invariably the Act also sets out for the guidance of the executive the
topics on which such rules may be made, although the lists of topics so set
out are not intended to be and may not be exhaustive.
2. REGULATION
Regulation (as opposed to laws made in the form of Regulations and
falling within the definition of Regulation as contained in the General
Clauses Act, 1897), are somewhat inferior to rules in that they are generally
made by a subordinate authority like a Board or other statutory body
functioning under a statute.37 The draftsman would be well-advised to
37 See A.K v. Board of Secondary Education, 71 CWN 396 (1967) where it is stated that a
rule is superior to a regulation.
Page | 34
preserve a distinction between rules and regulations. The Indian practice is
to confer rule-making powers on the Government itself and where a specified
subordinate authority is singled out for regulating any matter, the subsidiary
legislation is generally in the form of regulations. Such regulations may be
needed only for bind the members of that authority or they may have a wider
significance. Rules, on the other hand, have invariably a much wider
application.38
The word 'Regulation' has also been used in Constitution where power
to govern certain territories is conferred by making 'Regulation'. The word
Regulation is defined in section 3(50) of the General clauses Act in the
following words; "Regulation" shall mean a Regulation made by the President
under Article 240 of the Constitution; and shall include a Regulation made
by the President under Article 243 thereof and; and a Regulation made by
the Central Government under the Government of India Act, 1870, or the
Government of India Act, 1915, or the Government of India Act, 1935". This
type of Regulation is in the nature of principal legislation and not an
instance of subordinate legislation39.
As expressed in the definition of 'rule', a 'regulation' may be made as a

rule and then it partakes the character of a rule. 'Regulation' and 'rule' are
inter interchangeable words.' A regulation made under statutory powers
laying down terms and conditions of service of employees like any other
delegated legislation such as rule has the force of law.40 When power to make
delegated legislation is conferred on different authorities by the same Act, the
words 'rules' and 'regulations' may be utilized to distinguish the source and
to sub-ordinate the latter to former.41 But sometimes the same authority may
be authorized to make 'rules' in respect of certain matters and 'regulation' in
respect of others.
38 Every exercise of a statutory power by a rule-making authority which is of a legislative

and not of an executive character is to be deemed to be a statutory rule within the
meaning of the Rules Publication Act, 1893 (56 & 57 Vict., c. 66).
40 Parvet Qadir V. Union of India, AIR 1975 SC 446 at 451.

41 Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 at 1340.
Page | 35
3. BYE-LAW
The expression "bye-law" is generally used when a body like the

municipal corporation is authorized to deal with specified matters. For
instance, building bye-laws. A bye-law is an ordinance affecting the public or
some members of the public. It necessarily involves restriction of liberty of
action by persons who come under its operation as to acts which but for the
bye-law they would be free to do. Further, if validly made, it has the force of
law within the sphere of its legitimate operation.42
4. ORDER
While a rule is general in character and indiscriminate in its

application, an order, broadly speaking, is specific and may be limited in its
application. On the other hand, instances of orders having wide application
and standing more or less on the same footing as enactments are not
uncommon. Instances of these are orders made under the Defence of India
Act, 1971, the Essential Commodities Act, 1965, the Adaptation Orders
under the Indian Independence Act, 1947, the Constitution and so on.
While an order
having the authority of law behind it may be recognized by courts, unless
the order prescribes a rule of conduct which persons living in the
community have to obey, there can be no question of its enforceability by a
court of law or other authority. It is only where the order is enforceable by
courts or other authority that it can be said to have the force of law.43 Quite
often, use of the capital is resorted to by the draftsman to draw a
42 A bye-law can be challenged if it is unreasonable; while a rule cannot be so

challenged. Mulchand Gulabchandv. Mukumd S hivram, AIR 1952 Born. 296. The
early history of the expression "bye-law" is that when the Danes acquired possession
of a shire in England, the township was often called a "by" and as they enacted laws
of their own, they were called "by-laws" "town-laws" (Iyer's Law Lexicon; see also the
definition in Stroud and Wharton). Also see Kruse v. Johnson, (1898) 2 QB 91at 96.
43 J.A. Shodan v. FN Rana, AIR 1964 SC 648 at 667

Page | 36
distinction between orders enforceable by courts and orders of the strictly
limited variety, but such a device has no legal significance.
5. NOTIFICATION
"Notify means make known and, in the case of public matters, it

generally means that some persons whose duty it is to notify something,
gives it in the manner prescribed and to persons entitled to receive it. Quite
often, the relevant statutes may define "notification" to mean notification in
the Official Gazette. The Burma General Clauses Act contains such a
definition. Notifications may be of two kinds. Most Government orders are
notified so that the public may know them. All of them do not have the force
of law. Only such notifications have the force of law which are a species of
subordinate legislation passed by a body having authority to promulgate
them and which lay down some rules of conduct for persons in the
community to obey. Appointments, postings and transfers of officers which
are often notified in the Gazette cannot obviously have the force of law.44
6. SCHEME
A "scheme", may be of two kinds. It may embody subordinate

legislation containing a body of rules binding on person with whom the
rules are concerned and in such a case, if passed by an authority having the
necessary power to do so, they will be enforceable in courts of law or by
other authorities and will have the force of law. The other kind of scheme
may be purely executive in character and does not contain any rules of
conduct for any body to follow.45
7. PROCLAMATION
A "proclamation" is the act of proclaiming, a declaration or notice by

public outcry such as is given by criers or a public notice in writing given by
a State or departmental official of some act done by the Government or to be
44 Ibid
45 Ibid
Page | 37
done by the people. It is in the above sense that the word is used in section
26 of the Police Act of 1861 which provides for the disposal of unclaimed
property by the police after issuing a proclamation.
On the other hand, legislation in pursuance of some statutory power

may also take the form of proclamations. For instance, in case of failure of
the constitutional machinery in any State, the President may, by
Proclamation, assume to himself the powers of the State legislature and also
make such incidental, or consequential provisions as may be necessary or
desirable to give effect to the objects of the Proclamation. (art. 356 of the
Constitution). The President may also declare by Proclamation a state of
emergency which has the force of law (art. 352).
8. RESOLUTION
A "resolution" passed by Parliament is the form in which that body

expresses an opinion. It is generally a suggestion or declaration concurred
in by both Houses where there are two Houses or passed by one House if
there be but one and not submitted to the executive for approval. The
Legislature often requires the executive to take action by means of
resolution. For implementing such resolutions it may sometimes be
necessary to enact legislation. (See for instance, the Commissions of Inquiry
Act, 1952 (60 of 1952; The Indian Rubber Control Act, 1934).]
A "resolution passed by Parliament under article 249 or by the

Legislature of a State under article 252 is not equivalent to a statute. It is
only a declaration and enables some further action, including legislative
action, to be taken.
THE NEW DESPOTISM
The tendency to regulate certain matters by subordinate legislation

as exemplified in English Parliamentary Legislation, had earlier attracted a
Page | 38
great deal of attention and considerable hostile comment. This apparent
surrender by Parliament of a large part of its legislative functions to the
executive departments of the State was focused in 1929 by Lord Hewart of
Bury in the New Despotism (London). Cecil T.Carr in Delegated Legislation
(Oxford University Press, (1921) and WA. Robson in Justice and
Administrative Law, Macmillan & Company (1928), had already examined
the extent of the growth of the phenomenon, the advantages and
disadvantages of the practice, and the nature of the checks on it. The
publication of Hewart's book had been preceded by the appointment on the
30'h October, 1929, of a Committee (known as the Doroughence Committee
to consider the powers exercised by Ministers of the Crown by way of
delegated legislation and to report -:
V. What safeguards are desirable or necessary to secure the

constitutional principles of the sovereignty of Parliament and the
supremacy of the law. The report of that Committee published in 1932
by H.M's stationery Office as Cmd. 4060 to a large extent provided the
necessary corrective.46
VI. "The truth is that if Parliament were not willing to delegate lawmaking
power, Parliament would be unable to pass the kind and quantity of
legislation which modern public opinion requires."47 On the ground
merely of efficient drafting, Lord Thring,48 Parliamentary Counsel to the
Treasury, had advocated in 1877 that procedure and matters of detail
should not be included in an Act, but if possible should be left to be
prescribed, and his successors in the Parliamentary Drafting Office of
the Treasury have maintained this view.49
46 Bartley's General Clauses Act, 1897 at 151-152 (1940).

47 Report of the Committee on Minister's Powers, at 23.
48 Thring, Practical Legislation, Chapter II, paragraph 12.
49 For instance, Sir 1 lenery Jenkyns, a Parliamentary Counsel, has recorded the
following official minute.
"Statutory rules are in themselves of great public advantage because the subject of
them can thus be regulated after a Bill passes into an Act with greater care and
minuteness, and with better adaptation to local or other special circumstances than
they possibly can be in the passage of a Bill through Parliament. Besides, they
Page | 39
REPORT OF COMMITTEE ON MINISTERS' POWERS-
The Committee on Ministers' Powers referred to above found the
practice of delegating law-making power justifiable and even
inevitable, because
(a) It relieved pressure on Parliamentary time, leaving Parliament to

deal with essential principles of legislation.
(b) Parliament cannot effectively deal with technical matters.
(c) Administrative details cannot be worked out in time, nor can the
contingencies or local conditions to be provided for be foreseen.
(d) Unknown future conditions demand flexibility.
(e) The need to experiment and profit by experience cannot

otherwise be met,
(f) Sudden emergencies cannot otherwise be handled.
CONSTITUTIONALITY OF DELEGATED LEGISLATION

The Privy Council was the highest Court for appeal from India
in constitutional matters till 1949. The question of constitutionality came
before the Privy Council in the famous case of R. Vs. Burah (1878) 3 AC
889. An Act was passed in 1869 by the Indian Legislature to remove Goro
Hills from the civil and criminal jurisdiction of Bengal and vested the
powers of civil and criminal administration in an officer appointed by the
Legislative Governor of Bengal.
The Legislative Governor was further authorized by section 9 of the

Act to extend any provision of this Act with incidental changes to Khasi and
Jaintia hills. By a notification the Legislative Governor extended all the
provisions of the Act to the districts of Khasi and Jaintia Hills. One Burah
was tried for murder by the commissioner of Khasi and Jaintia Hills and
mitigate the inelasticity which often otherwise makes an Act non-workable and are
susceptible of modifications from time to time by the Government Department at any
time of the year as circumstances arise".
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was sentenced to death.
The Calcutta High Court declared section 9 as unconstitutional

delegation of legislative power by the Indian legislature. The ground was
that the Indian Legislature is a delegate of British Parliament, therefore, a
delegate cannot further delegate. The Privy Council on appeal reversed the
decision of the Calcutta High Court and upheld the constitutionality of
section 9 on the ground that it is merely a conditional legislation.
The decision of the Privy Council was interpreted in two different ways.
I . Indian legislature was not delegate of British Parliament, there is no limit on

the delegation of legislative functions.
I I . Since Privy Council has validated only conditional legislation. Therefore,

delegation of legislative power is not permissible.
So, it did not become clear whether full-fledged delegated legislation was
allowed or only conditional legislation was allowed.
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CHAPTER - 4
CONDITIONAL LEGISLATION
Conditional legislation may be defined as 'a statute that provides
controls but specifies that they are to go into effect only when a given
administrative authority finds the existence of conditions defined in the
statute.50
When conditional legislation is passed by the legislature, the law is full

and complete. No legislative function is delegated to the executive. However,
such Act is not brought into force. It is left to the executive to bring the Act
into operation on fulfilment of certain conditions and for that reason the
legislation is called 'conditional legislation.
According to Cooley51 It is not always essential that a legislative Act

should be a completed statute which must in any event take effect as law at
the time it leaves the hands of legislative department. A statute may be
conditional, and its taking effect may be made to depend upon some
subsequent event.
The question of permissible limits of delegation of law-making power

as conditional legislation can be considered in three different periods for the
sake of better comprehension.
(I) Privy Council and conditional legislation

The doctrine of conditional legislation was laid down by the Privy
Council in Queen v. Burah52 In this case the view of Privy Council was that
where plenary powers of legislation exist as to particular subjects, whether in
50 Hart, an Introduction to Administrative Law with selected cases, p. 310.

51 A Treatise on the Constitutional Limitations, 8th Ed., Vol. 1, p. 227.
52 5 I.A. 178 (18T8), for text, See supra.
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an Imperial or in a Provincial Legislature, they may well be exercised, either
absolutely or conditionally. Legislation, conditional on the use of particular
powers or on the exercise of a limited discretion, entrusted by the Legislature
to persons in whom it places confidence is no uncommon thing and, in many
circumstances it may be highly convenient.
The doctrine of conditional legislation has been applied in a number of

cases. In Emperor v. Banwari Lal,53 an ordinance promulgated by the
Governor General provided for setting of Special Courts. But the operation of
the ordinance was left to the Provincial Government on being satisfied that
emergency had come into existence. The validity of the ordinance was
upheld. According to the Privy Council it was a piece of conditional
legislation as the legislation was complete and what had been delegated was
the power to apply the ordinance on fulfilment of certain conditions.
These cases show that the delegation of legislative power was upheld
by the Privy Council under the rubric of conditional legislation.
(II) Federal Court and Conditional Legislation

In Jatindra Nath Gupta v. Province of Bihar,54 the Federal Court
held that there could be no delegation of legislative power in India beyond
conditional legislation. The Court took a restrictive view of the concept of
conditional legislation.
I I I . Supreme Court And Conditional Legislation

Federal Court had taken a narrow view with regard to the concept of
conditional legislation while the Supreme Court has taken a liberal view.
- In Inder Singh v. State of Rajasthan,55 an ordinance was

promulgated for two years, but the Governor was empowered to further
extend the life of the said ordinance by a notification. The Governor
extended the life of the ordinance first by two years and then again by
two years. The Supreme Court held, the power to extend the life of
ordinance valid as being conditional legislation. This is a provision
similar to that involved in Jatindra in which it was decided that the
53 72 I.A. 57 (1949)
53 AIR 1949 F.C. 175; for text, see supra.
55 AIR 1957 SC 51.
Page | 43
power to extend the operation of an Act was delegated legislation and
not conditional legislation and therefore bad and void. In this way, the
Supreme Court has broadened the concept of conditional legislation.
In applying the doctrine of conditional legislation in the cases coming

before it, the Supreme Court has adopted a liberal approach in Basant
Kumar v. Eagle Rolling Mills.56 57 Section 1 (3) of the Employees State
Insurance Act, 1948 passed by Parliament provided that the "Act shall come
into force on such date or dates as the Central Government may by
notification in the official Gazette, appoint, and different dates may be
appointed for different provisions of this Act and for different States and for
different parts thereof. The Supreme Court held the provision valid as
conditional legislation.
In A. K. Roy v. Union of India58 the Court upheld the validity of a

provision in a constitutional amendment giving unfetterred discretion to the
executive to bring the amendment into force.
IV.Liberalisation of the concept of conditional legislation.

The Supreme Court has liberalised the concept of conditional legislation.
In Kerala State Electricity Board v. Indian Aluminium,59 a Kerala Act was
passed to regulate production, supply and distribution of essential articles.
But the statute provided no list of articles; it left it to the government to
notify an article as an essential article and bring it within the purview of
the Act. The Supreme Court upheld the delegation of power as conditional
legislation.
A special reference may be made to Tulsipur Sugar Co. Ltd. v. Notified

Area Committee.60 In this case, a notification was issued under section 3 of
the U.P. Town Areas Act, 1914 extending the limits of Tulsipur Town to
village Shitalpur where the sugar factory of the plairtiff was situated. The
notification was challenged, inter alia, on the ground that the procedure
56 AIR 1964 SC 1260.

57 AIR 1982 SC 710.
58 (1982) 1 SCC 271
59 AIR 1976 SC 1031.
60 AIR 1980 SC 882.
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under the Act was not followed and hence the subordinate legislation was
bad. Rejecting the contention, the Supreme Court held that it was a case of
conditional legislation and not of subordinate legislation. Referring to a
number of cases, the Supreme Court said that the effect of making the Act
applicable to geographical area is in the nature of a conditional legislation
and that it cannot be characterised as a piece of subordinate legislation.
V.American Supreme Court and Contingent Legislation.

The doctrine of Contingent legislation has been recognised and applied
by the American Supreme Court in the leading case of Field v. Clark.61 In
this case, the President was authorised to suspend the operation of an Act
permitting free import of certain products in the U.S. on being satisfied that
the duties imposed upon such products were reciprocally unequal and
unreasonable. The Supreme Court held the Act valid on the ground that the
Act was complete and the President was a mere agent of Congress to
ascertain and declare the contingency upon which the will of Congress was
to take effect. The Court quoted with approval the following classical passage
from a Pennsylvanian case.62
The legislature cannot delegate its powers to make a law; but it can
make a law to delegate a power to determine some fact or state of things
upon which the law intends to make its own action depend. To deny this
would be to stop the wheels of Government. There are many things on which
wise and useful legislation must depend which cannot be known to the law-
making power, and must, therefore, be the subject of inquiry and
determination outside the hall of the Legislature.63
VI. Conditional Legislation and Delegated Legislation :

Distinction
A distinction is made between conditional legislation and delegated
legislation on basis of discretion. In conditional legislation, it is the function
of executive to apply the law after fact-finding, e.g., to inquire whether the
facts requiring operation of the Act exist; but in delegated legislation, it is left
61 143 US 649 (1892).

62 Lockes Appeal, (1873) 72 Pa. 491.
63 Quoted in Delhi Laws Act case, AIR 1951 SC 332.
Page | 45
to the discretion of government whether to exercise discretion delegated to it
or not. In the case of Hamdard Dawakhana v. Union of India,64 the
Supreme Court distinguished the two in the following words :
The distinction between conditional legislation and delegated

legislation is that in the former the delegates power is that of determining
when a legislative rule of conduct shall become effective and the latter
involves delegation of rule-making power which constitutionally may be
exercised by the administrative agent.65 66
It is submitted that the discretion based on distinction between

conditional legislation and delegated legislation is artificial. The question is :
Can it be said that there is total absence of discretion in conditional
legislation. In fact, whether emergency exists or not, or whether tariff rates
are low or high or whether the application of law is reasonable or
unreasonable is a matter of discretion and cannot be decided on mere facts.
Moreover, in view of the rapid growth of administrative law and

acceptance of the doctrine of delegated legistation, it is not necessary to stick
to artificial distinction between delegated legislation and conditional
legislation. What is to be noted is that when the Courts were not readily
approving or accepting the doctrine of delegated legislation, in the guise of
conditional legislation, they were seeking to uphold legislative measures. It
must not be forgotten that contingency formula is nothing but a fiction
employed by the Supreme Court of United States to get away from the
doctrine of separation of powers. Similarly Privy Council did not like to
commit itself to the position that subordinate legislature could delegate
legislative powers and therefore evolved the doctrine of conditional legislation
to indicate that what was being delegated was some minor legislative power.
Now that the theory of delegated legislation has been accepted in India, it is
not necessary to adhere to the so-called artificial distinction between the two.
As a matter of fact, delegated legislation is the wider term which would
include the narrower term conditional legislation, inasmuch as, conditional
64 AIR 1960 SC 534.

65 Ibid, at p. 566.
66 Lachmi Narain v. Union of India, AIR 1976 SC 714.
Page | 46
legislation is a form of delegation and a very common instance of delegated
legislation.67
VII. Subordinate Legislation :

A provision in the statute for "such inquiry as it may consider
necessary" by a. subordinate authority is generally an enabling provision to
facilitate the subordinate authority to obtain relevant information from any
source and it is not intended to vest any right in any body. While exercising
legislative function, unless unreasonableness or arbitrariness is pointed out,
the Court cannot interfere.
Clarifying the law further, the Court held :
(i) the effect of subordinate legislation is the same as that of the parent
statute if validly made146;
(ii) if the subordinate legislation conflicts with parent Act, then it must
give way to the substantive statute and be so read in its context68;
(iii) subordinate legislation must be read in a meaningful manner as to

give effect to the provisions of the statute and where two constructions are
possible, a construction which would make the provision workable and in
consonance with the statutory scheme be preferred69;
(iv) if rules and regulations are to be framed by following a particular

procedure given in the statute, burden of proof would lie on the person who
challenges such rules and regulations as violative of such procedure.70
VIII. GENERAL OBSERVATIONS

In the area of delegation of legislative power, the Courts have
recognised and applied the doctrine of excessive delegation. A review of the
relevant judgments shows that the Courts do support the thesis, that
delegation of legislative power is valid only if the delegating statute declares
the policy which the delegate is to execute in exercising rule-making power.
In Gwalior Rayon Khanna J. has rightly reiterated the doctrine of excessive
67 State of Punjab v. Devana Modern Breweries Ltd., (2004) 11 SCC 26.

68 I.T.W. Signode India Ltd. v. C.C.E., (2004) 3 SCC 48.
69 Romesh Mehta v. Sanwal Chand Singhvi, (2004) 5 SCC 409.
70 Om Prakash v. State of U.P., (2004) 3 SCC 402.
Page | 47
delegation with persuasive arguments. In his own words : The rule against
excessive delegation of legislative authority flows from and is a necessary
postulate of the sovereignty of people. A number of general principles which
emerge from the various judgments relating to delegation of legislative power
are as follows :
(1) The Constitution confers law-making power on the Legislature and as such
the said function cannot be delegated by the legislature to the Executive.
The legislature can neither create a parallel legislature nor destroy its
legislative power.
(2) Delegation of legislative power is permissible provided this does not amount
to abdication of legislative function and policy is laid down by the
legislature.
(3) The legislature cannot delegate essential legislative function. The essential
legislative function consists in the determination of the legislative policy
and making it a binding rule of conduct.
(4) If the legislature has performed its essential function of laying down the
policy of law, there is no constitutional bar against delegation of subsidiary
or ancilliary powers in that behalf to the executive for making the
legislation effective, useful and complete.
(5) A statute delegating law-making powers to the executive shall be invalid if

it lays down no principles and provides no standards for guidance to the
rule-making body.
(6) The legislative policy can be formulated as broadly and with as little or
much detail as the Legislature thinks fit. It is not necessary that the policy
must be express, it may be implied as well. It may be gathered from history,
preamble, title, scheme, statement or objects and reasons. Guidance may
be found anywhere in the statute.
(7) Power to repeal does not make delegation valid if otherwise it is excessive,
Page | 48
impermissible or unwarranted.
(8) When a statute is challenged on the ground of excessive delegation, it must

satisfy two tests : (i) whether it delegates essential legislative function or
power, and (ii) whether the legislature has enunciated its policy and
principle for the guidance of the delegate.
(9) Whether the legislature has performed the essential legislative function and
laid down the policy and the delegation is permissible or not depends upon
the circumstances of the statute under consideration.
(10) Delegated legislation may take different forms. However, these principles
apply to all forms of delegation viz., conditional legislation, subordinate
legislation, supplementary legislation, sub-delegation etc.
Delegated legislation in the changed socio-economic complexion has become

a constituent element of legislative power as a whole.71 Broad delegations of
legislative power are upheld where they relate to taxation, socio-economic
legislation and elected bodies. The doctrine of excessive delegation and
legislative policy are safety valve necessary for functioning of Democratic
Government in developing Countries
71 Tata Iron and Steel Co. Ltdy. Their Workmen, AIR 1972 SC 1918, 1922.
Page | 49
CHAPTER 6
SUB-DELEGATION
(Delegatus non potest delegare) When a statute confers some legislative

powers on an executive authority and the latter further delegates those
powers to another subordinate author or agency, it is called sub-delegation.
Thus, in sub-delegation, a delegate further delegates. This process of

sub-delegation may go through many stages. If we may call the enabling Act
the parent and the delegated and sub-delegated legislation the children,
the parent, in his own lifetime may beget descendants up to four or five
degree.
An important illustration of sub-delegation is found in the Essential

Commodities Act, 1955. Section 3 of the Act empowers the Central
Government to make rules. This can be said to be the first-stage delegation.
Under Section 5, the Central Government is empowered to delegate powers
to its officers, the State Governments and their officers.
Usually under this provision, the powers are delegated to State

Governments. This can be said to be the second-stage delegation (sub-
delegation). When the power is further delegated by State Governments to
their officers, it can be said to be the third-stage delegation (sub-sub-
delegation). Thus, under Section 3 of the Essential Commodities Act, 1955,
Page | 50
the Sugar Control Order, 1955 was made by the Central Government (first-
stage delegation). Under the Order, certain functions and powers are
conferred on the Textile Commissioner (second-stage delegation). Clause 10
empowered the Textile Commissioner to authorize any officer to exercise on
his behalf all or any of his functions and powers under the Order (third-stage
delegation).
I. OBJECT:
The necessity of sub-delegation is sought to be supported, inter alia, on the
following grounds:
1. Power of delegation necessarily carries with it power of further delegation;

and
2. Sub-delegation is ancillary to delegated legislation; and any objection to

the said process is likely to subvert the authority which the legislature
delegates to the executive.
Sub-delegation of legislative power can be permitted either when such power

is expressly conferred by the statute or may be inferred by necessary
implication.
II. Express Power:

Where a statute itself authorizes an administrative authority to sub-
delegate its powers, no difficulty arises as to its validity since such sub-
delegation is within the terms of the statute itself. Thus, in Central Talkies
Ltd. v. Dwarka Prasad,72 the U.P. (Temporary) Control of Rent and Eviction
Act, 1947 provided that no suit shall be filed for the eviction of a tenant
without permission either of a District Magistrate or any officer authorized by
him to perform any of his functions under the Act. An order granting
permission by the Additional District Magistrate to whom the powers were
delegated was held valid.
72 1961 AIR 606, 1961 SCR (3) 495

Page | 51
On the other hand, in Ganpati Singhji v. State of Ajmer73, the
parent Act empowered the Chief Commissioner to make rules for the
establishment of proper system of conservancy and sanitation at fairs. The
rules made by the Chief Commissioner, however, empowered the District
Magistrate to devise his own system and see that it was observed. The
Supreme Court declared the rules ultra vires as the parent Act conferred the
power on the Chief Commissioner and not on the District Magistrate and,
therefore, the action of the Chief Commissioner sub-delegating that power to
the District Magistrate was invalid. Sometimes, a statute permits sub-
delegation to authorities or officers not below a particular rank or in a
particular manner only. As per settled law if the statute directs that certain
acts shall be done in a specified manner or by certain persons, their
performance in any other manner than that specified or by any other person
than one of those named is impliedly prohibited. In other words, where a
power is given to do a certain thing in a certain way, the thing must be done
in that way or not at all.
III. Implied power:

