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E-Notes

Class : [Link].B IV Sem A+B+C

Paper Code : LLB-208

Subject : Administrative Law

Faculty Name : Ms. Arpita Sehgal

Unit-2

a.) Meaning and Concept of Delegated Legislation

Delegated legislation (also referred to as secondary legislation or subordinate

legislation or subsidiary legislation) is law made by an executive authority under
powers given to them by primary legislation in order to implement and administer
the requirements of that primary legislation. It is law made by a person or body
other than the legislature but with the legislature's authority. Often, a legislature
passes statutes that set out broad outlines and principles, and delegates authority to
an executive branch official to issue delegated legislation that flesh out the details
(substantive regulations) and provide procedures for implementing the substantive
provisions of the statute and substantive regulations (procedural regulations).
Delegated legislation can also be changed faster than primary legislation so
legislatures can delegate issues that may need to be fine-tuned through experience.
Legislation by the executive branch or a statutory authority or local or other body

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under the authority of the competent legislature is called Delegated legislation. It

permits the bodies beneath parliament to pass their own legislation .It is legislation
made by a person or body other than Parliament. Parliament, through an Act of
Parliament, can permit another person or body to make legislation. An Act of
Parliament creates the framework of a particular law and tends only to contain an
outline of the purpose of the Act. By Parliament giving authority for legislation to
be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of
Parliament), permit others to make law and rules through delegated legislation. The
legislation created by delegated legislation must be made in accordance with the
purposes laid down in the Act. The function of delegated legislation is it allows the
Government to amend a law without having to wait for a new Act of Parliament to
be passed. Further, delegated legislation can be used to make technical changes to
the law, such as altering sanctions under a given statute. Also, by way of an
example, a Local Authority have power given to them under certain statutes to
allow them to make delegated legislation and to make law which suits their area.
Delegated legislation provides a very important role in the making of law as there
is more delegated legislation enacted each year than there are Acts of Parliament.
In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created. There are several reasons why delegated
legislation is important. Firstly, it avoids overloading the limited Parliamentary
timetable as delegated legislation can be amended and/or made without having to
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pass an Act through Parliament, which can be time consuming. Changes can
therefore be made to the law without the need to have a new Act of Parliament and
it further avoids Parliament having to spend a lot of their time on technical matters,
such as the clarification of a specific part of the legislation. Secondly, delegated
legislation allows law to be made by those who have the relevant expert
knowledge. By way of illustration, a local authority can make law in accordance
with what their locality needs as opposed to having one law across the board which
may not suit their particular area. A particular Local Authority can make a law to
suit local needs and that Local Authority will have the knowledge of what is best
for the locality rather than Parliament. Thirdly, delegated legislation can deal with
an emergency situation as it arises without having to wait for an Act to be passed
through Parliament to resolve the particular situation. Finally, delegated legislation
can be used to cover a situation that Parliament had not anticipated at the time it
enacted the piece of legislation, which makes it flexible and very useful to law-
making. Delegated legislation is therefore able to meet the changing needs of
society and also situations which Parliament had not anticipated when they enacted
the Act of Parliament. A portion of law-making power of the legislative is
conferred or bestowed upon a subordinate authority. Rules & regulations which are
to be framed by the latter constitute an integral portion of the statute itself. It is
within power of parliament when legislating within its legislative few, to confer
suborbital administrative & legislative powers upon some other authority.
Subordinate legislation, is the legislation made by an authority subordinate to the
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sovereign authority, namely, the legislature. According to Sir John Salmond,

"Subordinate legislation is that which proceeds from any authority other than the
sovereign power and is, therefore, dependent for its continued existence and
validity on some superior or supreme authority." Most of the enactments provide
for the powers for making rules, regulations, by-laws or other statutory instruments
which are exercised by specified subordinate authorities. Such legislation is to be
made within the framework of the powers so delegated by the legislature is,
therefore, known as delegated legislation. Thus all law making which takes place
outside the legislature expressed as rules, regulations, bye laws, orders, schemes,
directions or notifications etc is termed as delegated legislation.

b.) Constitutionality of Delegated Legislation

The Legislature is quite competent to delegate to other authorities to frame the

rules to carry out the law made by it. In the case of D. S. Gerewal v. The State of
Punjab , K.N. Wanchoo, it was observed that there is nothing in the words of
Article 312 which takes away the usual power of delegation, which ordinarily
resides in the legislature. The words "Parliament may by law provide" in Article
312 should not be read to mean that there is no scope for delegation in law made
under Article312…." In the England, the parliament being supreme can delegated
any amount of powers because there is no restriction. On the other hand in
America, like India, the Congress does not possess uncontrolled and unlimited
powers of delegation. In Panama Refining Co. v. Rayans, the supreme court of the