But what would happen if there is no specific or express provision in
the statute permitting sub-delegation? The answer is not free from doubt. In
Jackson v. Butterworth, Scott, L.J. held that the method (of sub-
delegating power to issue circulars to local authorities) was convenient and
desirable, but the power so to sub-delegate was, unfortunately, absent.
The other view, however, is that even if there is no provision in the

parent Act about sub-delegation of power by the delegate, the same may be
inferred necessary implication. Griffith rightly states, if the statute is so
widely phrased that two or more tiers of sub-delegation are necessary to
reduce it to specialized rules on which action can be based, then it may be
that the courts will imply the power to make the necessary sub-delegated
legislation.
73 1955 AIR 188, 1955 SCR (1)1065

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- In States v. Baren,74 the parent Act conferred on the President the
power to make regulations concerning exports and provided that
unless otherwise directed the functions of the President should be
performed by the Board of Economic Welfare. The Board sub-
delegated the power to its Executive Director, who further sub-
delegated it to his assistant, who in turn delegated it to some
officials. The court held all the sub-delegations valid.
IV. Concurrent Jurisdiction:

If the authority, on whom power is conferred, validity sub-delegates it, it can
even then exercise the power provided that it so wants. In Godavari v. State
of Maharashtra75, the power of detention was conferred on the State
Government under the Defence of India Rules but it was sub-delegated to the
District Magistrate. It was held the power could be exercised either by the
District Magistrate or the State Government. In such a case both principal
authority and delegate will have concurrent jurisdiction.
V. Sub-delegation can be studied under three sub-heads:

(a) Sub-delegation of legislative power.
(b) Sub-delegation of judicial power.
(c) Sub-delegation of administrative power.
(a)Sub-Delegated Of Legislative Power:

The maxim delegatus non potest delegare (a delegate cannot further
delegate) applies to legislation also and it is not possible for the delegate to
sub-delegate the power conferred on him unless the parent Act authorises
him to do so either expressly or by necessary implication. Assuming that the
sub-delegation is permissible under the parent Act, what are the limitations
and safeguards in this behalf?
Here, the following propositions may be laid down:
74 No. 9510369. September 04, 1996

75 1964 AIR 1128, 1964 SCR (6) 446
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(1) If the parent Act permits sub-delegation to officers or authorities not below a
particular rank, then the power can be delegated only to those officers or
authorities.
Under Section 3 of the Defence of India Act, 1962, the Central Government
was empowered to make rules authorising detention of persons by an
authority not below the rank of a district magistrate. Section 40 authorised
the State Government to delegate its powers to any officer or authority
subordinate to it. The Supreme Court held that the power of detention could
be sub-delegated to any officer not below the rank of a District Magistrate
and the exercise of power to the Additional District Magistrate was illegal.76
But even if there is no provision in the parent Act that the sub-delegation
should be made to an officer or an authority not below a particular rank, the
courts have taken the view that the power can be sub-delegated only to
competent and responsible persons.
(2) Sub delegate cannot act beyond the power conferred on him by the delegate.
- In Blackpool Corpn. V. Locker77, under the Defence Regulations,

1939, the Minister was empowered to take possession of land. By
issuing circulars, he sub-delegated this power to the Blackpool
Corporation, as was within his powers. The circulars contained
certain conditions and one of them was that furniture should not be
requisitioned. The Corporation requisition and plaintiffs dwelling
house with furniture. The Court of Appeal held the impugned action
ultra vires since it went beyond conferred by the Minister on the
Corporation.
(3) If some conditions are imposed by the delegate who must be complied with
by the sub-delegate before the exercise of power, those conditions must be
fulfilled; otherwise exercise of power will be ultra vires.
Under Section 4 of the Essential Supplies (Temporary Powers) Act, 1946,

certain powers were sub-delegated by the Central Government to the
76 Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619: (1965) 2 SCR 845.
77 (1949) 1 KB 349: (1948) 1 All ER 85.
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Provincial Government subject to the condition that before making any
order, concurrence of the former must be obtained by the latter. An order
was passed by the Provincial Government without obtaining concurrence of
the Central Government. The order was held ultra vires as the conditions
was not satisfied.78
Similarly, if sub-delegation can be made through regulations, it could not be

affected by passing a resolution.79
(B)Sub-Delegation of Judicial Power:
In England80 and in America81 it is well-established that a judicial or quasi-

judicial power conferred on a particular authority by a statute must be
exercised by that authority and cannot be delegated to anyone unless such
delegation is authorised by the statute either expressly or by necessary
implication.
- In Morgan v. U.S.82 the Supreme Court of America held that the

duty to decide cannot be performed by one who has not considered
evidence or argument. It is not an impersonal obligation. It is akin to
that of a judge. the one who decides must hear.
De Smith83 says: the maxim (delegates non potest delegare) is applied

with the utmost rigour to the proceedings of the ordinary courts, and in the
entire process of adjudication a judge must act personally, except insofar as
he is expressly absolved from his duty by statute. only in very exceptional
circumstances may judicial functions be sub-delegated in the absence of
express authorisation.
Lord Denning84 rightly states: while an administrative function can

often be delegated, a judicial function rarely can be; no judicial tribunal can
78 Radhakrishan v. State, AIR 1952 Nag 387.

79 Naraindas v. State of M.P., (1974) 4 SCC 788; AIR 1974 SC 1232
80 Halsburys laws of England (4th Edition, volume. 1) at p. 34; de smith, Judicial Review
of Administrative Action (1995); Local Govt. Board v. Arlidge, 1915 AC 120: 84 LJKB
72; Wade, Administrative law (1994)
81 Runkle v. U.S., (1887) 122 US 593.
82 (1936) 298 US 468.
83 Judicial Review of Administrative Action (1995)
84 Barnard v. National Dock Labour Board, (1953) 1 All ER 113: (1953) 2 QB 18: (1953)
2 WLR 995.
Page | 55
delegate its functions unless it is enabled to do expressly or by necessary
implication.
The same principle is accepted in India as the basic principle.85 In the

words of Hidayatullah, (as he then was) it goes without saying that judicial
power cannot ordinarily be delegated unless the law expressly or by clear
implication permits it.86
In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C.87

under the relevant Act and the Rules the Minister was empowered to hear
the parties and to pass the final order, but he delegated his function of
hearing to his Secretary, who heard the parties and put up a note before the
Minister for final decision and the order was passed by the Minister.
Quashing the orders, passed by the Minister, Subba Rao, J. Held that it was
not a judicial hearing. if one person hears and another decides, personal
hearing becomes an empty formality.
At the same time, practical difficulties must also be appreciated. It is

not possible for all judicial and quasi-judicial authorities to take the entire
evidence in all cases, hear the parties and their representatives or advocates,
and give decisions. In these circumstances courts have allowed some
relaxation and held that it is permissible for judicial or quasi-judicial bodies
to delegate certain functions, e.g. holding of inquiries, taking of evidence,
hearing of parties and to appoint assistants for the said purposes, provided
always that after receiving evidence in the aforesaid manner they give an
opportunity to the parties to clarify their stand before a decision is finally
arrived at by them.
It is submitted that the following observations of Mahajan, in the

leading case of Delhi Laws Act, 1912 in re88, lay down correct law on the
point, wherein his Lordship stated:
No public functionary can himself perform all the duties he is privileged to

perform, unaided by agents and delegates, but from this circumstance it
85 Sahni Silk Mills Ltd. V. ESI Corpn., (1994) 5 SCC 346 (352).
86 Bombay Municipal Crpn. V. Thondu, AIR 1965 SC 1486: (1965) 2 SCR 929 (932)
87 AIR 1959 SC 308 (327): 1959 Supp (1) SCR 319.
88 AIR 1951 SC 332: 1951 SCR 747.
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does not follow that he can delegate the exercise of his judgment and
discretion to others. The judges are not allowed to surrender their judgment
to others. The judges are not allowed to surrender their judgment to others.
It is they and they alone who are trusted with the decision of a case.89
(C)Sub-Delegation of Administrative Power:
In certain circumstances and on certain conditions, administrative power

can be sub-delegated.
- Exclusion of judicial review:
The rule of law has always recognised power of judiciary to review legislative
and quasi-legislative acts. The validity of a delegated legislation can be
challenged in a court of law. As early as 1877 in Empress v. Burah90, the
High Court of Calcutta High Court was reversed by the Privy Council91,
neither before the High Court nor before the Privy Council it was even
contended that the court had no power of judicial review and, therefore,
cannot decide the validity of the legislation.
Sometimes, however, attempts are made by the legislature to limit or exclude

judicial review of delegated legislation by providing different modes and
methods. Thus, in an Act a provision may be made that rules, regulations,
bye;laws, etc. made under it shall have effect as if enacted in the Act, shall
be final; shall be conclusive, shall not be called in question in any court,
shall not be challenged in any legal proceedings whatsoever and the like.
The question is whether in view of these provisions judicial review of
delegated legislation is ousted?
- Ex: finality clauses
89 Murray v. Hoboken, (1856) HOW 272, 284: we do not consider Congress can
withdraw from judicial cognizance any matter which from its nature, is the subject of
a suit at the common law, or in equity, or in admiralty.
90 ILR 3 Cal 64: 1 CLR 161.
91 R v. Burah, (1878) 3 SC 889: 51A 178: 4 Cal 172.
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Sometimes, provisions are made in a statute by which the orders passed by
administrative tribunals or other authorities are made final. This is known
as statutory finality. Such clauses are of two types:
(i) Sometimes no provision is made for filing any appeal, revision or reference to
any higher authority against an order passed by the administrative tribunal
or authority; and
(ii) Sometimes an order passed by the administrative authority or tribunal is

made final and jurisdiction of civil court is expressly ousted.
With regard to the first type of finality, there can be no objection, as no one
has an inherent right to appeal. It is merely a statutory right and if the
statute does not confer that right on any party and treats the decision of the
lower authority as final, no appeal can be filed against that decision.92
VI. CONTROL OF SUB-DELEGATED:

All the fundamental principles which apply to the functioning of an
administrative authority exercising its powers, whether legislative, judicial or
quasi-judicial would apply to control the sub-delegated legislation as well.
One basic principle is that a sub-delegate cannot act beyond the scope of
power sub-delegated to him. If the sub-delegation is conditional, then it is
necessary that sub-delegate must observe the conditions otherwise his
action will be ultra vires.
VII. CRITICISM
The practice of sub-delegation has been heavily criticized by jurists. It
is well established that the maxim delegatus non potest delegare (a
delegate cannot further delegate) applies in the field of delegated legislation
also and sub-delegation of power is not permissible unless the said power is
conferred either expressly or by necessary implication. de Smith says, there
is strong presumption against construing a grant of delegated legislative
power as empowering the delegate to sub-delegate the whole or any
substantial part of the law-making power entrusted to it. Bachawat, J. in
the leading case of Barium Chemicals Ltd. v. Company Law Board states:
92 For detailed discussion, as to right of appeal, Thakker, Code of Civil Procedure (2002,
Vol.II)
Page | 58
The naming of a delegate to do an act involving a discretion indicates that
the delegate was selected because of his peculiar skill and the confidence
reposed in him, and there is a presumption that he is required to do the act
himself and cannot re-delegate his authority.
It is also said, sub-delegation at several stages removed from the

source dilutes accountability of the administrative authority and weakens
the safeguards granted by the Act. It becomes difficult for the people to know
whether the officer is acting within his prescribed sphere of authority. It also
transfers power from a higher to a hierarchically lower authority. It is,
therefore, necessary to limit in some way the degrees to which sub-
delegation may proceed.
Finally, there are serious difficulties about publication of sub-delegated

legislation. Such legislation, not being an Act of Legislature, there is no
general statutory requirement of publicity. Though casually made by a
minor official, sub-delegation creates a rule and sets up a standard of a
conduct for all to whom the rule applies. No individual can ignore the rule
with impunity. But at the same time the general public must have access to
the law and they should be given an opportunity to know the law. In case of
such delegated and sub-delegated legislation, proper publication is lacking.
CHAPTER -6
RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER
As laid down in Delhi Laws Act case restraints on delegation are that
legislature should not delegate its essential legislative function which means
laying of policy and enacting it into a binding rule of conduct. This means
that the legislature should lay down standards or policy in the delegating Act
and the delegate may be left free to execute the policy. Thus, in Delhi Laws
Act case, the doctrine of excessive delegation was propounded.
I. Excessive Delegation : Permissible Limits

In India, the Courts follow the doctrine of excessive delegation. This
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doctrine, borrowed from U.S.A.,93 means that an Indian legislature cannot
delegate unlimited legislative power to an administrative authority. The
advantage of the doctrine is that the courts can declare too broad delegation
of legislative power as excessive and hence invalid.94
It is now well settled by the majority judgment in In Re Delhi Laws Act,

191295 96 that there is a limit beyond which delegation may not go. As
regards the determination of the limit of delegation, there are two views :.
(1) Legislature can delegate legislative power provided this does not
amount to abdication of essential legislative function; and
(2) Legislature can delegate legislative power provided that it lays down
the policy. Courts have determined the validity of delegation of
legislative power on basis of these principles. The first principle has
been applied by the courts only in few cases. In most of cases the
validity of the delegation of legislative power has been examined on
basis of legislative policy.
(a) Legislative policy to be found in Essential Legislative Function

In a series of cases the Supreme Court has decided that the legislature
cannot delegate its essential legislative function which comprised the
formulation of policy and enacting it into a binding rule of conduct. It means
that the legislature must declare the policy of the law, lay down legal
principles and provide standards for the guidance of the delegate to
promulgate delegated legislation, otherwise the law will be bad on account of
excessive delegation.
In Raj Narain Singh v. Patna Administration Committee53

Section 3(1) (f) of the impugned Act empowered the Patna Local
Government to apply to Patna any provision of the Bihar and Orissa
Municipal Act, 1922 with such modification as it may think fit. The
93 Schwartz, Administrative Law, 34-50 (1976) ; Also, Schwartz, American

Administrative LawA Synoptic Survey, 14 Israel L.R. 413-415.
94 See Federal Energy Amin. v. Algonquin,, SNG. Inc., 426 US 458, 559 (1976)
95 AIR 1951 SC 332, 345, 387, 401.
96 AIR 1954 SC 465.
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Government picked up one section, modified it and applied it to
Patna. The Supreme Court held the delegation invalid on the ground
that the power to pick out a section for application to another area
amounts to delegating the power to change the policy of the Act
which is an essential legislative power and hence cannot be
delegated.
In Harishankar Bagla v. State ofM.P.,97 under Section 3 of the

Essential Supplies (Temporary Powers) Act, 1946 the Central
Government was authorised to issue an order for the regulation of
production, distribution etc. of essential commodities and in section
6 it was provided that an order made under Section 3 shall have
effect notwithstanding anything inconsistent therewith contained in
any enactment other than the Act. Both the provisions were
challenged on the ground of excessive delegation of legislative power.
The Supreme Court held section 6 valid on the ground that it was
not a delegation of power to repeal or abrogate any existing law but
to bypass the same where the provisions thereof were inconsistent
with the Essential Supplies (Temporary Powers) Act. The court
further said that the legislative policy was laid down in the Act and
therefore, there was no question of excessive delegation. It sought to
bypass difficulty. In this way very broad delegation was given judicial
sanction.
In Edward Mills, v. State of Ajmer98 the Schedule to the Minimum

Wages Act, 1948, contained a list of industries to which the Act was
made applicable by Parliament.
However, appropriate Government was empowered to add any other industry

in the said schedule. The question of application of the provisions of the Act
to any industry was left open to the opinion of the government. Though no
norms were laid down for the exercise of such discretion, Supreme Court
held the Act valid. According to the Court, the legislative policy was
enunciated in the Act, namely, to fix minimum wages to avoid the chance of
97 AIR 1954 SC 465.

98 AIR 1955 SC 25.
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exploitation of the labour. But, the test for selecting industries to be included
in the Schedule, which the court propounded, was nowhere mentioned in the
Act, but was formulated by the court itself to uphold the Act.99
In Hamdard Dawakhana v. Union India,100 facts were that

Parliament passed the Drugs and Magic Remedies (Objectionable
Advertisement) Act, 1954 to control the advertisement of certain
drugs. Section 3 laid down a list of diseases for which advertisement
was prohibited and authorised the Central Government to include in
other diseases in the list. The court held section 3 bad as nowhere
had the legislature laid down any policy for guidance of the
Government in the matter of selection of diseases for being included
in the list. After the Delhi Laws Act Case, this is the first case in
which a Central Act was held ultra vires on the ground of
excessive"delegation.
It is submitted that the view taken in this case is not in line with the
approach of the Court because the legislative policy had been laid down in
the preamble and title of the Act moreover, the clear mention of certain
diseases in the list could have furnished the standard and criteria for the
selection of other diseases. Such a provision is held void in a ' number of
cases.101 Recently the Supreme Court has observed in a case that it is not
necessary that the legislature should dot all i's and cross all the t's of its
policy.102
However, in Gwalior Rayon Silk Mfg. Co. v. Asstt. Commissioner,103

the minority judgment differred with the policy and guidelines theory.
According to Justice K.K. Mathew, this effort on the part of Supreme Court
to somehow find the legislative policy from somewhere was undignified for
any judicial process. He said that the hunt by Court for legislative policy or
guidance in the crevices of a statute or nook and cranny of its preamble is
not an edifying spectacle.
99 M.P. Jain, Indian Constitutional Law, 1987 p. 78.

100 AIR 1960 SC 554.
101 Edward Mills v. Stale of Punjab, AIR 1955 SC 25 ; Banarasi Das v. State of M.P., AIR
1958 SC 909; Babu Ramv. State of Punjab, AIR 1979 SC 1475, Brij Sunder v. First
Add. Dist. Judge, AIR 1989 SC 572.
102 Per Ranganathan, J. in Ramesh Birch v. Union of India, AIR 1990 SC 560.
103 AIR 1974 SC 1660.
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In his concurring judgment Mathew, J. (for himself and Ray C.J.)
propounded a new test to determine the validity of delegated legislation. In
his opinion, so long as a legislature can repeal the enabling Act delegating
law making power, it does not abdicate its legislative function and therefore
the delegation must be considered as valid no matter howsoever broad and
general the delegation may be. Relying upon the decisions in Queen v.
Burah104 and Cobb v. Kropp105 Mathew, J. observed that a legislature
cannot be said to abdicate its legislative function if it could at any time
repeal the legislation and withdraw the authority it had vested in the
delegate.
However, the majority led by Justice Khanna did not agree to this
abdication test and relied on the already well established test of policy and
guidelines. Khanna, J. (for himself, Alagiriswami and Bhagwati, JJ)
reiterated that legislature must lay down a policy, principle or standard for
the guidance of delegate. The rule against excessive delegation of legislative
authority flows from the sovereignty of people. The rule contemplates that it
is not permissible to substitute, in the matter of legislative policy, the view of
individual officers or other authorities, however competent they may be, for
that of the popular will as expressed by the representatives of the people.
The view of Mathew, J. would have meant dilution of the doctrine of

excessive delegation. The dangers inherent in such an approach were
pinpointed by the majority m this way : If the Parliament were to enact that
as the crime situation in the country has deteriorated, criminal law to be
enforced in the country would be such as is framed by an officer mentioned
in the enactment, can it be said that there has been no excessive delegation
of legislative power ? To say that if the Parliament does not approve the law
made by the officer concerned, it can repeal the same or Parent Act is no
answer. The reason is that after delegating the power Parliament cannot, in a
practical sense, control it through its power of repeal. Nowadays Parliament
is too much under the control of the Executive whose leadership is accepted
104 (1878) 3 AC 889.

105 (1967) AC 141.
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by the Parliament. Every law is passed by the Parliament on the initiative of
the Executive. It is highly improbable that the Executive would ever ask
Parliament to repeal an enactment delegating legislative power to itself
because it has misused that power.
Nevertheless without referring to the majority in Gwalior Rayon106

Justice Mathew, applied his own test in N. K. Papiah v. Excise
Commissioned107 and validated a very broad delegation of legislative power.
Mathew, J. speaking for an unanimous Court of 3 Judges108 observed that
since the legislature retains the power to repeal the provision delegating the
power, there was no abdication of legislative power. Welcoming this
departure, Seervi109 has observed that the unanimous judgment in Papiahs
shows that after 25 years of wandering in the legal maize of its own creation,
the Supreme Court of India, like the Supreme Court of the United States has
come round to the view expressed by the Privy Council in 1878.
(b) Justification of Legislative policy

In the face of Gwalior Rayon (5 Judges Bench decision), the authority
of Papiah ruling (3 Judges Bench decision) remains doubtful. It is submitted
that the majority opinion given by Khanna, J. in Gwalior Rayon lays down
correct law on the point. His Lordship observed, we are also unable to
subscribe to the view that if the Legislature can repeal an enactment, as it
normally can,,-it retains enough control over the authority making
subordinate legislation and, as such, it is not necessary for the legislature to
lay down legislative policy, standard or guidelines in the statute.110 111
It is interesting to find that once again in Kerala State Electricity

Board v. Indian Aluminum Company68 the Constitution Bench again
approved and confirmed the view taken by the majority in Gwalior
Rayon,112 however, without referring to Papiah.113 The relevant point is
106 AIR 1974 SC 1660.

107 AIR 1975 SC 1007.
108 Mathew, Krishna Iyer and Goswami JJ.
109 Constitutional Law of India, 1976 Vol. II pp. 1204-05.
110 Gwalior Rayon case, AIR 1974 SC 1660.
111 AIR 1976 SC 1031.
112 Gwalior Rayon Case, AIR 1974 SC 1660.
113 AIR 1975 SC 1007.
Page | 64
that Goswami; J. was one of the Judges in Papiah as well as in Kerala State
Electricity Board. In these circumstances it can be said that in view of Kerala
State Electricity Board, Papiah is impliedly overruled or no longer survives.
However, even thereafter, in Kunjabmu114 also, all the judgments were

not considered by the Supreme Court and the issue was left open as the
point was not decided finally. The Court observed,-;
We do not wish in this case, to search for the precise principles decided
in the Delhi Laws Act case, nor to consider whether N. K. Papiah v. Excise
Commissioner115 beats the final retreat from the earlier position. For the
purpose? of this case we are content to accept the policy and guidelines
theory.116 In view of these pronouncements, the doctrine of excessive
delegation must be regarded well established in India. Accordingly, it is
necessary that while delegating legislative power, the legislature should lay
down legislative policy, standards or guidelines for the delegate to follow. In
Kujabmu117 the Supreme Court has stated doctrine of excessive delegation in
the following words :
The legislature cannot delegate its essential legislative function.

Legislate it must by laying down policy and principle and delegate it may to
fill in detail and carry out policy.118 the Court held that the power to
legislate carries with it the power to delegate, but excessive delegation may
amount to abdication and delegation unlimited may invite despotism
uninhibited.119 120
- In a recent case, Parasuraman v. State of Tamil Nadu reiterating

these principles and following the ratio laid down in earlier
decisions, the Supreme Court held in Tamil Nadu Private
Educational Institutions (Regulations) Act, 1966 ultra vires. The
114 Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350

115 AIR 1975 SC 1007.
116 Ibid, per Reddy, J.
117 Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350
118 Ibid.
119 Ibid.
120 AIR 1990 SC 40, See also Brij Sunder v. First Addl. Dist. Judge, AIR 1989 SC 572.
Page | 65
Supreme Court observed :
It is well established that determination of legislative policy and

formulation of rule of conduct are essential legislative functions which
cannot be delegated. What is permissible is to leave to the delegated
authority the task of implementing the object of the Act after the legislature
lays adequate guidelines for the exercise of power.121
- In Quarry Owners Association v. State of Bihar122 the Apex Court

has held that when policy is laid down in the legislation delegating
power to the government it cannot be said to be arbitrary or
excessive. The Court further added that accountability of the State
Government to the state legislature is additional check against
arbitrary exercise of power.
Therefore the principle of excessive delegation remains. Delegation of

legislative power cannot go beyond permissible limits e.g., essential
legislative function, determination of legislative policy, and formulation of
rule of conduct.
II. CLASSIFICATION OF DELEGATED LEGISLATION

There are several ways for classifying delegated legislation
I. Title based classification

Parliament does not follow any particular policy in choosing the forms of
delegated legislation. It is therefore, that delegated legislation appears in
several forms viz., rules, regulations, orders, notification, bye-law, scheme
and direction.
The Committee on Minister's Powers recommended for the simplification

of nomenclature. It suggested for confining the term rule- to the statutory
121 Ibid; See also Jackson, R.M. Judicial Review of Legislative Policy, (1955) 18 Mad. L.
Rev. 571
122 AIR 2000 SC 2870.
Page | 66
instrument regulating procedure, the term regulation to describe the
substantive administrative rule- making and the term order to be confined
to instruments exercising executive and quasi- judicial decisions.
II. Nature based classification

Delegated legislation may also be classified on basis of the nature and
extent of delegation of legislative power. According to the Committee on
Ministers* powers, there are two types of parliamentary delegation :
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.
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.
2. Exceptional Delegation.
Exceptional delegation is also known as Henry VIII clause. Instances of
exceptional delegation may be as follows :
A. Power to legislate on matters of principle.

B. Power to amend Acts of Parliament.
C. Power giving such a wide discretion that it is almost impossible to know the
limits.
D. Power to make rules which cannot be challenged in a court of law.
III. IMPERMISSIBLE DELEGATION

There is no specific bar in our Constitution against the delegation of
legislative power by the legislature to the Executive. However, it is now well
settled that essential legislative functions cannot be delegated by the
legislature to the executive.123 It means that the legislative policy must be
laid down by the legislature itself and by entrusting this power to the
123 Delhi Laws Act, 1912, Re, AIR 1951 SC 332; Hamdard DawakhanaM. Union of India,
AIR 1960 SC 554; Brij Sunder v. First Add/. District Judge, AIR 1939 SC 572,
Ramesh Birch v. Union of India, AIR 1990 SC 560.
Page | 67
executive, the legislature cannot create a parallel legislature. Delegation of
legislative power cannot amount to abdication of essential legislative
functions.
FORMS OF DELEGATION
There are various forms of delegated legislation. The reason for this is
that there is no uniform pattern of delegation in the delegating legislations.
Although there are various forms of delegation, the parameter for
determining the question of validity is the same, that is, the legislature must
lay down the policy of the Act. It is therefore that the doctrine of excessive
delegation has been invoked in a large number of cases to determine the
validity of provisions delegating legislative power. Some of these cases are
discussed here to illustrate the working of the principle. The cases have been
classified from the point of view of the nature of the power conferred under
following broad categories :
(a) Amplification of policy.

(b) Modification.
(c) Removal of difficulties.
(d) Inclusion and Exclusion.
(e) Taxation.
These categories are not mutually exclusive as they are governed by the
same over all consideration of the principle of excessive delegation. The
truth, however, remains that due to the compulsions of modern
administration, the Courts have allowed extensive delegations of legislative
power specially in the area of taxation and welfare legislation.
This point will be clear from the following discussion of the cases in
which the validity of delegated legislation has been challenged on the ground
of excessive delegation.
I. Amplification of policy
It is trite to say that to some extent, delegated legislation involves
abandonment of its function by the legislature and enhancement of powers
of administration. Many a time, the legislature passes Acts in skeleton" form
Page | 68
containing only the barest of general principles and leaves to the executive
the task of not only filling in details but even that of amplifying policies.
The legislature often uses broad-worded provisions, giving wide powers to the
delegate to make such rules as appear to it to be necessary or expedient
for carrying out the purposes of the Act without laying down any standards
to guide the discretion of the delegate and the delegate is in substance given
blank cheque to do whatever it likes in the delegated area of authority. In
reality, under the skeleton type of legislation, the flesh and bloodnot to
mention the soulof the scheme of legislative regulation are left entirely to
administrative discretion. The viresthe limitsof the authority delegated
have become so broad as to cover almost all administrative rule- making
within the particular area of legislation.
A good example of amplification of policy is Section 3 of the Essential

Supplies (Temporary Powers) Act, 1946. Section 3 of the Act reads as
follows:-
The Central Government, so far as it appears to it to be necessary or

expedient for maintaining or increasing supplies of any essential commodity,
or for securing the equitable distribution and availability at fair prices, may
by notified order provide for regulating or prohibiting the production, supply
and distribution thereof and trade and commerce therein.
The validity of Section 3 was challenged on the ground of excessive

delegation. Under this provision the executive was authorised to promulgate
delegated legislation not only to fill in details in the statute but even to
decide question of policy. However, in Hari Shankar Bagla v. State of
Madhya Pradesh124, the Supreme Court upheld the delegation on the
ground that the legislature has laid down the essential principles or policy of
the law, namely, maintenance or increase of supply of essential
commodities and securing equitable distribution and availability at fair
prices. Delivering the judgment, Mahajan, C.J., observed :
The preamble and the body of sections sufficiently formulate the

legislative policy and the ambit and the character of the Act is such that the
details of that policy can only be worked out by delegating them to a certain
124 AIR 1954 SC 465.

Page | 69
authority within the framework of that policy.125
In Bagla case126 the validity of Section 6 of the Essential Supplies

(Temporary Powers) Act was also challenged on the ground of excessive
delegation of power to the Executive. Section 6 declares that an order made
under section 3 shall have effect notwithstanding anything contained in any
Act or instrument other than this Act. It was contended before the Court that
the power would have the effect to repeal by implication any existing law
and, therefore such a wide power could not be delegated on the authority of
the Reference case. Rejecting the contention the Court held that Section 6
does not either expressly or impliedly repeal any of the provisions of the pre-
existing law. The purpose is simply to bypass them where they are
inconsistent with the provision of the Essential Supplies (Temporary Powers)
Act and orders made under it. The Court pointed out that even if it be
conceded, for the sake of argument, that an existing law stood repealed by
the extents of its repugnancy with the order made under Section 3, by
implication, then the repeal is not by an act of the delegate but it is by the
legislative act of the Parliament itself because it is Parliament which has
declared in Section 6 that an order made under section 3 shall have effect
notwithstanding any inconsistency in this order with any enactment other
than this Act." In this way, judicial sanction was given to a very broad
delegation of power.
Similar is the case of A. V. Nachane v. Union of India127 in which the

Supreme Court upheld a statutory provision in the Life Insurance
Corporation Act, 1956 where it was provided that the rules made under the
Act shall have effect notwithstanding anything in the Industrial Disputes Act
or any other law.
However, there are a large number of other cases depicting the same
type of judicial approach. In Bhatnagar & Co. v. Union of india128 129 was
involved the validity of section 3 (1)
125 Ibid.
126 Ibid.
1271982 AIR 1126
128 AIR 1982 SC 1126.
129 AIR 1957 SC 478.
Page | 70
(a) of the Imports and Exports Control Act, 1947 which conferred wide
powers on the Government to revoke import or export licence. The facts in
this case were that the licence to import soda was revoked on the ground of
trafficking in it. The statute is skeletal and gives no indication as to what
considerations and policies are to be taken in view by the Government in
revoking import licence. The Supreme Court held the delegation valid
because it found the ghost of policy in the preceding statute, the Defence of
India Act, 1939, the provisions of which the impugned Act purported to
continue. For the control of import and export, the policies are developed in
the area by the executive from time to time and for this purpose the Act in
question gives no guidelines. Thus broad powers are left in this area to the
executive.
In Makhan Singh v. State of Punjatb130 the validity of section 3 of the

Defence of India Act, 1962 was challenged on the ground of excessive
delegation. Under this Section the Central Government was empowered to
make rules, as it appears expedient to it for the Defence of India and
maintenance of public order and safety. The Supreme Court upheld the
delegation.
In D. S. Garewal v. State of Punjab,131 the All India Services Act, 1951

is a skeleton statute of 4 sections. Section 3 of the Act authorised Central
Government to make rules for regulation of conditions of service in All India
Services. In exercise of this power, the government framed All India Services
Discipline and Appeal Rules. The Court held the delegation valid and found
the policy of the Act for guidance of administrative rule-making in the
existing rules on the subject.132
In a sense, all skeleton legislation involves amplification of policy. When

delegation is so broad, however, that the legislative mandate is mere skeleton
what are left to delegated legislation are not really only the mere details but
most of the essential matters of policy as well.
130 AIR 1964 SC 387.

131 AIR 1959 SC 312.
132 A few other cases relating to amplification of policy are : Izhar Ahmad v. Union of
India, AIR 1962 SC 1052; Vasanlal Maganbhai v. State of Bombay, AIR 1961 SC 4;
Reghubar Dayal v. Union of India, AIR 1962 SC 263; and State of Nagaland v. Ratan
Singh, AIR 1967 S.C. 212.
Page | 71
II. Modification
Sometimes, a provision is made in the statute conferring power on the
executive to modify the existing statute itself. This is really a drastic power
as it amounts to amendment of the Act which is legislative Act. In this way it
makes the executive supreme even over the legislature. But sometimes such
power is necessary for flexibility of approach to meet the changing
circumstances. In Indian legislative practice the power to modify statutes has
mostly been delegated as sequel to the power ot extension and application of
laws. Thus, under the powers conferred by the Delhi Laws Act, 1912 the
Central Government extended the application of the Bombay Agricultural
Debtors Relief Act, 1947 to Delhi. The Bombay Act was limited in application
to the agriculturists whose annual income was less then Rs. 500 but that
limitation was removed by the Government.
Power of modification has-also been given to administrative authorities

in cases which may be characterised as legislation by reference.133 This is a
device by which the power to modify is delegated to make the adopted statute
fit into the adoptive statute.
For example, section 21 of Excess Profits Act, 1940 provides that the
provisions of the section of Income Tax Act, 1922 mentioned therein shall
apply with such modifications as may be made by rules.
- Varieties of Modification.In Hari Shanker Bagla v. State of

Madhya Pradesh134 The provision was considered and held valid,
which laid down that the delegated legislation made under the
enactment would be operative although inconsistent with some
other enactment.
In Banarsi Das v. State of Madhya Pradesh,135 the provision which

empowered the delegate to bring in certain sale transactions under the
purview of Sales-Tax Act was upheld against the challenge of excessive
delegation.
133 Allen, Law in.the making p. 51 (7th Ed.); Law and Orders, p. 172 (3rd Ed.)
134 Text, supra.
135 AIR 1956 SC 909.
Page | 72
In Delhi Laws Act case136 it was held that power may be conferred on
the executive to extend an enactment already in force in one area to other
areas with modification as the executive considers fit. But the power to
modify the underlying policy of Act is an essential legislative function and
therefore delegation of power to modify an Act without any limitation is not
valid. In Rai Narain Singh v. Chairman, Patna Administration
Committee,137 the government picked a section out of an Act, modified it
and applied it to another area. The Court held that the extension of only one
section amounted to change in the legislative policy underlying the Act and
hence it was invalid.
In Lachmi Narain v. Union of India138 the Court has observed that

the power to make restrictions and modifications in the enactment sought
to be extended is not a separate and independent power but is an integral
constituent of the power of extension. This power exhausts itself once the
enactment is extended, then the power of modification cannot be exercised
again.
The nature and extent of modification has been clarified by the

Supreme Court in N.C.J. Mills Co. v. Asstt. Collector, Central Excises.139
In this case the Court said that the power to modify does not import the
power to make essential changes and that it is confined to alterations of a
minor character and no change in principle is involved. In this way, if the
changes are not essential in character, the delegation is permissible. In Sri
Ram v. State of Bombay140, power was given to the government to vary the
ceiling area if it was satisfied that it was expedient to do so in public interest.
The Court upheld such a broad statement of policy as public interest
sufficient to uphold the vires of delegation.
III. Removal of difficulties(Henry VIII clause)

Sometimes, power is conferred on the government to modify the existing
statute for the purpose of removing difficulties so that it may be brought into
136 Text, supra.

137 Text, supra.
138 AIR 1976 SC 714.
139 AIR 1971 SC 454.
140 AIR 1959 SC 459.
Page | 73
full operation. When the legislature passes an Act, it cannot foresee all the
difficulties. Which may arise in implementing it. Legislature, therefore,
introduces in the statute a removal of difficulty clause envisaging that
government may remove any difficulty that may arise in putting the law into
operation.
Generally two types of removal of difficulties clauses are found

in the Indian statutes.
1. One, a narrow one which empowers the executive to exercise the

power to remove difficulties consistent with the provisions of the enabling
Act. In such a case, the Government cannot change any provisions of the
statute itself; e.g., Section 128 of the States Re-organisation Act, 1956 lays
down as under:
If any difficulty arises in giving effect to the provisions of this Act, the
President may by order do anything not inconsistent with such provisions
which appears to him to be necessary or expedient for the purpose of
removing difficulty.
If the statute provides so, it is not objectionable. According to

Committee on Ministers Powers141 the sole purpose of Parliament in
enacting such a provision is to enable minor adjustments of its own
handiworks to be made for the purpose of fitting its principles into the fabric
of existing legislation, general or local. Sir Cecil Carrs142 view is that the
device is draftsmans insurance policy in case he has overlooked something.
In exercise of such powers the government cannot modify the Parent Act nor
can make any modification which is not consistent with the parent Act.143
2. The other type of removal of difficulties clause is very broad and

empowers the executive in the guise of removal of difficulties to modify even
Parent Act or any other Act. A classic illustration of such clause is found in
the Constitution, itself which under Article 392 (1) authorised the President
to direct by order that the Constitution would, during such period, as might
141 The Committee on Ministers Powers Report, 1932 p. 36.

142 Concerning English Administrative Law, 1941 p. 44.
143 Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691; Sinai v. Union of India,
AIR 1975 SC 797
Page | 74
be specified have effect subject to such adaptations, whether by way of
modification, addition or omission, as he might deem to be necessary or
expedient. This is nicknamed as Henry VIII Clause incorporated in the
Constitution of India. Similarly, Article 372 of the Constitution conferred
power of making adaptations and modifications in the existing law to bring it
in accord with the Indian Constitution. However, it may be noted that such a
provision is usually for a limited period.
1. Henry VIII Clause.This type of delegating clause has acquired the

nickname of Henry VIII Clause as personifying "executive autocracy.
Henry VIII was the King of England in the 16th Century. During his
regime he enforced his will by-using instrumentality of Parliament for
the purpose of removing difficulties which came in his way. The origin
of removal of difficulties clause is thus linked with the name of Henry
VIII.
According to the Committee on Ministers Powers, the King is regarded
popularly as impersonation of executive autocracy and such a clause cannot
but be regarded as inconsistent with the principle of Parliamentary
Government.144
2. Legality of the removal of difficulties clause.

In Jalan Trading Co. v. Mill Mazdoor Sabha,145 the Supreme Court
was called upon to consider the legality of such clause. Section 37 (1) of the
Payment of Bonus Act, 1965 empowered the Central Government to make
such provisions, not inconsistent with the purposes of the Act, as might be
necessary or expedient for the removal of any doubts or ^difficulties in
implementing the Bonus Act. Section 37 (2) made the order of the Central
Government issued under sub-clause (1) final. By a majority of the Court
held section 37 bad on the ground of excessive delegation inasmuch as the
government was made sole Judge whether any difficulty or doubt had arisen
in implementing the Act, whether it was necessary or expedient to remove
such doubt or difficulty and whether the order made was consistent with the
provisions of the Act. Further the order passed by the government was made
final. In this way essential legislative power was delegated to the executive
144 Report. 1932, p. 61.

145 AIR 1967 SC 691.
Page | 75
which was not permissible.146
Generally, the Supreme Court takes a liberal view of the "removal of

difficulties clause. In Gammon India Ltd. v. Union of India,147 Section 34
of the Contract Labour (Regulation and Abolition Act, 1970 provided that if
any difficulty arises in implementing the provisions of the Act, the Central
Government may make such provisions, not inconsistent with the provisions
of the Act as appeared to it to be necessary or expedient for removing
difficulty. Supreme Court held that section 34 is valid as it does not amount
to excessive delegation. It simply authorises the Government for remove! of
difficulties which might arise in giving effect to the law.
3. Hire and Fire rule.

In West Bengal State Electricity Board v. Desh Bandhu Ghosh,'148
Regulation 34 of West Bengal State Electricity Regulations was challenged on
the ground that it was arbitrary and violative of Article 14 of the
Constitution. Under Regulation 34, it was provided:
"In case of a permanent employee, his services nfiay be terminated by

serving three months notice or on payment of salary for the corresponding
period in lieu thereof. Declaring the said Regulation as arbitrary and ultra
vires, the Supreme Court said, "on the face of it, the regulation Is totally
arbitrary and confers on the Board a power which is capable of vicious
discrimination. It is a naked hire and fire' rule, the time for banishing which
altogether from employer-employee relationship is fast approaching. Its only
parallel is to be found in the Henry VIII Clause so familiar to administrative
lawyers.
Similar is the case of Central Inland Water Transport Corporation v.

Brojo Nath Ganguly.149 In this case Rule 9 (i) of the Central Inland Water
Transport Corpn. Ltd. (Service, Discipline and Appeal) Rules, 1979 was
challenged, which provides : (i) the Employment of a permanent employee
shall be subject to termination on three months notice on either side. The
146 Ibid, p. 703.

147 AIR 1974 SC 960
148 AIR 1985 SC 722.
149 AIR 1986 SC 1571
Page | 76
notice shall be in writing on either side. The company may pay the
equivalent of three months basic, pay and dearness allowance, if any, in lieu
of notice or may deduct a like amount when the employee has failed to give
due notice.
Declaring the provision as ultra vires, arbitrary and unreasonable, the

Supreme Court said:
No apter description of Rule 9 (1) can be given than to call it the Henry
VIII Clause. It confers absolute and arbitrary power upon the corporation. It
does not even state who on behalf of the corporation is to exercise that
power.........There are no guidelines whatever laid down to indicate in what
circumstances the power given by Rule 9 (i) is to be exercised by the
corporation. No opportunity whatever of a hearing is at all to be afforded to
the permanent employee whose service is being terminated in exercise of this
power.
It is submitted that the Court, in these circumstances rightly described

rule 9 (i) as the Henry VIII Clause.
4. Extent of the Removal of Difficulties Clause.

In Sinai v. Union of India,150 Sarkaria J. has observed that by using a
removal of difficulties clause the Government, may slightly tinker with the
Act to round off angularities and smoothen the joints or remove minor
obscurities to make it workable but it cannot change features of the Act. In
no case-can it, under the guise of removing a difficulty, change the scheme
and essentials provisions of the Act."151
The Committee on Ministers Powers has also given a clarion call that it
would be dangerous in practice to permit the executive to change an Act of
Parliament. It made the following recommendations:152
The use of so-called Henry VIII clause conferring power on a Minister to

modify the provisions of Acts of Parliament should be abandoned in all but
most exceptional cases and should not be permitted by Parliament except
upon special grounds stated in a ministerial memorandum to the bill. Henry
150 AIR 1975 SC 797.

151 Ibid.
152 Cited by Mahajar J., In Delhi Laws Act Case, AIR 1951 SC 332 (372).
Page | 77
VIII clause should never be used except for sole purpose of bringing the Act
into operation but subject to the limit of one year.
It is submitted that in India, the removal of difficulties clause cannot

violate the doctrine of excessive delegation as laid down in the Delhi Laws
Act case. Accordingly it cannot go beyond the permissible limits of delegation
of legislative power.
IV. Inclusion and Exclusion

As a matter of common practice, legislature passes law to confer power
on the government to bring individuals, bodies or commodities within, or to
exempt them from, the purview of a statute. In this way, the range of
operation of a statute can be expanded or reduced through the device of
(i) Range of inclusion

Sometimes, the legislature after passing the statute makes it applicable,
in the first instance to some areas and class of persons, but empowers the
government to extend the provisions thereof to different territories, persons,
bodies or commodities. The Minimum Wages Act, 1948 has been passed, as
mentioned in the preamble, to provide for fixing minimum wages in certain
employment. The Act applies to the employments listed in the schedule, but
the government is empowered to add any other employment thereto and thus
to extend the operation of the Act to that employment. The legislature has
not laid down any norms on which the government may exercise its power to
add any employment to the schedule. Even then, in Edward Mills Co. v.
State of Ajmer153, the Supreme Court held that the provision was valid as
the policy was apparent on the face of the Act which was to fix Minimum
Wages in order to avoid exploitation of labour in those industries wages were
very low because of unorganised labour or other causes.
In a number of cases,154 the power to add to the schedule has been

upheld. The Punjab General Sales Tax Act, 1948 levied a Purchase Tax on
153 AIR 1955 SC 25.

154 Banarsi Das v. State of Madhya Pradesh, AIR 1958 SC 909; Sable Waghire & Co. v.
Union of India AIR 1975 SC 1172.
Page | 78
goods except the items mentioned in the schedule annexed. This meant that
if the government added an item to the schedule it became tax exempt. In
Babu Ram v. State of Punjab155 the Supreme Court upheld the provision
against challenge on the basis of excessive delegation.
A statute may empower the executive to expand the range of its

operation through methods other than amending schedule. For instance, the
Essential Commodities Act, 1955 covers certain specified commodities
mentioned in the Act and further gives power to the Central Government to
declare any other commodity as essential commodity and thus making the
Act applicable to it as well. In Mohamed Ali v. Union of India156 the
Supreme Court upheld a provision of Employees Provident Funds Act, 1952
empowering the Central Government to bring within the purview of the Act
such establishments as it might specify.
But where the Court does not find any policy for guidance in the statute
the provision is held invalid. Thus, in Hamdard Dawakhana v. Union of
India,157 section 3 of the Drugs and Magic Remedies (Objectionable
Advertisement) Act, 1954 was challenged. This provision prohibited an
advertisement suggesting that a medicine could be used for curug any
veneral disease or any other disease specified in the rules. The Court held
that no standards or principles had been laid down in this Act for specifying
any other disease in the rules and hence the power delegated to make rules
was invalid.
(ii) Range of exclusion.

There are certain statutes which give power to the government to exempt
from their operation any persons, institutions or commodities. Such a
provision is invariably upheld. For instance, in Jalan Trading Co. v. Mill
Mazdoor Union,158 the Supreme Court held the provision valid, which
authorised the Central Government to exempt any establishment from the
range of the operation of the Act having regard to the financial position and
relevant factors.
155 AIR 1979 SC 1475.

156 AIR 1964 SC 980
157 AIR 1960 SC 554
158 AIR 1967 SC 691.
Page | 79
In Registrar Co-operative Societies v. K. Kunjabmu159 the Court
upheld the validity of section 60 of the Madras Co-operative Societies Act,
1932 which was a near Henry VIII clause.160 Section 60 provides as follows :
The State Government may by general or special order, exempt any

registered society from any of the provisions of this Act or may direct that
such provisions shall apply to such society with such modifications as may
be prescribed in the order.
Such a broad clause was held valid as the Court found the policy of the
Act stated in the preamble, viz., to facilitate the formation and working of co-
operative societies.
V. Taxation
Taxing power is an inherent power of any State. In a democratic system,
taxation is exclusively the function of legislature. The fundamental canon of
democracy is no taxation without representation. Taxation is, therefore, a
strong weapon in the hand of legislatures to control the executive. However,
delegation has permeated even the tax area. When legislature passes the
statute to levy a tax, it leaves some elements of taxing power to the executive.
The doctrine of excessive delegation is applied by the Court to determine the
validity of the delegation of taxing power. The permissible limits of a valid
delegation of taxing power can be comprehended by analysing the individual
cases decided by the Supreme Court.
Power may be delegated to government to exempt an item from the

purview of tax. In Orient Weaving Mills v. Union of India,161 a provision
authorising the Central Government to exempt any excisable goods from
duty was held valid against the plea of excessive delegation.
Power may be given to the Central Government to bring additional

transactions within the purview of a tax. In Banarsi Das v. State of
Madhya Pradesh,162 delegation of power to the government to bring any
goods within the purview of Sales-tax Law was upheld.
159 AIR 1980 SC 350.

160 Per Chinnappa Raddy, J
161 AIR 1963 SC 89.
162 AIR 1958 SC 909.
Page | 80
Power to fix the rates to tax may be delegated to the executive. In Devi
Das v. State of Punjab,163 the provision delegating power to the executive to
determine the rate of tax oetween the minimum and maximum, viz., between
1% to 2% was held valid. The Court stated that it was all right to confer a
reasonable area of discretion on the government by a fiscal statute.
In Sita Ram Bishambhar Dayal v. State of Uttar Pradesh,164 the

delegation of power to impose sale-tax not exceeding 5% was held valid by
the Supreme Court as the rate prescribed was a reasonable upper limit.
Similar is the case of V. Nagappa v. Iron Ore Mines Cess Commissioner.165
In this case a Central Act empowered the Central Government to levy a cess
upto 50 paise per metric ton on iron and spend the money so collected on
labour welfare. The delegation was held valid as the policy of the Act was so
clearly stated.
In Gwalior Rayon Siik Mfg. Co. v. Asstt. Commissioner,166 under

section 8 (2) (b) of the Central Sales Tax Act, 1956, the Parliament did not fix
the rate of Central Sales Tax but adopted the rate applicable to the sale or
purchase of goods within the appropriate state in case such rate exceeds 10
per cent. The validity of the said section was challenged on the ground of
excessive delegation because the Parliament in not fixing the rate itself and
in adopting the rate applicable within the appropriate state has not laid
down any policy under the Act and has, thus, abdicated its legislative
function.
The validity of the provision in question was upheld by the Supreme

Court, holding sufficient guidelines were laid down in the Act by the
Parliament.
In N.K. Papiah v. Excise Commissioner,167 a provision authorising

levy of excise duty at such rate as the government may prescribe was held
valid, although neither any policy was laid down for guidance, nor any
maximum rate was prescribed. For the reasons already given earlier, Papiah
163 AIR 1067 SC 1896.

164 (1972) 29 STC 206 (SC).
165 AIR 1973 SC 1374.
166 AIR 1974 SC 1660.
167 AIR 1975 SC 1007.
Page | 81
cannot be regarded as good law.
A difficult case is Shama Rao v. Union Territory of Pondicherry.168 In

this case Pondicherry legislature passed the Pondicherry General Sales Tax
Act, 1965 and adopted the Madras Sales Tax Act, 1959, as in force in the
State of Madras immediately before the commencement of the Act and the
Government was authorised to issue notification of the commencement of
the Act in Pondicherry. The result was that all the amendments to the
Madras Act during the period of enactment and commencement of
Pondicherry Act automatically became applicable to the Union Territory of
Pondicherry. The Supreme Court held that this amounted to abdication of its
power by the Pondicherry Legislature in favour of Madras Legislature and
therefore Pondicherry Act was void and still born.
A liberal judicial approach in the matter of delegation of legislative power

is found in respect of municipal bodies. This point is being considered in the
following pages.
(I) Delegation in favour of municipalities and other taxing bodies.

In view of the circumstances that the affairs of such bodies are
administered by the elected representatives responsible to the people, broad
delegations in their favour have been upheld in order to strengthen the
institution of local self government. Thus, in Bangalore W.C. Mills v.
Bangalore Corporation169 a provision authorising a Municipal Corporation
to levy octroi duty on commodities other than those mentioned in the Act
was held valid.
Similarly in Delhi Municipal Corporation v. Birla Cotton Spinning &

Wvg. Mills,170 the power delegated to the Corporation to levy Electricity-tax
without any limit was upheld valid on the ground of its representative
character.
In the same way in Corporation of Calcutta v. Liberty Cinema171 the

validity of the delegation of power to the Corporation to levy a licence fee on
168 AIR 1967 SC 1480.