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United States had held Position in the USA: Two phenomena operate in the USA
namely—1. Separation of Power 2. “Delegatus non potest delegare”. Position in
England: In England, the Parliament is Supreme, unhampered by any constitutional
limitations with wide legislative powers on the executive. Parliament being
supreme and it power to legislate being unlimited, there is nothing to prevent
Parliament from delegating its legislative power to the executive officers or other
subordinate bodies. In England, the practice of delegating legislative power has
certainly been facilitated by the close fusion of the legislative and executive power
resulting from the development the cabinet system of government in England.
Position in India In Queen v. Burah wherein the Privy Council had validated only
Conditional Legislation and therefore as per its reasoning delegated legislation is
not permitted. The administration of civil and criminal justice within the said
territory was vested in such officers as the Lieutenant Governor may from time to
time appoint. Again in King v. Benoari Lal Sharma Conditional legislation was
again applied by the privy council wherein the validity of an emergency ordinance
by the Governor-General of India was challenged inter alia on the ground that it
provided for setting up of special criminal courts for particular kinds of offences,
but the actual setting up of the courts was left to the Provincial Governments which
were authorized to set them up at such time and place as they considered proper.
The Judicial Committee held that "this is not delegated legislation at all. It is
merely an example of the not uncommon legislative power by which the local
application of the provisions of a statute is determined by the judgment of a local
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administrative body as to its necessity." The Privy Council held that “Local
application of the provision of a state is determined by the judgment of a local
administrative body as to its necessity.” As regards constitution of the delegation
of legislative powers the Indian Legislature cannot be in the same position as the
prominent British Parliament and how far delegation is permissible has got to be
ascertained in India as a matter of construction from the express provisions of the
Indian Constitution. It cannot be said that an unlimited right of delegation is
inherent in the legislature power itself. This is not warranted by the provisions of
the Constitution and the legitimacy of delegation depends entirely upon its being
used as an ancillary measure which the legislature considers to be necessary for the
purpose of exercising its legislative powers effectively and completely. The
legislature must retain in its own hands the essential legislative functions which
consist in declaring the legislative policy and laying down the standard which is to
be enacted into a rule of law, and what can be delegated in the task of subordinate
legislation which by its very nature is ancillary to the statute which delegates the
power to make it. Provided the legislative policy is enunciated with sufficient
clearness or a standard laid down the courts cannot and should not interfere with
the discretion that undoubtedly rests with the legislature itself in determining the
extent of delegation necessary in a particular case. In the case of Sikkim v.
Surendra Sharma it was held that ‘All Laws in force’ in sub clause (k) of Art. 371
F includes subordinate legislation. Criticisms of Delegated legislation Delegated
legislation is criticized for its various main defects which are as follows:- • It has
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been suggested that by allowing delegated legislation it has allowed to make and
amend laws. • It lacks democracy as too much delegated legislation is made by
unelected people. • Delegated legislation is subject to less Parliamentary scrutiny
than primary legislation. Parliament therefore has a lack of control over delegated
legislation and this can lead to inconsistencies in laws. Delegated legislation
therefore has the potential to be used in ways which Parliament had not anticipated
when it conferred the power through the Act of Parliament. • Delegated legislation
is the lack of publicity surrounding it. When law is made by statutory instrument
the public are not normally notified of it whereas with Acts of Parliament, on the
other hand, they are widely publicized. One reason for the lack of publicity
surrounding delegated legislation is because of the volume of delegated legislation
made and this result in the public not being informed of the changes to law. There
has also been concern expressed that too much law is made through delegated
legislation.
Reasons for Growth of Delegated Legislation
1. Bulk of law comes from the administrators. Also Legislation is occupied with
important policy matters and rarely finds time to discuss matters of details.
2. Filling in Details of legislation- The executive in consultation with the experts or
with its own experience of local conditions can better improvise. Also legislation
has become highly technical because of the complexities of a modern govt.