169 AIR 1962 SC 1263.
170 AIR 1968 SC 1232.
171 AIR 1965 SC 1107.
Page | 82
cinema at such rate as may be resolved by the Corporation was upheld.
Legislature may confer on municipal bodies a general power to levy whatever
taxes the legislature itself could levy. This is a very broad delegation of power
and on general principles such delegation should be invalid on the ground of
excessive delegation as the statute lays down no policy to guide the
municipalities. However, in Western India Theatres Ltd. v. Municipal
Corporation,172 the Supreme Court upheld such a provision on the ground
that only such taxes could be levied by the Corporation as were necessary for
implementing the purposes specified in the delegating statute.
Following the same principle the Supreme Court in Darshan Lai Mehra
v. Union of India173 held, Section 172 (2), U. P. Nagar Mahapalika
Adhiniyam, 1959 as constitutional. This section had authorised the
municipalities to impose taxes mentioned in the Act for the purpose of the
Act." Court declared that the words for the purpose of the Act lay down
sufficient policy for the municipalities to impose tax and therefore so long as
the tax has reasonable relation to the purpose of the Act the same cannot be
held excessive delegation.
Similarly in Mahe Beach Trading Company v. Union Territory of

Pondicherry174 the Supreme Court has laid down that if there is abdication
of legislative power or there is excessive delegation or if there is total
surrender or transfer by the legislature of its legislative functions to another
body then that is not permissible. There is, however, no abdication,
surrender of legislative functions or excessive delegation so long as the
legislature has expressed its will on a particular subject matter, indicated its
policy and left the effectuation of the policy to subordinate or subsidiary or
ancillary legislation, provided the legislature has retained the control in its
hand with reference to it so that it can act as a check or a standard and
prevent or undo the mischief by subordinate legislation when it chooses to or
thinks fit. In this case an Act passed by legislature had authorised a
municipality to levy tax on petrol and diesel oil cold at petrol pump with
retrospective effect. Its validity was challenged on ground of excessive
172 AIR 1965 SC 586.

173 (1992) 4 SCC 28.
174 (1996) 3 SCC 743
Page | 83
delegation. However, its validity was upheld by the court as there was no
excessive delegation. According to the Court whatever power was delegated,
it was for effectuation of policy laid down by the legislature.
In J. R. G. Manufacturing Association v. Union of India,175 the Court

further upheld the validity of section 12 (2) of the Rubber Act which
authorised the Rubber Board to impose an excise duty either on the
producers of rubber or the manufacturers of rubber goods. The Court
rejected the challenge of excessive delegation on the ground of representative
character of the Board and Control by Central Government. It was provided
in the Act that tax can be levied in accordance with the rules framed by the
government subject to laying before Parliament.
(ii) Imposition of Tax by the Government, on failure of municipalities to

Impose Tax.
In Avinder Singh v. State of Punjab,176 where a municipality failed to
carry out its direction to Impose Sales Tax at the rate of Rs. 10/- per bottle
of foreign liquor, the State Government imposed-tax itself for the purposes of
the municipality. The Act in question did not prescribe any minima or
maxima of the rates of tax. The statutory provisions were held valid. The
Court made no difference in principle whether the tax was directly imposed
by the municipality or the Government for the purposes of the former and
not to replenish its coffers.
All these decisions show that very wide delegations of taxing power are
permissible to the municipal bodies in view of their representative and
responsive character. It may, however, be stated that even in U.S.A. the
Courts have made an exception in favour of municipalities on the question of
validity of delegated legislation.177
CHAPTER 7
175 AIR 1970 SC 1589.

176 AIR 1979 SC 321
177 Gellhorn and Byse, Administrative Law : Cases and Comments, 128; Foster, The
Delegation of Legislative power to Administrative Officers, 7 III. L.R. 39; 398 (1913).
Page | 84
COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA
AND INDIA
I. ENGLAND
In England, Parliament is sovereign. In principle, it is only

Parliament which can enact laws. But as observed by C.K. Allen, Nothing
is more striking in the legal and social history of the 19th century in
England than the development of subordinate legislation.178 Maitland also
said:
Year by year the subordinate Government of England is becoming

more and more important. The new movement set in with the Reform Bill of
1832: it has gone far already and assuredly it will go farther. We are be-
coming a much governed nation, governed by all manner of councils and
boards and officers, central and local, high and low, exercising the powers
which have been committed to them by modern statutes.179
The reasons for growth of delegated legislation in other countries

were equally responsible for the development of delegated legislation in
England. Parliament had no time to deal with various matters in detail.
Complexity, technicality, emergency and expediency compelled Parliament
to delegate its legislative office to the government.
- Traditionally, administrative legislation was looked upon as an evil, but

gradually it came to be regarded as justifiable in principle. It was realised
that legislation and administration were not two fundamentally different
forms of power. Tests formulated to distinguish legislative and
administrative functions proved insufficient and inappropriate.180
But at the same time, administrative law had not been accepted as a
developed and recognised branch of law. Taylor, therefore, observed:
178 Law in the Making (1993) 531.

179 Cited by C.K. Allen, Constitutional History of England, 501.
180 Wade & Forsyth, Administrative Law (2009) 731. See, for distinction between
legislative and administrative functions, Lecture III.
Page | 85
Until August 1914 a sensible law abiding Englishman could pass
through life and hardly notice the existence of the State, beyond the post
office and the policeman.181
It was during the two World Wars, that there was a tremendous increase in
delegated legislation. Massive inroads were made into comparatively per-
sonal matters of citizens, e.g. housing, education, employment, pension,
health, planning, production, preservation and distribution of essential.
- I t o b s e r v e d b y A l l e n - We doubt, whether Parliament itself has

fully realised how extensive the practice of delegated legislation has
become, or the extent to which it has surrendered its own functions in
the process, or how easily the practice might be abused.182
- The Committee rightly stated:- The system of delegated legislation is

both legitimate by permissible and constitutionally desirable for certain
purposes, within certain limits, and under certain safeguards.183
(i) Absolute Delegation

In Britain, there prevails the principle of sovereignty of Parliament. This
doctrine implies that Parliament is supreme and has unlimited power to
make any law. Consequently Courts cannot question parliamentary law on
any ground. In R. v. Hallidaj 184, it has been rightly observed, The British
Constitution has entrusted to the two Houses of Parliament, subject to the
assent of the king, an absolute power untrammelled by any instrument
obedience to which may be compelled by some judicial body. Parliament
may accordingly delegate to any extent its powers of law-making to an
181 English History (1914-1945) 1; see also, Report of Committee on Ministers Powers
(1932) 3; See, for detailed discussion. commodities, social security, etc. In the 20th
century, Parliament was obliged to delegate extensive law-making power in favour of
the government. A hue and cry was raised against the growth of such delegated
legislation. The matter was, therefore, referred to the Committee on Ministers Powers
(Donoughmore Committee) in 1929. The Committee submitted its report in 1932.
182 Report of Committee on Ministers Powers (1932) 62.
183 Ibid, 51.
184 1917 AC 260.
Page | 86
outside authority. The limits of delegated legislation in the British
Constitution, if there are to be any, therefore remain a question of policy
and not a justiciable issue to be decided by the courts of law. The doctrine
of excessive delegation has no application in Britain.
(ii) Remedy in the hands of Parliament
An important point to note is that in Britain the remedy lies in

the hands of Parliament itself. Parliament can control the delegation of
power by it if it so pleases. There is no external agency to compel
Parliament to do so. It is not necessary for Parliament to lay down in a
delegating statute any standard, policy or norm for guiding the delegate in
exercising the power entrusted to him. The delegate may be left free to draft
delegated legislation in any way he likes. He can evolve his own policy or
standard in exercising delegated power.
- However, sovereignty of Parliament does not mean that there are no

principles to which the practice of delegation must conform. It has
been suggested by the Committee on Minister's Powers : The precise
limits of law-making power which Parliament intends to confer on a
Minister should always be expressly defined in clear language by the
statute which confers it : When discretion is conferred its limits should
be defined with equal clearness. The committee, it should be noted,
exp essed a principle basically similar to standard requirement.
II. U.S.A.
- Delegation in Theory
- The American rule against non-delegability of legislative power is

primarily based on the doctrine of separation of powers. The framers
of the U.S.A. Constitution were greatly dominated by the ideas of Mon-
tesquieu and Locke that concentration of powerslegislative, executive and
judicialin the hands of a single organ of the government spelt
tyranny.185 The U.S. does not expressly provide for a separation of
185 Willis, Constitutional Law (1938), 135. Washington thought that consolidation of go-
vernmental powers in one body created a 'real despotism' : Washington's Farewell Ad-
Page | 87
powers, but it is implied from the division of powers into three categories,
the legislative, executive and judicial.186 "It is considered to be an
essential principle underlying the Constitution" observed the Supreme
Court in Field v. Clarke,187 "that powers entrusted to one department
should be exercised exclusively by that department without encroaching
upon the powers of another." 188 And it was pointed out in that case:
"that Congress cannot delegate legislative power to the President is a
principle universally recognised as vital to the integrity and maintenance of
the system of government ordained by the Constitution. 189
- In American Constitution we find a different principle in operation. The

position is different in the sense that under the Constitution of U.S.A.,
delegated legislation is not recognised in theory because of two
doctrines :
(a) The doctrine of separation of powers
The U.S. Constitution is based on the doctrine of separation of powers. By

Article 1, legislative power is expressly conferred on the Congress, and
Article II states that the executive power shall be vested in a President and
under Article III, the judiciary has power to interpret the Constitution and
declare any statute unconstitutional if it does not conform to the provisions
of the Constitution. In the leading case of Field v. Clark190 the American
Supreme Court observed:
- The Congress cannot delegate legislative power to the President is a

principle universally recognised and vital to the integrity and
maintenance of the system of government ordained by the
Constitution.191
(b) Delegatus non potest delegare : A delegate cannot further delegate
dress. John Adams said that tyranny could be checked only by "balancing one of the
powers against the other two " : Works, (vol. I, p. 186).
186 Springer v. Philiphine Islands, 277 U.S. 189, 201; Youngs Town Sheet and Tube Co. v:
Sawyer, 343 U.S. 579, 589.
187 143 U.S. 649 (1892)
188 Ibid.
189 Schwartz, American Administrative Law, p. 30.
190 (1892) 143 US 649.
191 Ibid, at p. 692 (Per Harlan, J.), See also Springer v. Pnillipine Islands (1928) 277 US
189 ; Puckley v. Valeo, (1976) 424 US 1.
Page | 88
Besides the doctrine of separation of powers, the U.S. Supreme Court has
also invoked the doctrine of delegatus non potest delegare against
delegation by the Congress. The doctrine means that a delegate cannot
further delegate its powers. As the Congress gets power from the people,
and is a delegate of the people in that sense, it cannot further delegate its
legislative power to the executive or to any other agency. Legislatures stand
in this relation to the people whom they represent. Hence, it is a cardinal
principle of representative government, that legislature cannot delegate the
power to make laws to any other body or authority.192
- Delegatus non protest delegare is a fundamental principle of

delegation jurisprudence. Clarifying the scope and limit of this
principle, the Court held that the Central Government can delegate
any of its statutory power to the State Government, if permitted by law.
However, two factors would determine its validity : (i) whether sub-
delegation is authorised by statute either expressly or impliedly, (ii)
whether, excise of sub-delegation is within the scope and limit of
delegation, meaning thereby that even if statutory power to delegate
functions is expressed in wide general terms it will not necessarily
extend to everything. The Court explained that implied sub-delegation
is commonly not the characteristic found in peace time legislation.193
Applying the principle, the Court held that if a guideline for
determining inter se seniority was to be laid down, the State alone
could do so in terms of Article 162 of the Constitution.194
Delegation in practice
In theory, it was not possible for the Congress to delegate its
legislative power to the executive. However, strict adherence to the non-
delegation doctrine was not practicable. Due to increase in governmental
functions, it was impossible for the Congress to enact all the statutes with
all particular details. The Supreme Court recognised this reality and tried
to create a balance between the two conflicting forces : doctrine of
192 Locke's Appeal, (1873) p. 491 (497) cited by Schwartz : Administrative Law, 1984,
pp. 35-36.
193 S. Samuel M.D. Harrison Malayalam v. Union of India, (2004) 1 SCC 256.
194 Pramod K. Pankaj v. Stale of Bihar, (2004) 3 SCC 723,
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separation of powers barring delegation and the inevitability of delegation
due to the exigencies of the modern government.195 The most that can be
asked under the separation of powers doctrine is that the Congress lay
down the general policy and standards that animate the law, leaving the
agency to refine those standards, fill in the blanks, or apply the standards
to particular cases.196
Thus, pragmatic considerations have prevailed over theoretical

objections. With the change in time, the courts have relaxed the rigours of
the doctrine of separation of powers and permitted broad delegation of
powers provided that the Congress itself should lay down policies or
standards for the guidance of delegate. The Congress should not give a
blank cheque to the Executive to make any rules it likes. If this is done, it
would amount to an abdication of functions by the Congress. The point to
be noted is that if Congress transfers to others the essential legislative
functions with which it is vested the statute doing so will be held
unconstitutional.
The test in the words of Justice Cardozo is : to uphold the

delegation there is need to discover in terms of the Act a standard
reasonably clear whereby the discretion must be governed.197 If the statute
contains no standard to limit delegation of power, it amounts to giving a
blank cheque to make law in the delegated area of authority and, thus, the
agency rather than the Congress becomes primary legislator. The working
of this rule is illustrated with reference to a few cases.
- In Panama Refining Co. v. Ryan,198 popularly known as the Hot Oil

case, Congress authorised the President to ban oil in inter-state-
commerce when it was produced in excess of quota fixed by each state.
The policy of the Act was to encourage national industrial recovery
and to foster fair competition". The majority of the court held that the
195 Indian Law Institute : Cases and Materials on Administrative Law in India. 1966 Vol.
1 pp. 188-89.
196 Rehniquist, J. in Industrial Deptt. v. American Petroleum Institute, (1980) 448 U.S.
607 (675).
197 Panama Refining Co. v. Ryan, 293 US 338, 434 (1935).
198 Ibid.
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Congress has declared no policy, has established no standard, has laid
down no rule. Accordingly the delegation in favour of the President
was impermissible and the Act was unconstitutional.
- In Schechter Poultry Corporation v. United States199 (sick chicken

case), the Supreme Court considered the question of constitutionality
of section 3 of the National Industrial Recovery Act, 1933. The
President was authorised under it to approve Codes of Fair
competition for particular trades and industries. Its violation was
made punishable. The court held that Section 3 was unconstitutional
as no standard was laid down for approving a code for any trade or
industry. According to the court it was a case of virtual abdication of
legislative powers by the Congress.
Since Schechter Case,200 201 however, the Supreme Court had taken a
liberal view and in a number of cases delegation of legislative power has
been upheld.
Thus, in National Broadcasting Co. v. U.S.202 Federal

Communication Committee was given vast powers to license broadcasting
stations under the Communications Act, 1934. The criterion was public
interest, convenience or necessity. Although it was vague and ambiguous
the Supreme Court held it to be a valid standard. Similarly, in Yakus v.
U.S.,203 under the Emergency Price Control Act, 1942, the Price
Administrator was given authority, when, in his judgment, commodity
prices rose or threatened to rise to an extent or in a manner inconsistent
with the purpose of the Act, to establish such maximum price or prices as
in his judgment will be generally fair, equitable and will effectuate the
purposes of the Act. The court sustained the statute on the ground that
sufficiently precise standards were prescribed to confine the
Administrator's regulations and orders within fixed limits.
199 295 U.S. 495 (1935),

200 Ibid.
201 (1943) 319 U.S. 190.
202 319 U.S. 190 (1943)
203 321 US 414 (1944).
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- Cardozo J stated, This was delegation running riot.
- After the two cases mentioned above, however, the Supreme Court
took a liberal view and in many cases, upheld delegation of legislative
power.
Thus, in National Broadcasting Co. v. United States204, vast

powers were conferred upon the Federal Communication Committee (FCC)
to licence broadcasting stations under the Communications Act, 1934. The
criterion was public interest, convenience or necessity. Though it was
vague and ambiguous, the Supreme Court held it to be a valid standard.
Similarly, in Yakus v. United States205206, under the Emergency

Price Control Act, 1942, the Price Administrator was given the power to fix
such maximum price which in his judgment will be generally fair and
equitable and will effectuate the purposes of the Act. The Administrator
was required, so far as practicable, to give due consideration to the prices
prevailing between 1 October and 15 October 1941, but was allowed to
consider a later date if necessary data were not available, and yet the
Supreme Court sustained the delegation, holding that the standards were
adequate. Roberts J (minority view) rightly observed that by the majority
judgment, Sick Chicken case was overruled.
- In hitcher v. United States207, the Reorganisation Act, 1942, empow-

ered administrative officers to determine whether the prices were
excessive and to recover profits which they determined to be excessive.
The Supreme Court held the delegation valid observing that the
statutory term excessive profits was a sufficient expression of
legislative policy and standards to render it constitutional.
- Davis208 maintains that the greatest delegation was sanctioned by

the Supreme Court as the judicial language about standard was
204 319 US 190 (1943).

205 321 US 414 (1944).
206 (1935) 295 US 495: 79 L Ed 1370.
207 (1947) 334 US 742.
208 Administrative Law (1951) 45-54.
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artificial. According to him, the definition of excessive profits was
given as excessive means excessive.
- In Fahey v. Mallonee209, the relevant Act empowered the Board to is-

sue regulations prescribing terms and conditions on which
mismanaged loan associations could be taken over. The District Court
held that there was no criterion to guide the exercise of authority
conferred and the delegation was bad. The Supreme Court accepted
that there was no express legislative standard, but declared the law
valid observing that the provision was regulatory and not penal.
A discretion to make regulations to guide supervisory action in such

matters may be constitutionally permissible while it might not be allowed
to authorise creation of new crimes in unchartered fields.
- In Mistretta v. United States210 (Mistretta), sentencing guidelines

were promulgated by the US Sentencing Commission under the
Sentencing Reforms Act, 1984. The guidelines provided range to
determinate sentences for categories of offences and offenders
according to various factors specified by the Commission. Mistretta,
who was indicted for sale of cocaine, challenged the guidelines
contending that Congress delegated excessive authority to the
Commission to structure the guidelines.
The Supreme Court conceded that the contention of the

petitioner that the Commission had significant discretion in
formulating guidelines could not be disputed. It has also power to
determine which crimes should be punished leniently or severely. But
that did not mean that there was no policy. Congress while
conferring power on the Commission neither delegated legislative
power to the executive nor upset the constitutionally mandated
balance of powers among the co-ordinate branches.
209 332 US 245 (1947).

210 488 U.S. 361 (1989)
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The Constitutions structural protection does not prohibit Congress
from delegating to an expert body located within the Judicial Branch the
intricate task of formulating sentencing guidelines consistent with such
significant statutory directions.
Critics opine that Mistretta rang death knell of the doctrine of non-
delegation.
In Whiteman v. American Trucking Assn.211, the legislature delegated

legislative power to the Environmental Protection Agency (EPA) to
promulgate air quality criteria. The relevant Act also authorised EPA to
review such standard and make such revisions as may be appropriate.
The provision was challenged on the ground of excessive delegation of
legislative power to EPA without providing intelligible principle. The Court
of Appeal upheld the contention.
The Supreme Court, however, held the delegation valid observing that a
certain degree of discretion to the Agency could be allowed. Referring to
Mistretta, the court stated that to require the EPA to set quality standards
at the level that is requisite,that is not lower or higher than is
necessaryto protect the public health with an adequate margin of safety,
fits comfortably within the scope of discretion permitted by our precedent.
Scalia J. rightly commented that wholesale delegations thus became the rule
rather than, as they once were, the exception.
Conclusion - There are not many cases of the United States Supreme Court
declaring congressional legislation unconstitutional because of excessive
delegation. The exigencies of modern government have persuaded the courts
to take liberal view of delegation. In a large number of cases, very broad
delegations have been upheld and very vague phrases have been held as
laying down standards. The position is so much so that one commentator
has remarked :
211 531 U.S. 457 (2001),

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Judicial language about standards is artificial.212 But the basic premise
still remains that Congress cannot delegate legislative power without
prescribing standards. Whether this test is satisfied or not is a ma.:?r to be
determined by the Courts. Legislative prescription of standards is not final.
The courts do reserve to themselves the power to declare delegation of
legislative power unconstitutional if they feel that in a given case the
delegation is too broad and indefinite. Even though in practice the Supreme
Court of U.S.A. has upheld broad delegations under the impact of
exigencies of government in modern times, the court always reiterates the
doctrine of excessive delegation. Due to the continuance of the doctrine of
excessive delegation, the Congress does seek to lay down some standards
in the Legislation delegating legislative power.
- However, American decisions show that there has been progressive

breakdown of the non-delegation theory that legislative power cannot
be delegated. Hence Professor Cushmans Syllogism :
Major Premiss: Legislative power cannot be constitutionally delegated by

Congress. Minor Premiss: It is essential that certain powers be delegated to
administrative officers and regulatory commissions. Therefore, the powers
thus delegated are not legislative powers.213
III. INDIA
(i) Pre-Constitution Period.
That before the Constitution of India came Into force in 1950, Indian
Legislatures were the creatures of law passed by the British Parliament and
thus they were characterised as non-sovereign law-making bodies.2 The
question of the validity of delegation of legislative power by an Indian
Legislature was raised for the first time in the Burah case decided in 1878
As regards pre-Constitution period relating to delegated legislation in

India, Queen v. Burah214is considered to be the leading authority
212 Davis, Administrative Law, 54 (1951).

213 Schwartz, American Administrative Law, 1984 p. 47.
214 (1878) 3 AC 889.
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propounding the doctrine of conditional legislation. In 1869, the Indian
legislature passed an Act purporting to remove the district of Garo Hills from
the jurisdiction of the civil and criminal courts and the law applied therein,
and to vest the administration of civil and criminal justice within the same
district in such officers as the Lieutenant-Governor of Bengal might appoint
for the purpose. By section 9, the Lieutenant-Governor was empowered from
time to time, by notification in the Calcutta Gazette, to extend, mutatis
mutandis, all or any of the provisions contained in the Act to the Jaintia,
Naga and Khasia Hills and to fix the date of application thereof as well. By a
notification dated October 14, 1871, the Lieutenant Governer extended all
the provisions of notification which was challenged by Burah who was
convicted of murder and sentenced to death.
The High Court of Calcutta by a majority upheld the contention of

the appellant and held that section 9 of the Act was ultra vires the powers
of the Indian Legislature. In the opinion of the Court, the Indian Legislature
was a delegate of the Imperial Parliament and as such further delegation
was not permissible.
Thereupon the Government appealed to the Privy Council. The Act

was held valid by the Privy Council. It was held that the Indian Legislature
was not an agency or delegate of Imperial Parliament and it had plenary
powers of legislation as those of Imperial Parliament. It agreed that the
Governor-General in Council could not, by legislation create a new
legislative power in India not created or authorised by the Council's Act of
Imperial Parliament. However, in fact it was not done. It was a case of only
conditional legislation, as the Governor was not empowered to pass new
laws but merely to extend the provisions of the Act already passed by the
competent legislature upon fulfilment of certain conditions.
The decision of the Privy Council is open to two different

interpretations. One interpretation is that since the Indian legislature is not
a delegate of British Parliament, there is no limit on the delegation of
legislative power. But the other interpretation is that since Privy Council
has validated only conditional legislation, therefore, delegation of legislative
Page | 96
power is not permissible.215
In the Banwarilals case,216 was involved an Ordinance issued by the

Govenor-General2 providing for the setting up of special criminal courts
for trial of certain offences. The Ordinance contained provisions regarding
the jurisdiction and procedure, etc. of such courts. It did not itself set up
any of these courts, but provided that it shall come into force in any province
only if the Provincial Government being satisfied of the existence of an emer-
gency.. . . declares it to be in force in the province . . . ." The validity of the
Ordinance was challenged on the ground that it amounted to "delegated
legislation" in so far as the Governor General sought to pass the decision
regarding the existence of an emergency to the provincial government instead
of deciding it for himself. The Privy Council held that the Ordinance was
not delegated legislation. The Governor-General had not delegated his legis-
lative powers at all. The Ordinance was merely : an example of the, not
uncommon legislative arrangement by which the local application of the
provision of a Statute is determined by the judgment of a local adminis-
trative body as to its necessity.
- The question of constitutional validity of delegation of powers came for

consideration before the Federal Court in Jatindra Nath Gupta v.
Province of Bihar.217 In this case the validity of section 1(3) of Bihar
Maintenance of Public Order Act, 1948 was challenged on the ground
that it empowered the Provincial Government to extend the life of the
Act for one year with such modification as it may deem fit. The Federal
Court held that the power of extension with modification is not a valid
delegation of legislative power because it is an essential legislative
function which cannot be delegated. In this way for the first time it was
ruled that in India Legislative powers cannot be delegated.218
215 AIR 1949 FC 175.

216 (1949) F.L.R. 225; AIR 1949 P.C. 115.
217 AIR 1949 FC 175.
218 Delegated Legislation in India, p. 81 (1964) ; Indian Law Institute, New Delhi,
Publication.
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(ii) Post-Constitution Period
(a) Constitutionality of Delegated Legislation.As the decision in
Jatindra Naths case had created confusion, the question of permissible
limits of delegation of legislative power became important. Therefore, in
order to get the position of law clarified, the President of India sought the
opinion of Supreme Court under Article 143 of the Constitution. The
question of law which was referred to the Supreme Court was of great
Constitutional importance and was first of its kind. The provision of three
Acts, viz.,
(i) Section 7 of the Delhi Laws Act, 1912;
The Provincial Government may, by notification, in the official

Gazette, extend with such restrictions and modifications as it thinks
fit to the Province of Delhi or any part thereof, any enactment
which is in force in any part of British India at the date of such
notification.
(ii) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and
The Central Government may, by notification in the official

Gazette, extend to the Province of Ajmer-Merwara with such res-
trictions and modifications as it thinks fit any enactment which is
in force in any other province at the date of such notification.
(iii) Section 2 of the Part C States (Laws) Act, 1950, were in issue in
Delhi Laws Act Case, Re.219
The Central Government may, by notification in the Official

Gazette, extend to any Part C State (other than Coorg and the
Andaman and Nicobar. Islands) or to any part of such State, with such
restrictions and modifications as it think fit, any enactment which is
in force in a Part A State at the date of the notffication : And 'provision
219 AIR 1951 SC 332.

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may be made in any enactment so extended for the repeal or
amendment of any corresponding law (other than a central Act) which
is for the time being applicable to that Part C State.
- There were a few Part C States. Delhi was one of them. Part C States
were under the direct administration of the Central Government as
they had no legislature of their own. Parliament had to legislate for
these States. It was, therefore, that Parliament passed a law, the Part
C States (Laws) Act, 1950.
- The Central Government was authorised by section 2 of the Part C

States (Laws) Act, 1950 to extend to any Part C State with such
modifications and restriction as it thinks fit, any enactment in force in
a Part A State, and while doing so, it could repeal or amend any
corresponding law (other than a central law) which might be in force in
the Part C States. Really, it was a very sweeping kind of delegation.
- The Supreme Court was called upon to determine the constitutionality

of this provision. All the seven judges who participated in the reference
gave seven separate judgments exhibiting a cleavage of judicial
opinions on the question of limits to which the legislature in India
should be permitted to delegate legislative power.220 By a majority, the
specific provision in question was held valid subject to two limitations :
(1) The executive cannot be authorised to repeal a law in force and thus,
the provision which authorised the Central Government to repeal a law
already in force in the Part C States was bad; and
(2) By exercising the power of modification, the legislative policy should

not be changed, and thus, before applying any law to the Part C State the
Central Government cannot change the legislative policy.
(b) Principles laid down in the Reference Case.

In Re Delhi Laws Act may be said to be Siddhanatawali as regards
constitutionality of delegated legislation. The importance of the case cannot
220 M.P. Jain, Principles of Administrative Law, 1986, p. 38.

Page | 99
be under-estimated inasmuch as on the one hand, it permitted delegation
of legislative power by the legislature to the executive, while on the other
hand, it demarcated the extent of such permissible delegation of power by
the legislature.221 In this case it was propounded :
(a) Parliament cannot abdicate or efface itself by creating a parallel

legislative body.
(b) Power of delegation is ancillary to the power of legislation.
(c) The limitation upon delegation of legislative power is that the legislature
cannot part with its essential legislative power that has been expressly
vested in it by the Constitution. Essential legislative power means laying
down policy of law and enacting that policy into a binding rule of
conduct.222
(d) Power to repeal is legislative and it cannot be delegated.
The theme of Re Delhi Laws Act case is that essential legislative function
cannot be delegated whereas non-essential can be delegated.
Subsequent Decisions Clarifying the Delhi Laws Act Case
In Hari Shankar Bagla V. M. P. State223 the Supreme court unani-

mously deduced a binding rule from its earlier decision in the Delhi Laws
Act case to the effect that essential powers of legislation could not be dele-
gated. In other words, the legislature could not delegate its function of
laying down legislative policy in respect of any measure and its formulation
as a rule of conduct. The legislature must declare the policy of the law and
the legal principles which were to control any given cases and must provide
a standard to guide the officials or the body in power to execute law. The
essential legislative function consisted in the determination or choice of the
legislative policy and of formally enacting that policy into a binding rule of
conduct.
221 Ibid.
222 Indian Law Institute, Cases and materials on Administrative Law in India, 1966, p.
220.
223 1954 S.C. 465, 468.
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The Supreme Court in Rajnarain Singh v. Chairman, Patna
Administration Committee224 analysed in detail the Delhi Laws Act case
with reference top specific powers delegated therein. The court in that case
had the following problems'.
In each, case, the Central Legislature had empowered an executive

authority under its legislative control to apply, at its discretion, laws to an
area which was also under the legislative sway of the Centre. The
variations occur in the type of laws which the executive authority was
authorised to select and in the modifications which it was empowered to
make in them.
The variations were as follows :
(1) Where the executive authority was permitted, at its discretion, to apply
'without modification (save inc dental changes such as name and place),
the whole of any Central Act already in existence in Any part of India
under the legislative sway of the Centre to the new area
- This was upheld by a majority of six to one.
(2) Where the executive authority was allowed to select and apply a
Provincial Act in similar circumstances :
- This was also upheld, but this time by a majority of five to two.
(3) Where the executive authority was permitted to select future Central
laws and apply them in a similar way :
- This was upheld by five to two.
(4) Where the authorisation was to select future Provincial laws and apply
them as above.
- This was also, upheld by five to two.
(5) Where the authorisation was to repeal laws already in force in the area
and either substitute nothing in their places or substitute other laws,
Central or Provincial, with or without modification :
- This was held to be ultra sires by a majority of four to three.
224 A.I.R. 1954 S.C. 569.

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(6) Where the authorisation was to apply existing laws, either Central or
Provincial, with alterations and modifications : and
(7) Where the authorisation was to apply future laws under the same
conditions.
The view of the various members of the bench were not as clear cut
here as in the first five cases.
- Their Lordships after looking to the above problems and relying on the
majority view given in the Delhi Laws Act case held that an executive
authority can be authorised to modify either existing or future laws but
not in any essential feature.
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CHAPTER - 9
Judicial Control over Delegated Legislation
That due to the complexities and exigencies of intensive form of

government, the institution of delegated legislation has come to stay. In
almost all the Countries the technique of delegated legislation is used at a
large scale and some legislative powers are delegated by the legislature to the
executive. Delegation of Legislative Powers to the executive has to be
conceded within the permissible limits. However, there is inherent danger of
abuse of the legislative power by the executive authorities.
- The need, therefore, is that of controlling the delegate in exercising his

legislative powers. The Committee on Ministers Powers has rightly
observed that though the practice of delegated legislation is not bad,
risks of abuse are incidental to it and therefore safeguards are
necessary, if the country is to continue the advantages of the practice
without suffering from its inherent dangers. Therefore, today the
question is not whether delegated legislation is desirable or not, but it
is what controls and safeguards can be introduced so that the power
conferred is not misused or misapplied.225
- Attention toward the abuse of delegated legislation was drawn by the

Committee on Ministers Powers in the following words :
We doubt, however, whether Parliament itself has fully realised how

extensive the practice of delegation has become, or the extent to which it has
surrendered its own functions in the process, or how easily the practice might
be abused.226
- There is need of compromise between two conflicting principles;

one permitting very wide powers of delegation for practical reasons
while the other that no new legislative bodies should be set up by
225 Committee on Subordinate Legislation (First Lok Sabha), 1954 (3rd Report) p. 16;
See also Jain, M.P.,Principles of Administrative Law, 1986, p. 60; Wheare, K.C.,
Controlling Delegated Legislation; A BritishExperiment, (1949) 11 Jour. Pol. 748.
226 Vasantlal Maganbhai v. State of Bombay, AIR 1961 SC 4 at p. 12.
Page | 103
transferring essential legislative functions to administrative
authorities.227
I. According to Krishna Iyer, J., The system of law-making and

performance auditing needs careful, yet radical restructuring, if
participative, pluralist Government by the people is not to be
jettisoned.228
II. Subba Rao, J.,229 as he then was has rightly observed : There is
danger inherent in such a process of delegation. An overburdened
legislature or one controlled by the powerful executive may unduly
overstep the limits of delegation. It may not lay down policy at all, it
may declare its policy in vague and general terms; it may not lay
down any standard for the guidance of the executive, it may confer
an arbitrary power on the executive to change or modify the policy
laid down by it without reserving for itself any control over
subordinate legislation. This self effacement of legislative power in
favour of another agency either in whole or in part is beyond the
permissible limits of delegation. It is for a Court to hold on a fair,
generous and liberal construction of an impugned statute whether
the legislature exceeded such limits.230
The control-mechanism of delegated legislation is exercised at two

stages:-
(i) At the stage of delegation of legislative power by legislature to the

executive. The question here is what should be the limits of delegation
of legislative power ? What is required here is that safeguards must be
provided when the legislature confers the legislative power on the
administration.
(ii) At the stage of exercise of the delegated power by the executive. The
requirement here is that some safeguards must be provided in the case
of misuse or abuse of power by the executive. In this chapter, we will
227 Per Bose, J. in Delhi Laws Act case, AIR 1951 SC 332.
228 Avirtdar Singh v. State of Punjab, AIR 1979 SC 321.
229 Devi Das v. State of Punjab, AIR 1967 SC 1895.
230 Ibid, at p. 1901.
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consider certain controls and safeguards against the possible abuse of
legislature by the executive authorities.
JUDICIAL CONTROL : DOCTRINE OF ULTRA VIRES

In the control-mechanism, judicial control has emerged as the most
outstanding controlling measure. Judicial control over delegated legislation
is exercised by applying two tests :
1. Substantive ultra vires; and

2. Procedural ultra vires.
Meaning of Ultra Vires - Ultra vires means beyond powers, when a

subordinate legislation goes beyond the scope of authority conferred on the
delegate to enact, it is known as substantive ultra vires. It is a fundamental
principle of law that a public authority cannot act outside the powers and if
the authority acts, such act becomes ultra vires and, accordingly void.231 It
has been rightly described as the central principle and foundation of large
part of administrative law.232 An act which is done in excess of power is ultra
vires.
I. When a subordinate legislation is enacted without complying with the

procedural requirements prescribed by the Parent Act or by the general
law, it is known as procedural ultra vires. In case of procedural ultra
vires, the Courts may or may not quash delegated legislation as it
depends upon the circumstances whether the procedure is held to be
mandatory or directory.
II. Judicial control over delegated legislation is exercised by applying

the doctrine of ultra vires in a number of circumstances 233. Which
are as follows :-
I. Delegated legislation in conflict with the Parent Act
231 Basu Administrative Law, 1984, p. 12.

232 Wade, Administrative Law, 1988, p. 39.
233 As per Venkataramiah, J., in Indian Express Newspapers v. Union of India, AIR
1985 SC 515,
Page | 105
II. Delegated Legislation in excess of the power conferred by the Parent Act
III. Where delegated legislation is ultra vires the Parent Act
IV. Where delegated legislation is ultra vires the Constitution
V. Where Parent Act is ultra vires the Constitution
VI. Delegated legislation in conflict with the prescribed procedure of the
Parent Act-
VII. Malafide : Bad Faith
VIII. Unreasonableness
IX. Pragmatism
X. Oppressiveness
I. Where Parent Act is ultra vires the Constitution-

The Constitution prescribes the boundaries within which the legislature
can act. If the Parent Act or enabling Act is ultra vires the Constitution the
rules and regulations made there under would also be null and void. The
Parent Act is declared ultra vires the Constitution, if it violates :
(i) Express Constitutional Limits;
(ii) Implied Constitutional Limits; and
(iii) Constitutional Rights.
(i) Express Constitutional Limits

Invalidity of the rules and regulations arises if the Parent Act is
violative of express limits prescribed by the Constitution. The
legislative powers of the Union and the States are distributed in
Article 246 of the Constitution. If either legislature encroaches upon
the exclusive sphere of the other as demarcated in three Lists : (i)
Union list; (ii) State list; and concurrent list, its legislation will be
ultra vires.
(ii) Implied Constitutional Limits

Implied Constitutional limits are those which were enunciated
in Delhi Laws Act case,234 viz., laying down policy and enacting that
policy into a binding rule of conduct. Legislature cannot delegate
234 AIR 1951 SC 332.

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essential legislative function to any other agency and if it so delegates
the Parent Act will be ultra vires the Constitution.
In Delhi Laws Act case, the Supreme Court declared the later
part of clause 2 bad because it conferred power on the administrative
agency to repeal a law which, according to the Court, is an essential
legislative power.
III. Similarly, in Hamdard Dawakhana v. Union of India,235 the Court

held Section 3 of the Drugs and Magic Remedies (Objectionable
Advertisement) Act ultra vires the Constitution because the
legislature had not laid down sufficient guidelines for the exercise of
administrative discretion in selecting a disease to be included in the
list.
IV. In St. Johns Teachers Training Institute v. Regional Director,

National Council for Teacher Education236 the Supreme Court has
laid down that delegated legislation is based on the assumption that
legislature cannot possibly foresee every administrative difficulty that
may arise in operation of statute. Delegated legislation is designed to
fill those needs and is meant to supplement and not supplant the
enabling statute.
(iii) Constitutional Rights

No legislature has competence to pass a law violative of the
provision of commerce clause, right to property under Article 300-A
or right to life and personal liberty under Article 21. Moreover, there
is another ground on which the validity of Parent Act may be
challenged, although the statute is well within the legislative
compliance, yet violates the provisions of Part III of the Constitution
by imposing what may be called an unreasonable restriction on the
enjoyment of fundamental rights.237
235 AIR 1960 SC 554.

236 AIR 2003 SCW 8014.
237 For detailed discussion, see Jai Jai Ram Upadhyaya, Sociological Theory of
Reasonableness, (1968) II SC J 99; Wharm, Alan, Judicial Control of Delegated
Legislation: The Test of Reasonableness, 36 Mad L.R. 611 (1973).
Page | 107
V. In Chintaman Rao v. State of Madhya Pradesh238 the Parent Act
conferred power on the Deputy Commissioner to prohibit the
manufacture of bidis in notified areas during the agricultural season
as fixed by him. The Deputy Commissioner imposed a total ban on
the manufacture of bidis. The order passed by the Deputy
Commissioner was held ultra vires inasmuch as the Act under which
it was made violated the fundamental right to carry on trade,
business, profession and occupation guaranteed under Article 19 (1)
(g) of the Constitution of India. In the opinion of the Court the order
imposed unreasonable restriction on the exercise of fundamental
right.
II. Where delegated legislation is ultra vires the Constitution-

(i) General
- Sometimes it may happen that the Parent Act may not be ultra vires
the Constitution and delegated legislation may be consistent with the
Parent Act, yet the delegated legislation may be held invalid on the
ground that it is ultra vires the Constitution. It is precisely this point
which the Supreme Court was called upon to consider in Narendra
Kumar v. Union of lndia239 In this case the Supreme Court held that
even if the Parent Act is Constitutional, the validity of delegated
legislation can still be challenged on the ground that the law cannot be
presumed to authorise anything which may be in contravention of the
Constitution.
- In Dwarka Prasad v. State of Uttar Pradesh,240 the U.P. Control Order

was made under the Essential Supplies (Temporary Powers) Act, 1946.
Although the Parent Act was Constitutional, yet clause 3 (2) (b) of the
Order was held ultra vires by the Supreme Court as it violated Article
19 (1) (g) of the Constitution of India by imposing unreasonable
restriction on the right to carry on trade and business. Clause 3 (1) of
238 AIR 1951 SC 118.

239 [1960] 2 SCR 627
240 1993 Supp 3 SCC 141
Page | 108
the Order provided that no one can carry on business in Coal except
under a licence. Clause 3 (2) (b) further laid down that the State Coal
Controller can exempt any person from the licence requirement. The
Court held that clause 3 (2) (b) was ultra vires Articles 19 (1) (g) as it
confers arbitrary powers on the executive in granting exemptions.
(ii) Arbitrary power is ultra vires the Constitution-

- In Himmat v. Commissioner of Police,241 Section 33 (1) of-the
Bombay Police Act, 1951 had authorised the Commissioner of Police to
make rules for regulation of conduct and behaviour of Assemblies and
Processions on or along the streets. Rule 7 made thereunder provided
that no public meeting will be held without previous permission of the
.Commissioner. The rule was held ultra vires on the ground that it
conferred arbitrary powers on the Commissioner in granting or
refusing permission and as such it imposed unreasonable restriction
on the exercise of freedom of speech and expression guaranteed under
Article 19 (1) (b) of the Constitution.
- In K. Panduranga v. State of Andhra Pradesh,242 the Court quashed

Andhra Pradesh Catering Establishments (Fixation and Display of
Prices of Foodstuffs) Order, 1978 which made it compulsory for
hoteliers to sell all the seven eatable items mentioned in the schedule.
The Court ruled that any order compelling a person to carry on
business against his will was violative of Article 19 (1) (g) of the
Constitution.
- In Labh Chandra v. State of Bihar,243 the impugned rule had

restricted the voting rights for the management of Jain temples to
persons who are of 21 years, who had donated not less than Rs. 50Q/-
to the temple and who were residing within the State for the last 1C
years. The Patna High Court held the rule to be discriminatory and
ultra vires Article 14 of the Constitution.
241 AIR 1973 SC 87.

242 AIR 1985 AP 208.
243 A.I.R. 1975 Pat. 206.
Page | 109
Theory of Derivative Immunity
- Where the Parent Act cannot be challenged before the Court because it
is protected' under Article 31-B of the Constitution on account of its
placement in the Ninth Schedule, the question is whether the
delegated legislation made there under can be challenged. In Vasanlal
Maganbhai v. State of Bombay244 and Latafat AH Khan v. State of
Uttar Pradesh245 it was held that if the Parent Act is saved under
Article 31-B and cannot be challenged, the delegated legislation also
cannot be challenged as being violative of any Fundamental Rights on
the ground of derivative protection.
- However, this theory of derivative immunity was not reiterated in Prag

Ice and Oil Mills v. Union of India.246 In this case the constitutional
validity of the Mustard Oil (Price Control) Order, 1977 was challenged.
The Parent Act (Essential Commodities Act, 1955) was placed in the
Ninth Schedule and, therefore, was protected under Article 31 -B. The
question before the Supreme Court was whether the orders and
notification (child legislation) issued under the Essential Commodities
Act, 1955 can still be challenged as violative of Fundamental Rights.
The Supreme Court answered the said question in the affirmative. The
Court held that even in a case where a Parent Act cannot be
challenged before the Court because of protection of Article 31-B of the
Constitution on account of its placement in the Ninth Schedule, the
delegated legislation promulgated there under can still be challenged if
it violates any provision of the Constitution. In this way child
legislation does not come under the protective umbrella of the Ninth
Schedule.
III. Where delegated legislation is ultra vires the Parent Act-

Delegated legislation can be challenged on the ground that it is ultra
244 AIR 1961 SC 4.

245 AIR 1973 SC 2070.
246 AIR 1978 SC 1296.
Page | 110
vires the Parent Act or enabling statute or any general law.247 It is an
accepted principle that the authority of delegated legislation must be
exercised within the authority. The delegate cannot make a rule which is not
authorised by the Parent Stature or delegating statute. Delegated legislation
or subordinate legislation can be declared valid only if it conforms exactly to
the power conferred. Rule is always open to challenge on the ground that it
is unauthorised. The validity of delegated legislation is a matter if vires, that
is, whether or not the power has been exceeded or otherwise wrongfully
exercised or is inconsistent with the Parent Act.248
- In Additional District Magistrate (Rev.) v. Sri Pam249 the Supreme

Court held that the conferment of rule-making power by an Act does
not enable the rule- making authority to make a rule which travels
beyond the scope of the enabling Act. In this case Delhi Land Revenue
Act and Delhi Reforms Act did not empower rule-making authority to
classify land or to exclude any area from preparation of record of right
and annual register. However, rules made under Act in 1962 classified
land into six categories and provided that the name of tenure holder or
sub-tenure holder occupying land in extended abadi and in
prescribed six categories of land will not be reflected in the record of
right and annual register. The Court held that the rules are ultra virus
the parent/enabling Act.
- In Kunj Behari Lai Butel v. State of H.P.250 the Apex Court held that
the administrative authority (in this case state) cannot bring within the
net of the rules what has been excluded by Act itself. In this case H.P.
Ceiling on Land Holdings Act, 1972 had delegated to the State
Government the power to make rules for the purpose for carrying out
the purposes of this Act. The Act by Section 5 trade exempted The
247 Wade, Administrative Law, 1988, p. 863; Halsburys Laws of England, 4th Edn. Vol.
I, para 21; Garner, Administrative Law, 1985, pp. 66-67.
248 Asstt. Collector of Central Excise v. Ramakrishna, AIR 1989 SC 1829; District
Collectoi Chittor v. Chittor District Ground Nut Traders Association, AIR 1989 SC
689; Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC
334.
249 (2000) 5 SCC 452.
250 (2000) 3 SCC 40.
Page | 111
Estates and land subservient thereto from the operation of the Act.
However, rules framed by the State Government had put embargo on
the transfer of land subservient to estates. Accordingly, the rules were
held ultra vires the Parent Act being inconsistent and repugnant to it.
IV. Delegated Legislation in excess of the power conferred by the

Parent Act.
If the subordinate authority keeps within the powers delegated, the
delegated legislation is upheld valid; but if it does not, the Court will
certainly quash it.251
- In Dwarka Nath v. Municipal Corporation,252 Prevention of Food

Adulteration Act, 1954 empowered the Central Government under
section 23 (1) to make rules for restricting the packing and labelling of
any article of food with the end in view to preventing the public from
being deceived or misled as to quantity and quality of the article. Rule
32 made thereunder by the government stated that there shall be
specified on every label name and business address of the
manufacturer, batch number or code number either in Hindi or
English. Proceedings started against Mohan Ghee Company for
violation of Rule 32 as on Ghee tins only Mohan Ghee Laboratories,
Delhi-5 was written. It was pleaded on behalf of Mohan Ghee
Company that the requirement of address under Rule 32 is in excess
of the power of the Parent Act which is restricted to quantity and
quality only. Accepting the contention, the Supreme Court held Rule
32 as ultra vires of the Act as it was beyond the power conferred on
the government.
- In Chandra Bali v. R.,253 certain rules framed under the Northern

Indian Ferries Act were challenged. The Act authorised the making of
rules for the purpose of maintaining order ensuring safety of
251 Vasin v. Town Area Committee, AIR 1952 SC 115, Tahir Hussain v. District Board
Muzaffarnagar, AIR 1954 SC 630; Ganapati Singh v. State of Ajmer, AIR 1955 SC
188.
252 AIR 1971 SC 1844.
253 AIR 1952 All. 795.
Page | 112
passengers and property. However, the delegate made rules forbidding
the establishment of private ferries within the distance of two miles
from the boundaries of another ferry. The Court held the rules ultra
vires as they were outside the - scope of delegated power.
In the same manner, in Mohd. Yasin v. Town Area Committee,254

the Parent Act had authorised the municipality to charge fee only for the
use and occupation of some property of Committee, but the Town Area
Committee made some bye-laws imposing levy on whole sellers
irrespective of any use or occupation of property by them. The Supreme
Court held that the bye-laws were beyond the powers conferred on the
Committee and were as such ultra vires. Similarly, in Ibrahim v.
Regional Transport Authority,255 under the Parent Act, the
administrative authority was empowered to frame rules for the control of
transport vehicles. But the authority made rules for fixing sites for the
bus stand. The Court held the rules ultra vires being in excess of power
conferred by the delegating statute.
- In Ajoy Kumar Banerjee v. Union of India256 under section 16 (2) of

the General Insurance Business (Nationalisation) Act, 1972, the
government was authorised to make rules for the reorganization of the
General insurance whereas the rules so framed provided to fix salary
patterns of employees. Declaring the rules ultra vires the Parent Act,
the Supreme Court held them invalid.
Delegated legislation may be struck down if the Courts find the

same to be against some specific statutory provision or against the
general tenor or underlying purpose of the delegating statute. In Sales
Tax Officer v. Abraham,257 rule-making power was conferred on the
government for carrying out the purpose of the Act whereas the rules
were made prescribing the last date for filing declaration forms by dealers
in order to get the benefit of concessional rates on inter-State sales. The
254 AIR 1952 SC 115.

255 AIR 1953 SC 79.
256 AIR 1984 SC 1130.
257 AIR 1967 SC 1823.
Page | 113
Court quashed the rules as it found that the statute authorised to make
rules only for prescribing what particulars were to be mentioned in the
forms and not for prescribing time limit for filing the forms. The Court
declared the rules ultra vires the law-making power conferred and
quashed them.
- In General Officer Commanding-in-Chief v. Subhash Chandra

Yadav,258 the Central Government framed rules in the exercise of
powers conferred on it under the Cantonment Act, 1924. Section 280
(2) (C) of the enabling Act empowered the Central Government to make
rules providing the tenure of office, salaries and allowances, provident
funds, pensions, gratuities, leave of absence and other conditions of
service of the servants of Boards. In pursuance of the power, the
Central Government Promulgated Cantonment Funds Servant Rules,
1937. Rule 5-C was inserted in 1972 providing for transfer of servants
from one Cantonment Board to another Board. The Supreme Court
held that the rule was ultra vires the Act and therefore void as the
Central Government was not given such power.
- In Major Radha Krishan v. Union of India and others259 the Supreme

Court has held that an administrative action taken in exercise of
powers under a rule cannot override the provisions of a statute under
which the rule was made. In this case an administrative action which
was barred under the provision of the statute was taken under a rule
made there under getting over the statutory provision. The Court held
the action to be null and void.
- In a pace-setting judgment the Apex Court in V. Sundeer v. Bar

Council of India260 held that the Bar Council of India Training Rules,
1995 was ultra vires of the parent (enabling Act. Section 49 of the
Advocates Act, 1961 as amended in 1973 provided that it shall have
power to make rules for discharging its functions under the Act. The
258 AIR 1988 SC 876.

259 1965 SCR (1) 213
260 AIR1999 SC 1167
Page | 114
rules framed for pre-enrolment training and Bar Examination, in fact,
did not relate to any of its functions as provided under the Act. The
Apex Court quashed the rules and held that rules framed under
Section 49(1) of the Act must have a statutory peg on which to hang
them. There is no statutory peg and therefore the rule will become
stillborn. Therefore, unless the Parliament makes provision for pre-
envelopment training and examination, the Bar Council of India
cannot do it by rule-making power.
- In Mohini Jain v. State of Karnataka261 has held that rules framed by

the Government under the Educational Institutions (Prohibition of
Capitation Fees) Act, 1984 are in violation of the purpose and object of
the Act, hence, void. In this case the statute had prohibited capitation
fees whereas the rules made there under prescribed a fee which could
be charged by private medical colleges and which was not the tuition
fee but capitation fee. The rules prescribed a fee of Rs. 2000 for merit
students and Rs. 25,000 and 60,000 for non-merit students for
Karnataka and non-Karnataka students respectively.
Liberal attitude of the Court

However, liberal judicial attitude towards delegated legislation is typified
by the Supreme Court pronouncement in certain cases. In Tata Iron & Steel
Co. v. Workmen262 Section s of the Coal Mines Provident Fund and Bonus
Scheme Act, 1948 authorised the Central Government to frame Bonus
Scheme for Employees. In exercise of the power, the Central Government
established a quasi-judicial tribunal to decide certain disputes. It was
contended that such a tribunal could only be created by the Legislature and
not by an executive fiat. Rejecting the contention, the Supreme Court
observed that it was a matter of detail which is subsidiary or ancillary to the
main purpose of legislative measure for implementing the scheme.263
261 (1996) 3 SCC 507.