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3. Need for flexibility:- Ordinary legislative process suffers from the limitation of
lack of experiment. A law can be repeated by parliament itself, if it required
adjustment administrative rule making is the only answer between two sessions.
4. Meeting Emergency Situations
5. When Govt. action required discretion – rule making power of administrative
agencies is needed when the government needs to have discretion to carry out the
policy objectives. 6. Direct participation of those who are governed is mere
possible in delegated legislation.
c.) Control Mechanism
i. Legislative Control on delegated legislation While in the context of increasing
complexity of law-making, subordinate legislation has become an important
constituent element of legislation, it is equally important to see how this process of
legislation by the executive under delegated powers, can be reconciled with .the
democratic principles or parliamentary control. Legislation is an inherent and
inalienable right of Parliament and it has to be seen that this power is not usurped
nor transgressed under the guise of what is called subordinate legislation. It can
control the following:
1. Normal Delegation: - a) Positive: - where the limits of delegation are clearly
defined in the enabling Act b) Negative: - does not include power to do
certain thing (these not allowed) 2. Exceptional Delegation: - a) Power to
legislate on matters of principle (policy) b) Power is amend Act of
parliament (In re Delhi laws Acts)
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2. ii. Judicial control can 1) Doctrine of ultra virus and 2) Use of prerogative
writs. iii Procedural Control Over Delegated Legislation (A Prior
consultation of interests likely to be affected by proposed delegated
Legislation:- From the citizen's post of view the most beneficial safeguard
against the dangers of the misuse of delegated Legislation is the
development of a procedure to be followed by the delegates while
formulating rules and regulations. In England as in America the Legislature
while delegating powers abstains from laying down elaborate procedure to
be followed by the delegates. But certain acts do however provide for the
consultation of interested bodies and sometimes of certain Advisory
Committees which must be consulted before the formulation and application
of rules and regulations. This method has largely been developed by the
administration independent of statute or requirements. The object is to
ensure the participation of affected interests so as to avoid various possible
hardships. The method of consultation has the dual merits of providing as
opportunity to the affected interests to present their own case and to enable
the administration to have a first-hand idea of the problems and conditions
of the field in which delegated legislation is being contemplated. Prior
publicity of proposed rules and regulations: - Another method is antecedent
publicity of statutory rules to inform those likely to be affected by the
proposed rules and regulations so as to enable them to make representation
for consideration of the rule-making authority. The rules of Publication Act,
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1893, [Link] for the use of this method. The Act provided that
notice of proposed 'statutory rules' is given and the representations of
suggestions by interested bodies be considered and acted upon if proper. But
the Statutory Instruments Act, 1946 omitted this practice in spite of the
omission, the Committee on Ministers Powers 1932, emphasized the
advantages of such a practice. Publication of Delegated Legislation: -
Adequate publicity of delegated legislation is absolutely necessary to ensure
that law may be ascertained with reasonable certainty by the affected
persons. Further the rules and regulations should not come as a surprise and
should not consequently bring hardships which would naturally result from
such practice. If the law is not known a person cannot regulate his affairs to
avoid a conflict with them and to avoid losses. The importance of these laws
is realized in all countries and legislative enactments provide for adequate
publicity. iv Judicial control over delegated legislature is exercised at the
following two levels:- 1. Delegation may be challenged as unconstitutional;
or 2. That the Statutory power has been improperly exercised. The
delegation can be challenged in the courts of law as being unconstitutional,
excessive or arbitrary. The scope of permissible delegation is fairly wide.
Within the wide limits, delegation is sustained it does not otherwise; infringe
the provisions of the Constitution. The limitations imposed by the
application of the rule of ultra virus are quite clear. If the Act of the
Legislature under which power is delegated, is ultra virus, the power of the
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legislature in the delegation can never be good. No delegated legislation can

be inconsistent with the provisions of the Fundamental Rights. If the Act
violates any Fundamental Rights the rules, regulations and bye-laws framed
there under cannot be better. Where the Act is good, still the rules and
regulations may contravene any Fundamental Right and have to be struck
down. Besides the constitutional attack, the delegated legislation may also
be challenged as being ultra virus the powers of the administrative body
framing the rules and regulations. The validity of the rules may be assailed
as the stage in two ways: — (i) That they run counter to the provisions of the
Act; and (ii) That they have been made in excess of the authority delegated
by the Legislature. The method under these sub-heads for the application of
the rule of ultra virus is described as the method of substantive ultra virus.
Here the substance of rules and regulations is gone into and not the
procedural requirements of the rule marking that may be prescribed in the
statute. The latter is looked into under the procedural ultra virus rule. When
the Court applies the method of substantive ultra virus rule, it examines the
contents of the rules and regulations without probing into the policy and
wisdom of the subject matter. It merely sees if the rules and regulations in
their pith and substance are within the import of the language and policy of
the statute. The rules obviously cannot go against the intent of statute and
cannot be inconsistent with the provisions of the Act. They are framed for
giving effect to the provisions of this Act and not for nullifying their effect
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and they should not be in excess of the authority delegated to the

rule making body. Delegated legislation should not be characterized with
an excessive exercise of discretion by the authority. The rules cannot be
attacked to the general plea of unreasonableness like the bye-laws framed by
a local body. Reasonableness of the rules can be examined only when it is
necessary to do so for purpose of Articles 14 and 19 of the Constitution.
d.) Sub-Delegation

The expression 'subordinate legislation' means the act of making statutory

instruments by a body subordinate to the Legislature and in exercise of the power,
within specific limits, conferred by the Legislature. The term also connotes and
covers the statutory instruments themselves. Legislation is either supreme or
subordinate. The former is that which proceeds from the supreme or sovereign
power in the State, and which is therefore incapable of being repealed, annulled or
controlled by any other legislative authority. Subordinate legislation is that which
proceeds from any authority other than the sovereign power, and is, therefore,
dependent for its continued existence and validity on some superior or supreme
authority. The idea is to supplement Acts of Supreme Legislative Body by
prescribing detailed rules required for their operation. Principle Underlying Sub-
Delegation The basic principle in this respect is that the sub-delegate should not be
given unanalyzed and unguided legislative power. Like delegation, sub-delegation
is also subject to the doctrine of excessive delegation. Where a statute itself

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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. Sub-Delegation of legislative powers when a statute confers some legislative
powers on an executive authority and the further delegates those powers to another
subordinate authority of agency; it is called 'sub delegation.' Thus, a chain of
delegation gets created in which the origin of the power flows through the Parent
Act. Sub-delegation is the further delegation of power by a delegate to another
person or agency. The basic principle in this process is summarized by the maxim
'Delegatus Non Potest Delegare, Such sub-delegation can’t be made without the
duly authorization by the parent statute under which the delegation has been taken
place

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