262 AIR 1973 SC 1401
263 Ibid
Page | 115
- Similarly, in State of T.N. v. Hind Stone,264 Section 15 of the Mines
and Minerals (Regulation and Development) Act, 1957 authorised the
State Government to frame rules for regulating the grant of mining
leases. Rule 8-C promulgated by the State Government banned leases
for quarrying black granite in favour of private persons. Thus, by
delegated legislation private enterprise was abolished in quarrying
black granite. It was contended that rule was ultra vires the Parent Act
and was, therefore, invalid. Rejecting contention, the Supreme Court
observed : we have no doubt that the prohibiting of leases in certain
cases is a part of regulation contemplated by section 15 of the Act. In
this way, the legislature and its delegates are the sole repositories of
the power to decide what policy should be pursued in relation to
matters covered by the Act.
- The question whether a particular piece of delegated legislation is in

excess of the power of subordinate legislation coferred on the delegate
has to be determined with reference to the specific provisions
contained in the relevant statute conferring the power to make the
rule, regulation etc. and also the object and purpose of the Act as can
be gathered from the various provisions of the enactment. So long as
the rules have a rational nexus with the object and purpose of the
statute, it is not within the domain of the Court to determine whether
a purpose of a statute can be served better by adopting a policy
different from that what has been laid down by the legislature or its
delegate.265
V. Delegated legislation in conflict with the Parent Act-

The validity of delegated legislation can be challenged on the ground that it is
in conflict with any provision of the Parent Act. Thus, in D.T.U. v. Hajelay266
under section 95 of the Delhi Corporation Act, 1957, it was provided that no
employee can be dismissed by any authority subordinate to the appointing
authority i.e. the General Manager. He delegated that power by making a rule
264 AIR 1981 SC 711.

265 Maharashtra Board of S. H. S. E. v. Paritosh, AIR 1984 SC 1543.
266 AIR 1972 SC 2452.
Page | 116
to the Assistant Manager. It was held that such a rule was in conflict with the
Parent Act and therefore it was invalid.
- Similarly in State of Karnataka v. Ganesh Kamathr267, under section

7 of the Motor Vehicles Act, 1939, it was provided that a person who
passes a test in driving a heavy motor vehicle is to be deemed to have
passed the test in driving any medium motor vehicle also. Rule 5 (2)
made under the Act provided that though a person has passed the test
for driving heavy motor vehicle, he cannot obtain a licence unless he
has already possessed a licence and has two years experience for
driving medium motor vehicle. He cannot obtain such a licence unless
he has previously passed the test in driving medium motor vehicle.
This rule was found to be in direct conflict with section 7 of the Parent
Act. The Supreme Court held that the rule travelled beyond the scope
of statutory authority and therefore it was inconsistent with the
enabling Act.
The question, however, is as to when a bye-law or any other

delegated legislation can be said to be inconsistent with or repugnant to
the Parent Act or any general law and Therefore, bad. In White v.
Morley,268 Channel, L.J. observed, A bye-law. ... is not bad because it
deals with something that is not dealt with by the general law. But it
must not alter the general law by making that lawful which the general
law makes unlawful; or that unlawful which the general law makes
lawful.269
Similarly, Krishna Iyer, J.270 says, a law has to be adjudged for its
Constitutionality by the generality of cases it covers, not by the frecks and
exceptions, it martyrs. The legislature and its delegate are the sole
repositories of the power to decide what policy should be pursued and
there is no scope for interference by the Court unless the particular
provision impugned before it can be said to suffer from any legal infirmity,
267 AIR 1983 SC 550, 1983 (2) SCC 402;

268 (1899) 1 Q.B34.
269 Ibid, at p. 39.
270 Joshi v. Anant Mills, AIR 1977 SC 2279.
Page | 117
in the sense of being wholly beyond the scope of regulation-making power
or its being inconsistent with any of the provisions of the Parent
enactment or in violation of any of the limitations imposed by the
Constitution."271
- In Supreme Court Employees. Welfare Association v. Union of

India,272 the Supreme Court has held that the validity of the
subordinate legislation can be challenged on such grounds as any
other legislative acts can be challenged."273 After referring to a number
of leading cases, the Court concluded, Where the validity of a
subordinate legislation (whether made directly under the Constitution
or a statute) is in question, the Court has to consider the nature
objects and the scheme of the instrument as a whole, and, on the
basis of that examination, it has to consider what exactly was the area
over which, and the purpose for which, power has been delegated by
the governing law.274
VI. Delegated legislation in conflict with the prescribed procedure of

the Parent Act-
Sometimes it happens that the Parent Act lays down procedure which
must be followed by the administrative body while exercising law-making
power under it. If the procedure is not followed, the delegated legislation may
be declared bad. In Banwari Lai Agarwalia v. State of Bihar275 under
section 12 of the Mines Act, 1952, the Central Government was required to
consult the Mining Board constituted under the Act before framing rules.
The Central Government made rules without consulting the Mining Board.
- The Supreme Court held that the rules so framed in violation of the
statutory provision were invalid being ultra vires the procedure
established by the Parent Act.
- In considering the question of validity of delegated legislation on the

ground of procedure, the Court looks to the intent rather than the
271 Maharashtra Board of S. H. S. E. v. Paritosh, AIR 1984 SC 1543.

272 AIR 1990 SC 334.
273 AIR 1990 SC 334.
274 Ibid.
275 AIR 1970 Pat 377
Page | 118
form of law. In Raza Buland Sugar Co. v. Rampur Municipality,276 it
was proviaed under the Municipalities Act, 1916 that the rule in draft
form must be published in local Hindi daily. However, the draft rules
were published in an Urdu daily. It was contended that the draft rules
were invalid on account of violation of the mandatory procedure
clause. Rejecting the contention, the Supreme Court held that what
was material was the publication and not the Hindi daily. AIR 1989 SC
989.
Delegated legislation is bad on ground of procedure where it is in excess

or in contravention of delegated powers. In District Collector, Chittorv.
Chittor District Ground Nut Traders Association,277 while exercising
powers under Section 3 of the Essential Commodities Act, 1955, the Central
Government authorised the State Government by issuing notification to
make orders to provide for the matters mentioned in the said notification.
Under clause 2 of the notification it was required that while making the
order pertaining to any matters specified in certain clauses including clause
(f) of sub-section (2) of section 3 of the Act, the State Government shall
obtain prior concurrence of the Central Government. The State Government
issued a circular placing restriction on the movement of oil, oil seeds, etc.
without obtaining prior concurrence of the Central Government. Holding the
order ultra vires, the Supreme Court observed, A delegate is not entitled to
exercise powers in excess or in contravention of the delegated powers. If any
order is issued or framed in excess of the powers delegated to the
authorities, such order would be illegal and void.
VII. Malafide : Bad Faith-

1. England.Delegated legislation may be challenged on the ground of
mala fides or improper motives of the rule-making authority.278
Whenever legislature confers any legislative power on any administrative
authority, the said power must be exercised in good faith by the latter
and on proof of bad faith the Court can hold the exercise of power ultra
vires.
276 AIR 1965 SC 895.

277 AIR 1961 SC 849.
278 Me Eldowney v. Forde, 1969 1 All E.R. 1039.
Page | 119
- In R. v. Comptroller-General of Patents,279 Clauson, J. said :
If on reading the order in Council making the regulation, it seems in fact
that it did not appear to his Majesty to be necessary or expedient for the
relevant purposes to make the regulation, I agree that on the face of the order,
it would be inoperative.280
- Similarly, from the observations of Lord Russel, C. J. in Kruse v.

Johnson,281 it becomes clear that if a bye-law discloses bad faith, it
may be held ultra vires.
2. India. In Narendra Kumar v. Union of India,282 while deciding the

validity of Non- Ferrous Metal Control Order, 1958, the Supreme Court
observed, mala fides have not been suggested and we are proceeding on the
assumption that the Central Government was honestly of the opinion283 from
these observations it may be inferred that courts may consider the mala fide
exercise of power by the statutory authority.
- In Nagraj v. State of A. P.,284 the Andhra Pradesh Government issued

an ordinance reducing the age of superannuation of all Government
Employees from 58/years to 55 years. The ordinance was challenged,
inter alia, on the ground that it was mala fide exercise of power.
Negativing the contention, the Supreme Court held that the ordinance
making power was a legislative power and the argument of mala tides
was misconceived.
It may be submitted that not only a delegated legislation but a statute

passed by competent legislature and even a Constitutional Amendment can
be challenged as being mala fide. The point is concluded in the leading case
of A.K. Roy v. Union of India.285 It may, however, be observed that
279 (1941) 2 KB 306.

280 Ibid, at p. 316.
281 (1898) 2 QB 91.
282 AIR 1960 SC 430.
283 Ibid, at p. 433.
284 AIR 1985 SC 551.
285 AIR 1982 SC 710.
Page | 120
allegations about mala fides are more easily made than made out.286 If,
however, made out, the delegated legislation may be declared ultra vires.287
VIII. Unreasonableness
(a) England.The principle in England is that the bye-laws made by
Municipal Corporations are ultra vires on the ground of unreasonableness.
This rule is based on the presumption that the legislation never intended to
give power to make unreasonable rules and they are therefore ultra vires. As
de Smith288 observes, there is no reason or principle why a manifestly
statutory instrument should not be held to be ultra vires on that ground
alone ..
The leading case on unreasonableness of bye-laws is Kruse v.

Johnson.289 In this case, the Parent Act conferred power on the County
Council of Kent to make bye-laws. A bye-law was made prohibiting any
person from playing music or singing in any public place or highway within
fifty yards of any dwelling house. As it was unreasonable, the same was
therefore held ultra vires.
Deciding the case, Lord Russel, C. J., propounded the test of

unreasonableness of delegated legislation as :
If, for instance, they (bye-laws) were found to be partial and unequal in
their operation as between different classes, if they were manifestly unjust; if
they disclosed bad faith; if they involved such oppressive or gratuitous
interference with rights of those subject to them as could find no justification
in the minds of reasonable men, the Court might well say, Parliament never
intended to give authority to make such rules, they are unreasonable and
ultra vires, In this way, the elements of unreasonableness are :
(a) Partial or unequal operation between different classes.

(b) Manifestly unjust.
286 Mittal v. Union of India, AIR 1983 SC 1.

287 Dr. V. N. Shukla, Judicial Control of Delegated Legislation, JILI 1959 p. 259.
288 Judicial Review of Administrative Action, (1984), pp. 354-55; Wade, Administrative
Law, (1988), p. 354; Garner, Administrative Law, 1985, p. 72.
289 (1898), 2. QB 91.
Page | 121
(c) Bad faith.
(d) Oppressive interference with the rights of people that no justification can
be found in the minds of reasonable men.
- Illustration - Arlidge v. Islington Corporation.290 In this case, a

corporation made a bye-law requiring the landlord of a lodging house
to cause the premises to be cleansed once a year. In case of breach of
the said bye-law, penalty was also imposed. The Court held such bye-
law ultra vires as being unreasonable, because the premises might
have been leased by the land-lord and he might be unable to carry out
the work without committing trespass.
(b) U.S.A.In U.S.A. delegated legislation can be challenged as

unreasonable under the due process clause of the Constitution. Schwartz291
states, The validity of regulation can be sustained only if it is reasonably
related to the purposes of enabling legislation. Even a rule that deals with
the subject matter within agencys delegated authority may be invalid if it is
arbitrary or unreasonable. Not only must a regulation, in order to be valid,
be consistent with the statute, but it must be reasonable also.292
(c) India.The principle is same as accepted in India. In Dwarka Prasad

v. State of U.P.,293 the validity of clause 4 (3) of the U.P. Coal Control Order
was challenged. Under this clause, the licensing authority was given power
to grant, refuse to grant, renew or refuse to renew a licence and to suspend,
cancel, revoke or modify any licence granted by him under the order for
reasons to be recorded.
- Holding the provision as arbitrary and unreasonable, the Court

observed that the licensing authority has been given absolute power
in the granting, cancelling etc. of licence. No rules have been framed
and no directions given on these matters to regulate or guide the
290 (1909) 2 KB 127.

291 Administrative Law, 1984, p. 154.
292 Mourning Family Prod. Services, (1973) 411 US 356; Manhattan Gen. Equipment
Company v. Commissioner, (1936) 297 US 129; F.C.C. v. American Broad Casting
Co., (1954) 347 US 284.
293 AIR 1954 SC 224.
Page | 122
discretion of the licensing authority. It was argued that a sufficient
safeguard was provided against any abuse of power by reason of the
fact that the licensing authority was required to give reasons.
- Rejecting this argument, the Court observed, "This safeguard, in our

opinion, is hardly effective, for there is no higher authority prescribed
in the order who could examine the propriety of these reasons and
revise or review the decision of the subordinate officer. The reasons,
therefore, which are required to be recorded are only for the personal
or subjective satisfaction of the licensing authority and not for
furnishing any remedy to the aggrieved person.294
The ruling in S. B. Yadava v. State of Haryana295 comes very close to

the proposition that unreasonable rules are ultra vires. In this case
retrospective operation of service rules was not permitted on the ground that
law-making power was not properly exercised inasmuch as the respectively
reached as long as seven years and the rules changed with every change in
the government as if they are play-thing in the hands of the government.
(i) Basis
In India, the doctrine of unreasonableness of delegated legislation has
been based on a firm ground, viz., Article 14 of the Constitution.296
According to the interpretation of Supreme Court, Article 14 which
guarantees equality before law can now be used to invalidate any law and
action which is arbitrary or unreasonable.
In a number of cases the Supreme Court has established that Article 14

contains the principle of reasonableness.297 It has been held that the
concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole
of fabric of the Constitution. Accordingly, every state action whether it be
the legislature or of the executive or of an authority under Article 12 shall
be struck down by the court if it does not comply with requirement of
294 AIR 1954 SC 224 (227).

295 AIR 1981 SC 561.
296 See M. P. Jain, Administrative Law, XVII ASIL (1981) 468.
297 E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, 38.
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reasonableness.298 Thus in Council of Legal Aid and Advice v. Bar
Council of India299 it was held that the rule framed by the Bar Council of
India which debars the persons of being enrolled as advocate who have
reached the age of 45 years is arbitrary and therefore unreasonable. On this
ground the Court struck down the rule. However, a similar rule was not
struck down in Haniraj L. Chulani (Dr.) v. Bar Council of Maharashtra and
Goa.300 In this Case Rule 1 of Maharashtra and Goa Council Rules did not
allow persons already engaged in any other profession, such as in medical
profession to be enrolled as Advocate. The validity of such provision was
challenged on ground of excessive delegation. The Supreme Court held that
the impugned provision was not vitiated on ground of excessive delegation as
it effectuates the object, purpose and scheme of the Act, which lays down a
complete code and provides enough guidelines. Hence it falls within the rule-
making power of the State Bar Council.
- In State of A.P. v. Mcdowell and Co.301 the Supreme Court clarified

that mere allegation of arbitrariness by itself is not sufficient ground
for striking down an enactment on the basis of Article 14, some
constitutional infirmity has to be shown for striking down a legislation.
Discrimination is a recognised ground of violation of Article 14 and an
Act which is shown to be discriminatory can be said to be arbitrary. A
legislation which is arbitrary is unreasonable.
- In Air India v. Nargesh Meerza,302 the validity of the service

regulation framed by Air India providing for the termination of services
of an Airhostess on her first pregnancy was challenged. The Supreme
Court held the regulation to be extremely arbitrary, unreasonable,
abhorrent to the notions of a civilized society and interfering with the
ordinary course of human nature. It is not a disability but one of the
natural consequences of marriage and immutable characteristic of
298 Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722, 741.

299 (1995) 1 SCC 232.
300 (1996) 3 SCC 342
301 (1996) 3 SCC 709.
302 AIR 1981 SC 1829.
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married life.303
Similar is the decision in the case of State of Maharashtra v. Chandr.

bhan304 in which the validity of Rule 151 (1) (ii) (b) of the Bombay Civil
Services Rules, 1939 providing Re. 1 as subsistence allowance after
conviction of a government employee even if his appeal is pending was in
question. The Supreme Court held it to be unreasonable and void. It
also stultifies the right of appeal and is unfair and unconstitutional. In
course of his judgment, Chinnappa Reddy observed : The award of
subsistence allowance at the rate of Re 1/- per month can only be
characterised as ludicrous.305
- In State of Maharashtra v. Raj Kumar,306 a rule framed by the

Government of Maharashtra provided for giving weightage to a
candidate who has passed S.S.C. from rural area in government
service.
The Supreme Court quashed the rule on the ground of

unreasonableness because in the opinion of the Court this had no relevance
with the object of the Selection of Candidates having aptitude to work in the
rural area.
Again, in Central Inland Water Transport Corporation v. Brojo Nath

Ganguly307, the rule which provided for termination of services of permanent
employee before the age of superannuation was held to be unreasonable,
opposed to public policy and Henry VIII Clause.
IX. Pragmatism
Judicial approach is not a pedantic and idealistic but a pragmatic
approach which must determine the standard of reasonableness. A
responsible administrative authority entrusted with the power of delegated
legislation must ordinarily be presumed to know what is necessary,
303 A. I. R. 1981 SC 1829.

304 A. I. B. 1983 SC 803.
305 A. I. R. 1983 SC 803.
306 A. I. R. 1982 SC 1301.
307 A. I. R. 1986 SC 1571.
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reasonable, just and fair. The validity of rules has to be adjudged by the
generalities of the cases they cover and not by the stray instances of errors
and irregularities discovered.
- Therefore, the test of reasonableness should be applied in the context

of lifes realities. Such were the observations made by the Supreme
Court in Maharashtra State Board of S. H. S. E. v. Paritosh,308
where rule 104 provided : No candidate shall claim, or be entitled to
revaluation of his answers or disclosure or inspection of the answer
books or other documents as they were treated as most confidential.
This rule was challenged but the Supreme Court held it valid.
Similarly, in Narain Iyer v. Union of India,309 the Supreme Court
washed off its hands from the task of scrutinising the reasonableness
of the telephone rates fixed by the government.
X. Oppressiveness
Where a rule is manifestly unjust, caparicious, inequitable or partial in
operation it can be invalidated on the ground of unreasonableness. In
Indravadan v. State of Gujarat,310 Rule 6 (4) (i) read with 6 (4) (iii) {c)
provided that a Civil Judge (Senior Division) after completing 48 years of age
will not be eligible for consideration for promotion to the post of Assistant
Judge. The Supreme Court held the said provision as arbitrary and
unreasonable.
Again, in Meenakshi v. University of Delhi,311, for the purpose of

getting admission to Medical College in Delhi, a condition of schooling for
last two years in any school in Delhi was prescribed. The Supreme Court
held this requirement to be arbitrary and unreasonable.
- The Supreme Court propounded : Rules are intended to be

reasonable, and should take into account the variety of circumstances
in which those whom the rules seek to govern bind themselves. We are
of the opinion that the condition in the prescription of the
308 A. I. R. 1984 SC 1543.

309 A. I. R. 1976 SC 19&6.
310 A. I. R. 1986 SC 1035.
311 A.I.R. 1989 SC 1568.
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qualifications for admission to Medical College in Delhi should be
construed as not applicable to students who have to leave India with
their Parents on the Parent being posted to a Foreign Country by the
Government.312
Ultra vires act : Effect

If an action is declared ultra vires, it is null and void and of no legal
effect whatsoever. It has no legal leg to stand on.313 Once it is declared by the
Court that some administrative act is legally a nullity, the situation is as if
nothing has happened. The statutory authority cannot travel beyond the
power conferred and any action without power has no legal validity. It is ab
initio void and cannot be ratified.314
Concluding Remarks
- Generally speaking, any ground on which judicial review maybe
justified can logically be classified as a branch of ultra vires
doctrine315; here we have dealt with straight forward cases where ultra
vires was the solitary or principal justification for judicial review.
- On the whole, judicial review of delegated legislation is more of

symbolic value rather than of much practical value as a control
mechanism over delegated legislation. To make judicial control more
efficacious it is necessary that delegating legislation does not confer
power in two broad and generalized language. In such a case the Court
may find extremely difficult to hold a rule as falling outside the scope
of power delegated. This is what is envisaged by the doctrine of
excessive delegation. In that case, delegated legislation will be ultra
vires if it goes beyond basic policy underlying the Parent Act passed by
312 Ibid.
313 Wade, Administrative Law, 1988, p. 41.
314 Bar Council of India v. Surjeet Singh, A.I.R. 1980 SC 1612; Marathawad University v.
Sheshrao, A.I.R. 1989 SC 1582.
315 Garner, Administrative Law, 125 (3rd Ed.); See also M.G. Pandke v. Municipal
Council,-Hinganghat, A.I.R. 1993 SC 142. In this case the doctrine of occupied field
has been propounded to determine the validity of delegated legislation. The Court
has held that as the legislative field qua retirement age is already occupied by
statutorily recognised code, Municipal Council could not make bye-laws contrary
thereto for the purpose.
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the legislature.
III. JUDICIAL REVIEW

Scope - The delegated legislation does not fall beyond the reach of the
judicial review power of the Supreme Court and the High Courts. In fact it
can be doubly reviewed.
Firstly, to ensure the consistency with the provisions of the Constitution;
and,
secondly to enforce the compliance with the statutory policy objectives,
purposes and limitations.
No rule, order, regulation or notification can contravene and violate any

of the constitutional limitations. The rule making power must be "Subject to
the provisions of the Constitution", and should be conferred on the
Government under a valid law. What the Legislature cannot do, it cannot
delegate to the Government; and consequently, the Government cannot do. If
the Act under which delegated legislation is framed is ultra vires the power
of the Legislature, the delegated legislation cannot at all be sustained. When
the Act is unconstitutional, the rules cannot be saved.316
The delegated legislation is void ab initio, if the statutory delegation in

the particular case is constitutionally impermissible, and is void on the
ground of the excessive delegation for being in violation of the rule against
delegation of the essential legislative function, or for subverting the scheme,
policy and intendment of the parent law. The raison d' etre for this ground
of voidness of delegated legislation is that the rule that limits the competence
of the Legislature, limits the competence of the administrative authority as
well; and the former cannot delegate, if delegation implies giving away of the
essential legislative function and results in the legislative abdication. Subject
to the permitted wide limits of the delegation, and the established
316 HarakChandv. Unionof India, AIR 1970 SC 1453; Mohammad Faruk v State of
Madhya Pradesh, AIR 1970 SC 93; Shamaraov. Union Territory of Pondicherry, AIR
1967SC 1480; Devi Das Copal Krishan v. State of Punjab AIR 197 SC 1985; Hamdard
Dawakhana v. Unionof India, AIR 1960 SC 554; Raj Narain v. Patna Administration
Committee, AIR 1954 SC 569.
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presumption of validity of the statute, the delegated legislation may be
assailed on amongst other the following grounds, namely.
(i) That it is ultra vires the statute, or in opposition to the policy and
purpose of the statute;
(ii) That, it is void for excessive delegation;
(iii) That, it is irregularly framed, and that in framing it the prescribed

mandatory conditions are not complied; and,
(iv) That, it contravenes any of the constitutional limitations.
ULTRA VIRES RULE :

The rules, regulations and notifications should not be ultra vires the
statutorily delegated authority as determined by the judicial interpretation of
the relevant provisions of the given statute317. Neither the scope of the rule-
making power can be extended by the rule-making authority, nor the rules
framed after stretching the statutory limits be deemed intra vires the
delegated authority.
i. They should be intra vires the objects, purposes and the policy of
the enactment.
ii. They should sub serve, or carry out the statutorily stated purposes.
iii. They must not falsify the legislative intendment, and must not
travel beyond the scope of the statute.
iv. They must not be inconsistent with the provisions of the Act;
should conform to the standards, follow the guidelines laid out by
the Legislature, and should strictly carry out the policy of the
statute.318
317 Daya v. Joint Chief Controller of Imports and Exports, AIR 1962 SC 1796; Hamdard
Dawakhana v. Union of India, supra; Darshan Singh v. State of Punjab, AIR 1954 SC
83; Adarsh Industrial Corporation v. Marketing Committee, AIR 1962 Punjab 426;
Venkatanarayna v. State of A.P., AIR 1960 A.P. 171.
318 Venkateswara v. Government ofA.P., AIR 1966 SC 629; D.S. Mills v. Union of India,
AIR 1959 SC626; Sivarajanv. Unim of lndia, AIR 1959SC556; Shahabuddin Khanv.
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v. They must not transgress the area carved out by the statute, and
should not violate its scope and purpose.
vi. They must provide what the Legislature is required to prescribe;

and the rule-making authority should make no serious substantial
omission.319
vii. No rule should make a provision inconsistent with, or in conflict

with the statute.320 Any conflict whether perceptible or
imperceptible must make a rule void for being ultra vires the
statute.321 If the rule is consistent, and not in conflict with the
parent Act, but is inconsistent with a law already in force, it is not
void.322
viii. When challenged on the ground of the substantive ultra vires, the
court can examine their contents without, of course, looking into
the policy and wisdom of their subject-matter, except indirectly, to
ensure conformity with the legislative intendment.
ix. It can see if the statutory instrument in its pith and substance
falls within the scope of the delegated power, and within the import
of the language and policy of the statute read as one piece. It does
not strike a statutory instrument, merely because, it does not
mention the particular section of the relevant particular statute if it
is justified otherwise.
x. The non-recital of the relevant section, and the fact that it has been
made under the delegated authority does not make it invalid.323
xi. If the statutory source of the delegated power is shown to be

established, the fact that the statutory instrument inaccurately
State of U.P., AIR1960 All. 373; Munsha Singh Dhaman Singh v. State of Punjab, AIR
1960 Punj. 217.
319 Chief Commissioner of Ajmer v. R.S. Ddni, AIR 1957 SC 304.
320 Manepalli Venkatanarayanav. State of A.P., AIR 1960 AP171;Ram Prasad v. State,
AIR 1952 All. 843.
321 Mohammad Hussain v. State of A.P., AIR 1962 97, Adarsh Industrial Corporation v.
Market Committee, AIR 1962 Punj. 526.
322 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79.
323 Brajendra Kumar v. Union of India, AIR 1961 Cal. 317.
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purported to be made under any other provision does not render
the delegated legislation inoperative.
xii. Any inaccuracy in the recital in the preamble to the statutory

instrument should be ignored, if the competence of the Government
or the administrative authority (delegate) is otherwise beyond
doubt.324 It is rendered invalid only if it defeats the statutory policy;
and reduces the legislative objects and purposes to ad absurdum,
or otherwise nullifies their effect.325
xiii. The doctrine of severability applies as a practical rule of the judicial

review of delegated legislation; and only such of the rules framed in
a statutory instrument are deemed void as are shown to be ultra
vires the statute. The whole statutory instrument is struck down, if
the objectionable rules cannot be severed.
Subject to their basis of validity and given the competence of the rule-
making authority, the rules cannot be found inoperative. Any excessive
exercise of discretion by the authority ex facie does not render them
bad.
Coir Industry Act, 1953 - Under Section 26(1)
The Central Government can make rules for carrying out the
purposes of the Act, subject to the condition of the previous
publication.
- Sub-section (2) enumerates the matter in respect of which rules

can be made in particulars without prejudice to the generality of
the power conferred under Sub-section (1). Among other things
rules can be made for registration of the manufacturers of coir
products, and articulation of conditions of such registration and
the grant and issue of licences, forms of application etc.
- The licensing rules framed under this Act provided that no
324 Afzal Ullah v. State of U.P., AIR 1964 SC 264; Balakotiah v. Union oflndia, AIR 1958
SC 232.
325 Raj Narain v. Patna Administration Committee (supra pp. 247,250-251).
Page | 131
person could export coir fibre, yam or coir products without a
licence, and a person who in any three preceding years exported
not less than 55 tons of coir products (excluding coir ropes)
would be entitled to a licence; and, if at all, he could be
registered as an exporter "if during the period of twelve months
immediately preceding the date of application, a minimum
quantity of 25 tons of coir yam had been ranked in a factory
owned by the applicant and registered under the Factories Act,
1948".
- It was held that the exercise of the rule-making power was not
marked by excessive discretion on the part of the rule-making
authority.
- While attacking the rules it was contended that by prescribing a

quantitative test instead of a qualitative test the rule-making
authority ousted the small dealers in coir products from the
export trade. This created a room for a wide discretion in
matters of control and regulation of trade in coir export. It was
also pointed out that the contents of the rules went contrary to
the recommendations of an Ad Hoc Committee for External
Marketing set up by the Coir Board.
- The Court observed that it was not a case of the exercise of

excessive discretion by the rule-making authority when it was
competent to make rules in the way it did. It could go against
the recommendations of the Ad Hoc Committee, because, it was
finally for this body to decide which test would meet the
requirements of public interest, and which method would be the
most expedient in controlling the industry in the national
interest.326
The court has no jurisdiction to question the wisdom of the rule making
authority. The rules cannot be attacked on the general plea of
326 P.V. Sivarajan v. Union of India, AIR 1959 SC 556.

Page | 132
unreasonableness like the bye-laws framed by a local body. The
reasonableness of the rules etc. can be examined only when it is necessary to
do so for purposes of Articles 14 and 19 of the Constitution.
IV. Procedural irregularities

- The rule of procedural ultra vires too provides only limited
articulated means of judicial control of delegated legislation. It is
necessary that the rule-making authority should be exercised in the
manner indicated by the Legislature. It is incumbent upon the rule
making authority that while framing the rules it should follow the
prescribed procedure. Any disregard of a mandatory provision
renders the rules nugatory. Any non-compliance with the
directions, if they are deemed mandatory; and non-existence of the
conditions precedent to the rule-making must render a statutory
instrument invalid.
- The question whether a statutory provision prescribes a mandatory

rule, or is merely directory in character too is a question of law,
requiring interpretation of the relevant statutory provisions and
assessment of their nature., scope, purpose, scheme and
intention327.
- The purpose for which the provision is made, the nature of the
legislation, the legislative intention, the degree of inconvenience or
injustice to persons resulting as the provision is read in one way or
the other, the relation of the particular provision to other provisions
dealing with the same subject, the language of the provision and
other relevant considerations e.g. general practice, have all to be
taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory :
327 Sitapur Municipality v. Prayang Narain, AIR 1970 SC 58.

Page | 133
1. The Raza Buland Sugar Co. Case.328
FACTS - The appellant Co. owned two sugar factories and a number of
buildings in respect of which the respondent Municipal Board of Rampur
levied a water tax. The company contended that the levy was illegal as the
Board had not framed the proposals, and the rules in accordance with the
mandatory procedural provisions laid down in the U.P. Municipalities Act,
1916.
ALLEGATIONS - It was alleged that the proposal and the draft rules were
not published in the prescribed manner in a local paper published in Hindi
as required statutorily, and instead they were published in a local Urdu
daily. It was urged that the publication in a local paper published in Urdu
was not in accordance with the mandatory provision that the publication
"shall...be in a local paper published in Hindi"; and therefore, the tax was not
levied according to law, no matter other conditions were complied with.
RESPONDENTS - The respondent contended that the provision in respect of

the publication was directory in character, and had been substantively
complied with. It was pointed out that there was no local paper regularly
published in Hindi.
HELD - The Court held that the appellant's arguments could not be
accepted; and ruled that what was mandatory was publication of the rules
etc. The provision that the publication would be in a paper published in
Hindi was only directory.
- The publication was intended to give previous publicity, and

appearance of the proposal of, and rules in the Hindi version in a
local Urdu paper was the substantial compliance with the statutory
requirement. It fully met the condition of previous publicity; and
satisfied the purpose of giving an opportunity to the residents for
filing objections, and of being heard. Wanchoo J. in the course of
his judgment said :
328 Raja Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895. See also Sitapur
Municipality v. Prayag Narain, AIR 1970 SC 58.
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"The question whether a particular provision of a statute which on the face of it
appears mandatory in as much as it uses the word "shall"as in the present
caseor is merely directory cannot be resolved by laying down any general
rule; and depends upon the facts of each case, and for that purpose the object
of the statute in making the provision is the determining factor So long as
publication is made in substantial compliance with the manner provided
therein it would serve the purpose of the mandatory part of the section which
provides for publication."
- The statutory recognition of the substantial compliance with the

procedural conditions is often made by providing that after the
delegated legislation is formally approved by the Government and
published in the gazette it should be the "conclusive evidence" of
procedural regularity in making of the rules and the bye-laws framed
by the administrative authority, any directory procedural irregularity
notwithstanding.329 This shield is pierced, however, in case the
statutory instruments is ultra vires the delegated authority; and the
delegated legislation is "in complete lack of jurisdiction."330 331
2. The Banwarilal's Case.332

FACTS - The appellant assailed the validity of certain regulations
framed by the respondent State under the Mines Act, 1952. The
statutory authorisation required that before the regulation was made
the draft shall be referred to every Mining Board which is in the
opinion of the Central Government concerned with the subject dealt
with by the regulation; and the regulation "shall not be published until
such Board has had a reasonable opportunity of reporting as to the
expediency of making the same and as to the suitability of its
provision."
329 Berar Swedeshi Vanaspati v. Municipal Committee, Skcgaon, AIR 1962 SC 425; Beni
Prasad v. Jabalpur Improvement Trust, AIR 1978 MP191.
330 Trust Mai Lachmi Sialkot Biradri v. Amritsar Improvement Trust, AIR 1963 SC 976.
331 Bamoari Lai v. State of Bihar, AIR 1961 SC 849.
332 Banwarilal Agarwalla vs The State of Bihar, 1961 AIR 849, 1962 SCR (1) 33
Page | 135
ALLEGATIONS - It was contended that the impugned regulation was
made without such prior reference to any Mining Board.
RESPONDENT - The respondent State urged that the reference was

not made, because, in fact, no such Board then existed. Nevertheless,
it was contended that the regulation was invalid as the condition for
reference to the Mining Board was mandatory.
HELD - The Court sustained the regulation, and held it valid. On the
question whether a statutory provision was mandatory or directory in
character Das Gupta J. observed as follows :
" ..........no general rule can be laid down for deciding whether any
particular provision in a statute is mandatory meaning, thereby, that
non- observance thereof involves the consequence of invalidity, or only
directory, the non-observance of which does not entail the consequence
of invalidityBut in each case the court has to decide the legislative
intent to decide this we have to consider not only the actual words
used, but the scheme of the statute, the intended benefit to public of
what is enjoined by the provisions and the material danger to the public
by the contravention of the same."
- Applying these tests it has been held that the provisions for
consultation "with such other authority as it may deem desirable"
before an authority made a general order in respect of placing of the
bus stands was directory.333 The condition of laying also seems to
be directory.334
- However, the conditions of obtaining concurrence of the

Government,335 and publication of statutory instruments are, on all
hands, deemed mandatory in view of express statutory provisions
333 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79.

334 Munrta Lai v. H.R. Scott, AIR 1955 Cal. 451.
335 Radha Krishna v. State, AIR 1952 Nag. 387.
Page | 136
in the General Clauses Act, 1897; and the Harla's Case 336 The
Court can investigate into the contention of non-satisfaction of
conditions precedent to the making of a statutory instrument. If the
instrument contains a recital that the conditions are satisfied the
court will presume that the statutory condition was met, and the
order was regularly made.
- The burden to prove that the conditions precedent are not satisfied
falls on the person who asserts their non-satisfication. On the other
hand, in the absence of such recital the rule-making authority
should establish that they are in fact satisfied by making
depositions in an affidavit or by other means :
3. The Swadeshi Cotton Mills Case.337

FACTS - The appellant challenged the constitutionality of Section 3 of
the U.P. Industrial Disputes Act, 1947; and also two general orders
made there under for non-fulfillment of certain conditions precedent to
their making. The statutory provision laid down that an order could be
made, if in the opinion of the State Government it "is necessary, or
expedient so to do for securing the public safety or convenience, or the
maintenance of pubic order or for maintaining employment".
ALLEGATIONS - It was alleged that the State Government had made

the order which did not recite that the stated conditions existed. The
non-recital would per se mean that the Government formed no
opinion, and as such the condition precedent to the making of the
orders was not fulfilled. Therefore, the making of the orders was not a
valid exercise of the delegated authority.
RESPONDENT - In reply the Government at first filed no affidavit

stating their position; but when asked by the Supreme Court deposed
that the notifications containing the impugned orders "were issued
336 See also Raja Buland Sugar Co. v. Rampur Municipality (supra pp. 294-295.)
337 Swadeshi Cotton MiUs Ltd. v. State Industrial Tribunal, AIR 1961 SC 1381.
Page | 137
only after all aspects of the matter were fully considered by the State
Government, and it had satisfied itself that it was necessary and
expedient to issue the same for the purpose of securing, The Court
accepted the affidavit.
HELD It was held that the alleged condition precedent to the making
of the orders was in fact satisfied. Answering the objection for the non
recital, the Court held that the defect was not fatal to the validity of
the orders. Wanchoo J. in the course of his Judgment of the Court
declared the law as follows :
"It is true that power may have to be exercised subject to certain
conditions precedent, but that does not assimilate the action of the
subordinate executive authority to something like a legislative procedure
which must be followed before a bill becomes a law where certain
conditions precedent have to be satisfied before a subordinate authority
can pass an order (be it executive, or of the character of subordinate
legislation), it is not necessary that the satisfaction of those conditions
must be recited in the order itself, unless the statute requires it, though
it is most desirable that it should be so, for in that case the presumption
that the conditions were satisfied would immediately arise, and burden
would be thrown on the person challenging the fact of satisfaction to
show that what is recited is not correct."
- The subordinate legislation thus does not carry the same degree of
immunity which is available with respect to a statute. It may be
questioned on any of the grounds on which plenary legislation is
questioned. In addition it may also be questioned on the ground
that it does not conform to the statute under which it is made.
- It may further be questioned on the ground that it is contrary to

some other statute. It can also be impugned on the ground of
arbitrariness, if it is so arbitrary that it could not be said to be in
conformity with the statute, or that it offends Article 14 of the
Constitution. Nonetheless, all the grounds that may be urged
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ordinarily cannot be available against a statutory instrument e.g.
notification.
- It can be questioned on the ground that it does not conform to

constitutional requirements, or that it offends some constitutional
limitation provision. Yet it cannot be questioned in the manner of
an administrative action on the ground of violation of principles of
natural justice or reasonableness338. When a quasi-legislative
discretionary power is required to be exercised in the public
interest, the Court may require the Government to exercise that
power in a reasonable manner in accordance with the statute, and
in accord with the spirit of the appropriate and relevant
constitutional provision :
4. The Indian Express Newspapers Case:

FACTS - The Central Government gave, by issuing a notification, dated
15 July, 1977, total exemption from import duty in respect of news
print. Four years later this total exemption was cut short by another
notification, dated 1 March, 1981; and a duty at the rate of 15% ad
valorem was imposed on imported newsprint for the year 19811982.
Soon thereafter, one other notification was issued in supersession of
the earlier '81 notification on 28 February, 1982, and thereby, an
auxiliary duty totalling Rs 825 per tonne of newsprint was additionally
imposed. The levy of this auxiliary duty on newsprint was hiked
further, already high price of newsprint. In consequence the price of
newspaper went up and circulation came down.
ALLEGATIONS - The petitioner Express Newspapers and others moved

the Supreme Court, by a petition challenging the notification on the
ground of infringement of press freedom. The contention was that the
administrative action notification was unconstitutional. It was
submitted that the enormous increase in the price of newsprint and
338 Indian Express (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (542); Ram
Chandra Kachardas Porwal v. State of Maharashtra, AIR 1981 SC 1127; Tulsipur
Sugar Co. Ltd. v. Notified Area Commissioner, AIR 1980 SC 88.
Page | 139
inflationary conditions raised production cost, and thereby, caused
loss of capacity of the industry to absorb the increased duty levied
under the successive notifications. The Government had not taken into
consideration the capacity of the newspaper industry to bear the duty
load, and therefore, the levy was unreasonable. It was urged that the
duty was violative of the freedom to continue to run the industry under
Article 19(l)(g)/(6), and in particular, Article 19(l)(a)/(2) of the
constitution.
RESPONDENT - The respondent Government replied the petitioner's

contentions; and submitted that the levy of duty was necessitated by
the need for augmentation of revenues and in the public interest.
HELD - The Constitution Bench of the Court declared that the

impugned notifications were administrative law, even though all the
grounds that might be urged against an administrative order could not
be available against them. In all circumstances like one before it, the
Court directed that the Government at all material times should be
conscious of the fact that it is dealing with an activity protected by
Article 19(l)(a) of the Constitution, which was vital to our democratic
existence. The discretion under the statute [the Customs Act, 1962]
was not unfettered; and could only be exercised under reasonable
restrictions clause of Art. 19(2). The Government must not be guided
by irrelevant considerations.
- A statutory instrument cannot also be invalidated for its wisdom or

lack of the legislative policy. But when that policy is expressed in
language of law the same can be reviewed on ground of violation of
any constitutional provision.
Void for unconstitutionality There is no general power of judicial

review of delegated legislation. The judicial review can be made on grounds
on which it can be undertaken in respect of statutes, namely,
(i) want of legislative competence ; due to violation of distribution of
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powers rule;
(ii) contravention of a clause of the Bill of Rights; and,
(iii) Infringement of other constitutional limitations e.g. restrictions

in the interests of inter-State trade, commerce and intercourse.
- What the Legislature cannot do, it cannot authorise its delegate to
do. It can delegate the legislative power only in respect of a matter
which falls within its legislative competence. If an Act is ultra vires
its power, the rules framed there under must also be deemed ultra
vires without a separate review for them. But, if a law passes the
test of constitutionality the statutory order or other subordinate
legislation passed there under, should be reviewed. It is possible
that the latter is unconstitutional.339
- The rules, regulations, orders, notifications are laws covered by the
definitional clause of Article 13(3) (a), and therefore, must be void, if
they contravene any provision of Part III the Fundamental Rights
Chapter (the Bill of rights)340. The fetters upon the legislative power
must fetter the power of the rule-making. The condition of valid
rule-making is non contravention of Clause (2) of Article 13. The
guarantees of procedure established by law, and curtailment of
freedoms : speech and expression, assembly, association,
movement, and trade and profession, except by laws saved under
reasonable restrictions clauses of Article 19(2) - (6), and others are
not any the less weak in respect of delegated legislation than in
relation to the statutory law.
- The rules, regulations, orders or notifications can be reviewed

rigorously under the various clauses of the Bill of Rights in the
same manner as in relation to any enacted law, nay, perhaps more
vigorously The Indian Express Case [supra pp. 294, 297-298].
Other grounds of reviewThere is, however, no general power of

judicial review of delegated legislation on grounds of reasonableness
339 Bennett Coleman Co. Ltd. v. Union of India, A.I.R. 1973 S.C. 106; Dwarka Parsad
Laxminarain v. State of U.P., A.I.R. 1954 S.C. 224.
340 Indian F,xpress Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (544);
Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430; Hamam Singhv. Regional Trt
Authority, A.I.R. 1954 S.C. 190; Dwarka Prasad Laxmi Narain v. State of U.P., A.I.R.
1954 S.C. 224
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substantive or procedural. The statutory rules cannot be
invalidated on a plea of unreasonableness in the manner of the bye-
laws of a local authority :
5. The Mulchand's Case341
FACTS - In exercise of the rule-making power in respect of the prescription of

the mode of appointing an arbitrator and procedure of arbitration
proceedings under the Cooperative Societies Act, the Government of Bombay
framed a rule providing, thereby, that no party would be represented by a
legal practitioner. The petitioner who was a member of a cooperative bank,
and had a dispute involving a large sum asked for a better representation
through a lawyer. The request having been rejected by the arbitrator, he
objected to the unreasonableness of the rule. The objection was held
unsound.
HELD - The Bombay High Court held that a provision for not to be heard at
all might violate a substantial right, but the right to be represented through
a lawyer was a matter of procedure. The denial of this latter right could not
be objected to in the absence of a statutory right in this respect.
V. SAVING CLAUSES :
The challenge at the second level on the ground of an improper exercise
of the rule-making power is made relatively difficult, if not impossible by
declaring that the rules when made have the effect "as if enacted in the Act."
The effect of this attempt at immunity from judicial review of the rules
declared to have such effect has occasionally been considered. The Income-
tax, Act, 1922, declared in Section 59(5) as under :
"Rules framed under this section shall be published in the Official

Gazette, and shall thereupon have the effect as if enacted in this Act."
- The Supreme Court construed this clause in the Ravulu
Subbarao's Case342 343, following the Lockwood's decision344 of the
341 Mulchand v. Mukand, A.I.R. 1952 Bom. 296: See also K.J. Thomas v. Commissioner of Income-
tax!, A.I.R. 1968 Ker. 6.
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British House of Lords. It held that Rule 2 of the Income-tax Rules
could not be attacked as being inconsistent with the provisions of
the Act, or as being void for having been made in exercise of a
power under excessive delegation.
- The challenge on ground of vires could not be made. It was said

that the words "as if enacted in the Act" equated the rule with a
statutory provision. It could be presumed that the Legislature
ratified it, and it became part of the statute. On another occasion in
the Karmithravi Tea Estates Case206 the effect of Rule 24 of the
Income-tax Rules was examined. The Rule prescribed that in the
case of a tea company 60%, of its income would be deemed
agricultural income, and, for that matter, excluded from the total
income taxable under the Income-tax Act. The Court held that the
proportion so prescribed should be taken to be prescribed by the
Act for purposes of definition of agricultural income under Article
366(1) of the Constitution/Section 2(1) Income-tax Act, 1922.
Notwithstanding this relative immunity the construction based on
the Lockwoods decision cannot be stretched to its illogical limits.
Indeed the authority of the English case is doubted, and the rigor of
343 Ravulu Subba Rao v. Commissioner of Income-tax, A.I.R. 1956 S.C. 604-An
application for registration of a firm was rejected by the Income-tax Officer on the
ground that it was not signed by all the partners themselves, as one of them had
gone on a piligrimage and before leaving had authorised another partner to sign it on
his behalf under a power of attorney; and the authorised partner had signed for
himself and on behalf of the absentee partner. The order of rejection was based on R.
2 of the Income-tax Rules which required that the application should be signed by
the partners personally. The Court held that the rule had to be complied with, and
any inquiry into its vires was not possible.
344 Institute of Patent Agent v. Lockwoods, 1894 S.C. 347 Under the Patents, Designs
Trade Mark Act the Board of Trade was empowered to pass such general rules as it
thought expedient for the purposes of the Act. Such rules were "subject......as
hereinafter prescribed," to be of the same effect as if they were contained in the Act,
and were required to be judicially noticed. The Board of Trade made certain rules for
registration of patent agents which were, a required under the clause "subject as
hereinafter prescribed to be laid before Parliament. The rules prescribed that all
registered patent agents would pay an annual subscription, and prescribed a penalty
for any one who called himself a patent agent but was not registered or had refused
to pay the subscription and also for the removal of his name from the register. In an
action for a declaration and injunction on the grounds that the rules were ultra vires
the statute, the House of Lords held that the rules should be deemed to have been
enacted in the Act. This precluded any inquiry into their vires."
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the "as if enacted" clause is already softened in the Yaffes case in
England. In relation to a "scheme" declared to be something "as if
enacted in this Act" the House of Lords observed that it was not -
per se embodied in the Act. If found inconsistent with the statutory
provision, it was void ab initio having been framed without
authority. Closely following this weakening of the Lockwood's
authority, it has now been held in this country that a rule declared
to have the effect "as if enacted in the Act" is always open to the
challenge on the ground that it is unauthorised.345
- The clause does not preclude judicial review on other grounds. The
rules protected by this clause cannot be attacked only on the
ground of statutory excessive delegation. They can be challenged as
being ultra vires the statute, and on such other grounds on which
a legislation can generally be invalidated. It is given its fullest scope
in Section 2(4) of the English Emergency Act, 1920. It is provided
therein that the regulations framed under the Act should be taken
to be free from the requirements of the Statutory Instruments Act,
1946. The provision is as follows :
'The regulations so made shall have effect as if enacted in this Act, but
may be added to, altered, or removed by resolutions of both Houses of
Parliament, or regulations made in like manner, and subject to the like
provision : as the original regulations, and regulations made under this
section shall not be deemed to be statutory rules"
- Often specific provisions are enacted prohibiting raising of any

issue relating to the validity of the statutory rules and orders. This
sort of prohibition can seldom be presumed, and can be justified
only on the basis of a specifie statutory provision and the special
and exceptional circumstances of an emergency legislation, or on
the ground of state necessity. An illustration of such a saving
clause was contained of the Defence of India Act, 1962:
"No order made in exercise of any power conferred by, or under
345 Stateof Kerala v. K.G. Abdin, AIR 1965SC Itrulel4A framed under the Madras
General Sales Tax Act, 1939; Chief Commissioner v.R.S.Dani, A.I.R. 1957 S.C. 304.
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this Act shall be called in question in any court."
VI. STATUTORY RULES, IF BINDING

- Delegated legislation is not executive instruction : and is 'law' passed on
authority of the Legislature. It derives sanction from the legislative power
vested in the Legislature. When framed properly, it is "law" for purposes of
Article 13(2)/(3)(a), and Articles 302, 303 and 304346. It binds the
administration; and an administrative authority having framed the rules
cannot refuse to follow them, or modify them for their application to any
given case347.
- Mandamus can be issued for enforcement, or their observance. The framing

of the rules for prescribing the procedure for exercise of an executive power
ousts the discretion to follow any ad hoc procedure; and the Government
should not act, except in accordance with the procedure prescribed by such
rules.
For instance, if the rules prescribe the manner of a settlement of fisheries
after auction by the Government conducted by the commissioner and on
submission of a report by him containing his recommendation, the
Government cannot dispense with the auction procedure and the
commissioner's recommendation, and settle a fishery by order.348
346 Chinla Lingam v. Government of India, A.I.R. 1971 SC 474 (476); Ouruswami v. State
of Mysore, A.I.R. 1954 S.C. 592.
347 Chinta Lingam v. Government of India, A.I.R. 1971 S.C. 474. v. State of Assam v.
Keshab,(l953) S.C.R.865.
348 State of Assam v. Keshab, (1953) S.C.R. 865.
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CHAPTER 9
CONCLUSION
Delegated or subordinate legislation means rules of law made under

the authority of an Act of Parliament. Although law making is the function of
legislature, it may, by a statute, delegate its power to other bodies or
persons. The statute which delegates such power is known as Enabling Act.
By Enabling Act the legislature, lays down the broad guidelines and detailed
rules are enacted by the delegated authority. Delegated legislation is
permitted by the Indian Constitution. It exists in form of bye rules,
regulations, orders, bye laws etc.
There are many factors responsible for its increase: Parliament and
State Legislature are too busy to deal with the increasing mass of
legislations, which are necessary to regulate daily affairs. Modern legislation
requires technicality and expertise knowledge of problems of various fields,
our legislators, who are politicians are not expected to have such knowledge.
Subordinate legislations are more flexible, quickly and easily amendable and
revocable than ordinary legislation, in case of failure or defect in its
application. When contingencies arise which were not forseeable at the time
of making it, subordinate legislation can pass an act quickly to handle them.
Quick, effective and confidential decisions are not possible in body of
legislatives. So, executives are delegated with power to make rules to deal
with such situations. These are the main factors, besides many others, for
the fast increase in delegated legislation today.
T h e l e g islation which is been done by the state organs other than the
legislature is called as delegated legislation, entrusted upon the legislature.
In other words delegated legislation means the legislation made by the
subordinate agency with the help of legislative power. The separation of
powers states that the legislative powers can be exercised only by the
legislature in the state. Other than the legislature no other organ of the
government can control or interfere the power of legislatures to make laws.
The liberty and freedom of the individuals cannot be protected in a free
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democracy
1. Delegation of some part of legislative powers has become a

compulsive necessity due to the complexities of modern legislation.
2. Essential legislative functions cannot be delegated by the legislature.
3. Essential legislative functions means laying the policy of the Act and
enacting that policy into a binding rule of conduct. In other words the
legislature must lay down legislative policy and purpose sufficient to
provide a guideline for the administrative rule making.
4. After the legislature has exercised its essential legislative functions,

it can delegate non-essentials, however numerous and significant
they be.
5. In order to determine the constitutionality of the delegation of

legislative powers, every case is decided in its special setting.
6. Courts have travelled to the extreme in holding very broad general

statements as sufficient policy of the Act to determine the question
of constitutionality.
7. There are various forms of administrative rule making. However, the

parameter for determining the question of constitutionality is the
same, namely, the legislature must lay down the policy of the Act.
A number of general principles which emerge from the various

judgments relating to delegation of legislative power are as follows :
(1) The Constitution confers law-making power on the Legislature and as such
the said function cannot be delegated by the legislature to the Executive.
The legislature can neither create a parallel legislature nor destroy its
legislative power.
(2) Delegation of legislative power is permissible provided this does not amount
to abdication of legislative function and policy is laid down by the
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legislature.
(3) The legislature cannot delegate essential legislative function. The essential
legislative function consists in the determination of the legislative policy
and making it a binding rule of conduct.
(4) If the legislature has performed its essential function of laying down the
policy of law, there is no constitutional bar against delegation of subsidiary
or ancilliary powers in that behalf to the executive for making the
legislation effective, useful and complete.
(5) A statute delegating law-making powers to the executive shall be invalid if

it lays down no principles and provides no standards for guidance to the
rule-making body.
(6) The legislative policy can be formulated as broadly and with as little or
much detail as the Legislature thinks fit. It is not necessary that the policy
must be express, it may be implied as well. It may be gathered from history,
preamble, title, scheme, statement or objects and reasons. Guidance may
be found anywhere in the statute.
(7) Power to repeal does not make delegation valid if otherwise it is excessive,
impermissible or unwarranted.
(8) When a statute is challenged on the ground of excessive delegation, it must

satisfy two tests : (i) whether it delegates essential legislative function or
power, and (ii) whether the legislature has enunciated its policy and
principle for the guidance of the delegate.
(9) Whether the legislature has performed the essential legislative function and
laid down the policy and the delegation is permissible or not depends upon
the circumstances of the statute under consideration.
(10) Delegated legislation may take different forms. However, these principles
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apply to all forms of delegation viz., conditional legislation, subordinate
legislation, supplementary legislation, sub-delegation etc.
Delegated legislation in the changed socio-economic complexion has become

a constituent element of legislative power as a whole.349 Broad delegations of
legislative power are upheld where they relate to taxation, socio-economic
legislation and elected bodies. The doctrine of excessive delegation and
legislative policy are safety valve necessary for functioning of Democratic
Government in developing Countries
349 Tata Iron and Steel Co. Ltdy. Their Workmen, AIR 1972 SC 1918, 1922.
Page | 149
BIBLIOGRAPHY
1. Kumar, Narender; Nature and Concepts of Administrative Law, 1st

Ed., Allahabad Law Agency, Faridabad, 2011.
2. Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford
University Press, New Delhi, 2006.
3. Kesari, U.P.D ; Administrative Law ,15th Edition Central Law

Publications ,Allahabad,2005
4. D.D. Basu 7th Edition 2006, Administrative Law
5. S. P. Sathe, Administrative Law, 7th Edition, LexisNexis

Buttersworth Wadhwa, Nagpur.
6. Bharadvaja B (2007 ) Delegated Legislation in India Meenakshi

Prakashan New Delhi Takwani C.K. (2007) Lectures on
Administrative Law. Eastern Book Company, Lucknow.
7. Delegated Legislation and Exercise of Delegated Powers in India:

With Special Reference to Customs and Central Excise Laws : Some
Aspects, Somaiya Publishers, Delhi
8. Chawla P S (2007) Meaning of Delegated Legislation & Judicial

Control of Delegated Legislation, UILS Punjab University,
Chandigarh
9. Kumar, Narender; (2011) Nature and Concepts of Administrative

Law, 1st Ed., Allahabad LawAg ency, Faridabad,
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10. Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed.,
Oxford University Press, NewDelhi, 2006.5. Kesari, U.P. (2005)Ad
ministrative Law , 15th Editi on Central Law Publications ,Allahabad
INTERNET /WEB RESOURCES
1. www.legalservicesindia.com
2. www.shareyouressays.com
3. www.scribd.com
4. www.lawyersclubindia.com Cases Referred
5. www.Manupatra.com
6. www.indiakanoon.com
7. www.scconline.com
8. www.wikipedia.com
9. www.sscrn.com
10. www.articlesbase.com
11. www.legalquest.in/index.php/students/.../415-sub-delegation.html
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FACULTY OF LAW,
JAI NARAIN VYAS UNIVERSITY, JODHPUR
DISSERTATION

_______________________________________________
NON-DOCTRINAL RESEARCH
SUBMITTED IN LIEU OF PAPER
VII DISSERTATION FOR LL.M.
FINAL YEAR SESSION 2016-17
____________________________________________________________________________
UNDER SUPERVISION SUBMITTED BY

Prof. V.K. Bagoria Shubham Modi
Assistant Professor LL.M. Final Year
Faculty of Law, JNVU Administrative law
Roll No- 3
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1. Views of Senior advocate and Advocates with regard to delegated
legislation
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VIPUL DHARNIA
ADVOCATE
9413257026
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Delegating law-making powers to the executive
Question 1 - Whether a judicial function can be delegated or not ?
No, judicial functions cant be delegated. Recently in 2017 it

was held in Black Pearl Hotels (Pvt) Ltd vs. Planet M Retail Ltd350,
Supreme court held that a judicial functioning has to be done in

a judicial manner, observed the Supreme Court while holding
that Section 33(2) of the Stamp Act does not empower the judge of the
high court to direct the officer of the high court to enquire and to find
out to direct the officer of the high court to enquire and to find out the
nature and character of the document.
A three-judge bench opinion- A three-judge bench headed by

Justice Deepak Mishra, In Black Pearl Hotels (Pvt) Ltd vs. Planet M
Retail Ltd, observed that the duty of determination of an instrument
or, to explicate, to determine when there is a contest a particular
document to be of specific nature, the adjudication has to be done by
the judge after hearing the counsel for the parties. It is a part of judicial
function and hence, the same cannot be delegated.
350 (2017)4SCC498
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Question 2 what is the Henry VIII clause whether any autonomous
university have such clause in their Act or not ?
Sometimes, power is conferred on the government to modify the existing

statute for the purpose of removing difficulties so that it may be brought into
full operation. When the legislature passes an Act, it cannot foresee all the
difficulties. Which may arise in implementing it. Legislature, therefore,
introduces in the statute a removal of difficulty clause envisaging that
government may remove any difficulty that may arise in putting the law into
operation.
Henry VIII Clause.This type of delegating clause has acquired the

nickname of Henry VIII Clause as personifying "executive autocracy. Henry
VIII was the King of England in the 16th Century. During his regime he
enforced his will by-using instrumentality of Parliament for the purpose of
removing difficulties which came in his way. The origin of removal of
difficulties clause is thus linked with the name of Henry VIII.
As it is well settled fact that JNVU is autonomous body and Jai Narain
vyas university act having Henry VIII clause for removal of difficulties.
Clause envisages that university may remove any difficulty that may arise in
future.
*JAI NARAIN VYAS UNIVERSITY, JODHPUR
(REMOVAL OF DIFFICULTIES) ORDER, 1963 (See Section 39)
Whereas certain difficulties have arisen in giving effect to the

provisions of *Jai Narain Vyas University, Jodhpur Act, 1962
(Rajasthan Act 17of 1962);
Now, therefore, in exercise of the powers conferred by section 39

of the said Act, the State Government makes the following order.
(1) This order may be called *Jai Narain Vyas University,
JODHPUR (REMOVAL OF DIFFICULTIES) ORDER, 1963.

(2) It
shall be deemed to have come into force on the 16111 day of July, 1962,
and shall remain in force for a period of two years.
1. In this Order, unless the context otherwise requires
(1) Actmeans *Jai Narain Vyas University, Jodhpur Act, 1962 (Act 17 of
1962);
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(2) Section means Section of the Act;
(3) 'Special Officer means Special Officer appointed under section 37; and
(4) 'Vice-Chancellor' means Vice-Chancellor of the University appointed under
section 11.
2. Notwithstanding anything contained in sections 4, 8, 13, 22, 24, 27, 28

and 35(1) or any other provisions of the Act, the ViceChancellor may, by
an order in writing while this order is in force and until the Statutes or
Ordinances, as the case may be, are duly made and brought into force,
(a) exercise the powers of the University
(i) to institute, subject to the approval of the State Government,
professorships, readerships, lecturerships and other teaching posts
required by the University;
(ii) toappoint or recognise persons as professors, readers or lecturers or

otherwise as teachers of the University; and
(iii) to appoint officer of the University :
Provided that no person shall be permanently appointed or recognized

under parts (ii) and (iii) above until his appointment has been confirmed
by the Syndicate;
Notification F. (98) Edu./Cell-III/62 dated 29 October 1963. Published

in Rajasthan Gazette Extraordinary, Part IV A, dated 29 October
1963.
Provided further that the Vice-Chancellor may authorise the Special

Officer, for the purpose of subsection (1) of section 35, to execute
contracts on behalf of the University and such contracts shall be lodged
with the Special Officer;
(iv) to acquire, hold and manage property, movable and immovable,

including trusts and endowments for the purpose of the University;
(b)specify the authorities responsible for organising the teaching recognised

by the University;
(c) provide for all or any matters specified in clause (c), (g) and (h) of section
21 and associate with or admit any college or institution within the
municipal limits of the city of Jodhpur to the privileges of the University
under section 5;
(d)provide for all or any matters specified in section 23;
(e) maintain or approve and recognise hostels and halls;
(f) exercise the powers of the University to establish the University Fund
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and prescribe the moneys to be credited to the said Fund and the
matters to which the said fund shall be applied and appropriated,
prepare a statement of financial estimates of the University for the
current year, direct the investment and placing of the fund in proper
custody and authorise the Special Officer or any other officer or person
to operate upon the said fund with such powers of credit and withdrawal
therefrom as may be specified.
3. All orders or directions made by the Vice-Chancellor under this Order
shall be deemed to have been validly made, and all actions taken in
pursuance of such directions or orders shall be deemed to have been
lawfully taken, notwithstanding anything inconsistent therewith in the
Statutes and Ordinances finally.
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QUESTION - 3- Whether due to shift to welfare state, there has
been increase in the administrative functions of the country. After
independence there was a lot of confusion regarding delegation of
legislative power to the executive or not ?
Delegated legislation is one of the most inevitable parts of

administration. Along with being most significant, it was one of the most
debatable issues in India. According to the traditional theory, the function of
the executive is administering the law enacted by legislature and in ideal
state the legislative power must be exclusively dealt by the legislature. 351 But
due to increase in administrative function and shifting of the concept to
welfare state, they have to perform certain legislative functions.352
STATUS BEFORE CONSTITUTION:
A lot of decisions from privy councils to Supreme Court deal with the
same. This discipline can be read into three times - pre independence, Post
independence and post constitution. In pre constitution era when Privy
Council was the highest court of appeal from India till 1949 question of
constitutionality of delegation of legislative power came before it in case of
Queen v Burah353. The act in dispute gave certain powers to Lt Governor
namely - the power to bring the act in effect, determine what laws were to be
applicable and power to extend the application of the act (Sec. 9). The act
was enacted to remove garo hills from the jurisdiction of civil and criminal
courts and extend all or any provisions of the Act in Khasi, Jaintia and Naga
Hills in Garo Hills. . The question was whether giving Lt Governor power to
extend the application of the law is delegation of power? Privy Council
351 SP Sathe, Administrative Law, p 39 (3rd Edn., Lexis Nexis Butterworths)

352 Takwani, Lectures of Administrative Law p 23 (3rd Edn., Eastern Book Company).
353 1878 3 AC 889
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observed that Indian legislature is not an agent or delegate as against
Calcutta High Court354 but was intended to have plenary powers of
legislation, and of the same nature of the parliament itself. It was observed
that Indian legislature had exercised its judgment as to the place, person,
law, powers and what the governor was required to do was to make it
effective upon fulfilment of certain conditions. This is called conditional
legislation which was upheld by the court. The question of permissible limits
of legislative power became important in Independent India. Just on the eve
of independence, the federal court had held in Jatindra Nath v Province of
Bihar355 that there could be no delegated legislation in India beyond
conditional legislation. Provincial Govt. could by notification was allowed to
extend the time for which the Bihar Maintenance of Public Order Act 1948
was to remain. The court held this power non-delegable.
There was a lot of confusion regarding delegated legislation after these

cases.356 The question of moot was whether the legislature of Independent
India should be restricted to such rules or should it be given greater
freedom? The next step of confusion was whether India should follow
American model where unlimited power cannot be delegated or like that of
England where as much power can be delegated? It was left open to the
courts to follow either of the models because of similarities between the US
and UK with India. Further, Indian constitution is silent on the issue
whether legislature can delegate or not and hence, such issues could not
possible be decided with keeping constitution as the basis.
AFTER CONSTITUTION: IN RE DELHI LAWS ACT CASE: ANALYSIS OF

FACTS AND JUDGEMENT:
In order to remove doubts regarding the validity of a number of laws

which contained such delegation, the president of India under article 143 of
the Constitution asked the Court's opinion on the three questions submitted
for its consideration and report.357 The three questions are as follows :-
(1) Was section 7 of the Delhi Laws Act, 1912, or any of the
354 Empress v Burah and Book Singh ILR 3 Cal 64

355 (1949) 2 FCR 595
356 Supra Note 1, at 42.
357 Id.
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provisions thereof and in what particular or particulars or to what
extent ultra vires the Legislature which passed the said Act ?
Section 7 of the Delhi Laws Act, mentioned in the question, runs as

follows
"The Provincial Government may, by notification in the official gazette,

extend with such restrictions and modifications as it thinks fit to the Province
of Delhi or any part thereof, any enactment which is in force in any part of
British India at the date of such notification."
This act delegated to the provincial Govt. the power to extend to Delhi
area with such restrictions and modification any law in force in any part of
British India. This was held valid by the majority.
(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or

any of the provisions thereof and in what particular or particulars or to
what extent ultra vires the Legislature which passed the said Act ?
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as

follows :-
"Extension of Enactments to Ajmer-Merwara. - The Central Government

may, by notification in the official gazette, extend to the Province of Ajmer-
Merwara with such restrictions and modifications as it thinks fit any
enactment which is in force in any other Province at the date of such
notification."
This act delegated the power to the Govt to extend to the province with
such modification and restriction as it may deem fit. This was also held valid
by the court.
(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of

the provisions thereof and in what particular or particulars or to what
extent ultra vires the Parliament ?
Section 2 of the Part C States (Laws) Act, 1950, runs as follows :-
Page | 170
"Power to extend enactments to certain Part C States. - The Central
Government may, by notification in the Official Gazette, extend to any Part C
State (other than Coorg and the Andaman and Nicobar Islands) or to any part
of such State, with such restrictions and modifications as it thinks fit, any
enactment which is in force in a part A State at the date of the notification and
provision may be made in any enactment so extended for the repeal or
amendment of any corresponding law (other than a Central Act) which is for
the time being applicable to that Part C State.
- Part C were states directly under the control of the Central

Govt without having a legislature of their own and hence, Parliament
had to legislate for them. This act delegated the power to the Central
Govt to extend to Part C States with such modification and restriction
as it may deem fit any enactment which was in force in any Part A
states. It also empowered the Govt to repeal or amend any
corresponding law which was applicable to Part C States. Sec 2 of the
Act was held valid but the power to repeal or amendment of any
corresponding law which was for the time being applicable to part C
was void and was held to be excessive delegation.
ANALYSIS OF OPINION:
Seven judges presided over the case providing us with 7 different

opinions. The importance of the case cannot be under estimated in as much
as, on one hand it permitted delegated legislation while on the other it
demarcated the extent of such permissible delegation of power.358 The
question was on the limits to which legislature in India can delegate its
legislative power.
There were two extremist views put forth by the counsels: M C

Setalvad took the view that power of delegation comes along with the power
of legislation and the same does not result in abdication of the powers. The
other counsel took the view that there exist separation of powers in the
country and India follows delegates non potest delegare. Therefore, there is
an implied prohibition on delegation of power. As both the views were
358 Supra Note 2, at 70.

Page | 171
extremely extremist, the court took the middle view.
The Supreme Court took the following view and the 7 opinions
were based on the same:
Separation of power is not a part of Indian Constitution
Indian parliament was never considered as an agent of anybody.

Therefore doctrine of delegates non potest delegare is not applicable
Parliament completely cannot abdicate itself by creating a parallel

authority
Only ancillary functions can be delegated
There is a limitation on delegation of power. Legislature cannot delegate

its essential functions. Essential function involving laying down the
policy of the law and enacting that policy into binding rule of conduct.
Based on these views, the Supreme court gave 7 different views. There
was unity of outlook on two points: firstly, keeping the exigencies of modern
govt in view, Parliament and state legislatures have to delegate the power in
order to deal with multiple problems prevailing in India, as it is impossible to
expect them to come with complete and comprehensive legislation on all
subjects sought to be legislated on. Secondly, since the legislature derives its
power from the Constitution, excessive freedom like in the case of British
constitution cannot be granted and limitations are required.
Judges differed on the question as to what were the permissible limits

within which the Indian legislature could delegate its legislative powers. One
view propounded that the legislature can delegate to the extent to the limit it
does not abdicate its own power and have control over the delegate: that is it
must retain in its hands the ultimate control over the authority so as to be
able to withdraw the delegation whenever delegate did something wrong.
Second view propounded that the legislature cannot delegate its essential
functions which comprised the formulation of policy etc. That meant the
legislature should lay down the standards or policy in the delegating Act and
delegate may be left with power to execute the policy.
Page | 172
Fazl Ali, J conclusions regarding the case was:
(1) The legislature must normally discharge its primary legislative function
itself and not through others.
(2) is ancillary to and necessary for the full and effective exercise of its
power of legislation.
(3) It cannot abdicate its legislative functions, and does not become a
parallel legislature.
I. Power to Legislative Includes Power to Delegate
It was concurred upon that the intention that legislation should

essentially be enacted by the Legislature is manifested; the Legislature
cannot retire and leave the task of law making to any other body or class of
bodies. Therefore, delegation in respect of delegating law making authority by
one legislature to another is, by necessary implication, forbidden by the
Constitution.
It was claimed by the Attorney General, M C Setalvad that Parliament

could delegate because of the legislative power carried with it is power to
delegate which was reject out rightly by C.J Kania, Mahajan and
Mukherjea J.J opining that constitution has never per se warranted
delegation powers at any stage and agreed on the view that legislature can
however, conditionally legislate. . In doing so it may, in addition, lay down
conditions, or state facts which on being fulfilled or ascertained according to
the decision of another body or the execution authority, the legislation may
become applicable to a particular area. This was described as conditional
legislation
Bose J who was in favour of delegated legislation, also concurred with

the opinion above. However, Sastri and Das JJ, agreed to the contention
and differed from the other judges. Their decision was based on the theory of
Parliamentary sovereignty and observed that power to make law comes along
with the power to delegate.
This case was decided in 1951 and since then things have changed
drastically. It is now judicially conceded that power of delegation is
Page | 173
constituent element of legislative power; and the power resides in the
legislature.359 This is near to what the attorney general had contended that
time.
II. limits of Delegation
The position is that the legislative function in its true and intrinsic
sense cannot be delegated. Therefore what can be delegated are only the non
essential functions. Only functions ancillary to the essential functions of the
legislature. According to the opinion of J Mukhreaja - if the policy laid down
in an Act is in broad terms, the formulation of the details of the policy can
generally to be passed to the executive. Mahajan J commented that
essential matters cannot be delegated by the legislature. Kania CJ opined
that legislature cannot delegate to lay down policy underlying a rule of
conduct.
Discretion to make modifications and alterations in an Act while

extending it to a given area, and to effect consequential amendments or
changes in an existing law is again conditioned with the proposition that
essential functions cant be delegated. The question on amount of discretion
exercisable by delegated authority cannot be defined and is a moot question.
III. Delegation of power to make modifications and alterations
The questions stated in this case is already stated above. Most of the
judges answered these questions in affirmative. Only Kania C.J and
Mahajan J gave answers in negative way. They observed that only
legislature has the authority to modify and alter the law in any substantive
sense. Fazel Ali J, power to change necessary things is incidental to apply
the law. If modifications are done within the framework and does not change
the identity or structure no objection could be taken. Mukhreaja J observed
that modification does not mean change of policy but it is confined to
alterations which keeps the policy intact and introduces changes appropriate
to suit the local conditions. Bose J also was of the same opinion. In this way
majority felt that the executive authority could be authorised to modify but
359 DS Garewal v State of Punjab, AIR 1959 SC 512 (517).

Page | 174
not in essential and intrinsic sense.
IV. Repeal of Law
Power to repeal a law is essentially a legislative power and hence,

delegating that to the Govt. is at once ultra vires the power to delegate.
Fazl Ali, Das J and Sastri JJ held all the sections to be perfectly
valid. The majority based its opinion on the maxim expression unis est
exclusion alterious, and ruled that an express provision permitting delegation
contained in article 357 would mean uncontrolled legislation was not
permitted under the constitution. Essential functions could not be delegated
under any condition. The minority based its view of the theory of legislative
omnipotence of the British Parliament, and its reflection in the Australian,
the Canadian and the Indian Constitutional systems, which include power to
delegate legislative function, subject to the condition of non-abdiction.
According to me, the variance between the views of the minority and majority
was not materially different. To say that legislature should not abdicate its
power is similar as to say that the legislature should not delegate its
essential powers.
V. Impact of the in re Delhi Laws Act Case:
After In Re Delhi Laws Act, the question which arose was related to the
limits of delegation and the grounds for the same.
The first case was Gwalior Rayon Silk Manufacturing Co. v
Assistant Commissioner of Sales Tax10 wherein S 8(2)(b) of Central Sales
Tax Act. 1956 authorised levying of sales tax on interstate sales @ 10% or at
the rate applicable to sale or purchase of goods in that state whichever is
higher. This was challenged as excessive delegation on the grounds that no
policy was laid down in the parent act. The Act was upheld to be valid. J
Khanna gave the Standard Test - when legislature confers powers on an
authority to make delegated legislation it must lay down policy, principle or
strandard for the guideline for the authority concerned. J Matthew gave the
Abdication Test - As long as the legislature can repeal the parent act
conferring power on the delegate, the legislature does not abdicate its
Page | 175
powers. The majority refused to accept this test.
J Mathew, in the case of N K Papiah v Excise Commisioner11 held

the legislation valid based on his test. The question was whether the Act
which conferred power on the Govt. to fix the rate of excise duty12 and lay
them before the legislature was valid or not. Further in the case of Brij
Sunder v First Additional District Judge13 the court even allowed the
extension of future laws of another state to which the adopting state
legislature never had an opportunity to exercise its mind. In addition to this,
in registrar of Co-operative Societies v K Kanjambu14 upheld the Policy
and Guideline test. All these cases upheld the constitutional validity of the
Analysis and Conclusion:
The case has materially contributed in the development of the concept

of delegated legislation by clarifying certain areas of confusion. One of it was
laying down that British model of Delegated Legislation cannot be
implemented in India because of the difference of Constitution. Moreover, it
laid down that delegation is possible and necessary due to increase in
burden on the legislature and increase in administrative activities. This
cleared the confusion of conditional delegation and delegation. This case
increased the scope of the delegated legislation to the extent of ancillary
powers i.e. non abdication of own power and non-transferring of main and
essential functions. Majority judges were in favour of delegated legislation
except Mahajan J and Kania CJ who was emphasizing more on the
conditional 360 361 362 363 364 delegation. As the opposite Counsel built on the
argument of Sepration of power and the concept of non potest delegare, the
court observed that separation of power is not a part of Indian constitution.
Courts are clear on the status of delegated legislation being allowed.365 The
only question in courts regarding such cases is that whether the power
360 (1974) 4 SCC 98

361 (1975) 1 SCC 492
362 S 122 of Karnataka Excise Act
363 (1989) 1 SCC 561
364 (1980) 1 SCC 492
365 Agricultural market Committee v Shalimar Chemical Works (1997) 5 SCC 516.
Page | 176
delegated is excessive or within the ambit of the parent act.366
This case achieved 2 ends: (1) legitimized legislation of legislative

power by the legislature to administrative organs; (2) it imposed an outer
limit on delegation by the legislature. The case shows lack of judicial
consensus. The ghost of jatinder nath case was hovering over the judges who
presided on both these cases and they could not be expected to change their
opinion. In present India it is a well accepted concept and delegation of
power is allowed. The necessity for it was realised as the functions and
powers of administrative and legislative bodies increased and delegation was
felt as a need!
366 I P Massey, Admisitrative law, p 103 (7th Edn., Eastern Book Company)
Page | 177

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FACULTY OF LAW,

JAI NARAIN VYAS UNIVERSITY, JODHPUR

DELEGATED LEGISLATION & ITS JUDICIAL

UNDER SUPERVISION SUBMITTED BY

I recommend that above dissertation

Place Jodhpur Prof. V.K. Bagoria

I hereby declare that this dissertation entitled

The interpretations put forth are based on my

For the present dissertation, which I am

Place: Jodhpur (Shubham Modi)

I find no words of potency for expression my gratitude to

Further, I put on record my gratitude to Dr. Chandan Bala,

I express my gratitude to respected teachers of Law Faculty,

S.NO. PARTICULARS PAGE

12. Bibliography 148

14. NON-DOCTRINAL RESEARCH

a) Views of Senior Advocate and Advocates at Rajasthan High 151

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

LIST OF FOREIGN CASES

Legislative power of the Administration & Delegated Legislation means

The subordinate legislation, says Salmond, "is dependent on some

It thus follows that the authority which makes the legislation

1 Jurisprudence, 12th edn., 116.

Sir Cecil Carr defines Delegated legislation is a growing child called

Delegated LegislationExecutive Legislation

Delegated legislation may be distinguished from Executive Legislation.

It thus follows that the legislation made by the Executive in the

For instance, Ordinances promulgated by the President under Article

It may further be stated that while the source of delegated legislation is

2 Supra ,Jain & Jain

I. Delegated Legislation means the exercise of legislative power by an agency

Delegated legislation means legislation by authorities other than the

4 4th Edn., 44, 981-84

The word 'delegate' is distinguished from the term 'delegation'. While

The exercise by a subordinate agency of the legislative power, delegated to it

The expression is meant to have both the meanings. It may be stated

The Supreme Court in Hamdard Dawakhana v. Union of India10

"When the delegate is given power of making rules and regulations in

5 Salmond, Jurisprudence, 12th Edn., 116, quoted in Agricultural Marketing

The Donoughmore Committee on Ministers' Powers, appointed in England

1. The exercise of law-making power by the executive under the authority

II. SCOPE OF DELEGATED LEGISLATION

i) travel beyond it, or

11 See P.P. Craig, Administrative Law, 2007, 67.

While commenting on indispensability of delegated legislation Justice

Example, Article 372 of the Constitution authorizes the president of India to

13 AIR 1961 Supreme Court 332

III. TYPES OF DELEGATION OF LEGISLATIVE POWER IN INDIA

1. Skeleton delegation In this type of delegation of legislative power, the

2. Machinery type This is the most common type of delegation of legislative

i) The kind of forms

i) the powers mentioned above are given , or

Such type of delegation is commonly known as the Henry VIII Clause. An

i) public bodies of municipal kind

17 . A.I.R. 1951 S.C.332

IV. Essential characteristics of Delegated Legislation: