Features of Delegated Legislation in Britain, USA, and India with
Relevant Case Laws
Introduction
Delegated legislation, also known as subordinate legislation, involves the transfer of law-making
powers by the legislature to an executive authority, administrative agency, or other bodies. This
delegation allows governments to address technical details, accommodate changes, and respond
to emergencies while focusing the legislature’s attention on broader policy matters. While it is
essential for efficient governance, delegated legislation raises issues of constitutional validity,
accountability, and the potential for abuse of power. This essay elaborates on the features of
delegated legislation in Britain, the USA, and India, and examines their judicial responses
through case laws.
Delegated Legislation in Britain
The United Kingdom, with its uncodified constitution, operates under the principle of
parliamentary sovereignty. Delegated legislation is extensively used to fill in details and
implement Acts of Parliament efficiently.
Features of Delegated Legislation in Britain
1. Subordinate to Primary Legislation: Delegated legislation must
operate within the boundaries set by the enabling Act. It cannot
contradict or exceed the authority granted by Parliament.
2. Types of Delegated Legislation:
o Statutory Instruments: Most common form, used for detailed
regulations.
o Orders in Council: Issued by the Crown, often during
emergencies.
o By-laws: Made by local authorities or corporations for local
governance.
o Rules and Regulations: Framed by ministers under statutory
authority.
3. Parliamentary Scrutiny: Oversight mechanisms include:
o Affirmative Resolution Procedure: Parliament must approve
the legislation.
o Negative Resolution Procedure: Legislation takes effect
unless annulled by Parliament within a specific period.
o Joint Committee on Statutory Instruments: Reviews and
flags problematic regulations.
4. Judicial Control: Courts ensure that delegated legislation complies
with the parent Act and does not violate common law principles.
Judicial Approach and Case Laws
Attorney-General v. Wilts United Dairies (1921): The court
invalidated a levy imposed through delegated powers as it lacked
express statutory authorization.
Kruse v. Johnson (1898): Lord Russell stated that by-laws should be
reasonable and not oppressive or inconsistent with general law.
R v. Secretary of State for Social Services, ex parte Association
of Metropolitan Authorities (1986): Courts emphasized that
delegated legislation exceeding its statutory authority is invalid.
The British judiciary focuses on the ultra vires principle, upholding parliamentary sovereignty
while ensuring that executive actions remain within legal bounds.
Delegated Legislation in the USA
In the United States, delegated legislation emerges within the framework of separation of
powers. Congress delegates rule-making powers to administrative agencies, which are vital for
implementing complex policies and regulations.
Features of Delegated Legislation in the USA
1. Constitutional Basis: Delegated legislation is guided by Article I,
Section 1 of the U.S. Constitution, which vests legislative powers in
Congress.
2. Non-Delegation Doctrine: Congress cannot abdicate its legislative
powers entirely but may delegate with sufficient guidelines, known as
the intelligible principle.
3. Administrative Rulemaking: Governed by the Administrative
Procedure Act (APA), 1946, which ensures transparency,
accountability, and consistency in rule-making.
o Notice-and-Comment Rulemaking: Public participation is
integral to administrative rulemaking, allowing stakeholders to
comment on proposed rules.
o Judicial Review: Courts review rules for compliance with the
APA and statutory authority.
4. Checks and Balances: Congressional oversight, executive veto, and
judicial review maintain the balance of powers.
Judicial Approach and Case Laws
J.W. Hampton, Jr. & Co. v. United States (1928): The Supreme
Court upheld delegation, stating that Congress must provide an
"intelligible principle" for agencies to follow.
Panama Refining Co. v. Ryan (1935): The National Industrial
Recovery Act provision was struck down as it lacked clear standards for
delegation, violating the non-delegation doctrine.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
(1984): Established the Chevron deference, where courts defer to an
agency’s reasonable interpretation of ambiguous statutes.
The American system emphasizes transparency and public accountability while limiting the
scope of delegation through constitutional principles.
Delegated Legislation in India
India, a common law country with a written Constitution, provides for delegated legislation
within the framework of constitutional supremacy. Indian courts play an active role in
scrutinizing delegated legislation to prevent excessive delegation and protect fundamental rights.
Features of Delegated Legislation in India
1. Constitutional Recognition:
o Article 245 and 246 allow Parliament and state legislatures to
delegate legislative powers.
o Article 13 ensures that delegated legislation does not violate
fundamental rights.
2. Types of Delegated Legislation: Includes rules, regulations, orders,
by-laws, and notifications issued by authorities like the executive,
administrative bodies, or statutory boards.
3. Essential Legislative Functions Doctrine: Policy formulation and
essential legislative decisions cannot be delegated. Only administrative
or procedural aspects can be delegated.
4. Judicial Safeguards: Delegated legislation is subject to judicial
review to ensure it adheres to the enabling Act, does not violate
fundamental rights, and is not arbitrary or unreasonable.
Judicial Approach and Case Laws
In re Delhi Laws Act, 1912 (1951): The Supreme Court upheld
delegation but ruled that essential legislative functions, such as policy-
making, cannot be delegated.
Ajay Hasia v. Khalid Mujib Sehravardi (1981): Delegated
legislation must comply with the Constitution, including the protection
of fundamental rights.
Vasu Dev Singh v. Union of India (2006): Notifications exceeding
the powers granted by the parent Act were declared ultra vires.
D.S. Nakara v. Union of India (1983): Highlighted that delegated
legislation cannot be discriminatory or unreasonable.
Indian courts have developed a robust framework for reviewing delegated legislation, ensuring
that it respects constitutional principles and legislative intent.
Comparative Analysis
Aspect Britain USA India
Constitutional Parliamentary Separation of Constitutional
Framework Sovereignty Powers Supremacy
Limited to ultra Intelligible Principle Ultra vires,
Judicial Review
vires Doctrine fundamental rights
Public Extensive (Notice-
Minimal Evolving
Participation and-Comment)
Scope of Limited by non- Broad but with
Wide and flexible
Delegation delegation doctrine constitutional limits
Conclusion
Delegated legislation is indispensable for modern governance, allowing legislatures to delegate
detailed or technical matters to specialized bodies. However, it requires effective safeguards to
maintain constitutional balance and prevent misuse. Britain emphasizes parliamentary
sovereignty, while the USA upholds the separation of powers with strict limitations on
delegation. India, blending elements of both systems, has developed a unique approach that
balances delegation with constitutional safeguards. Judicial scrutiny in all three jurisdictions
plays a pivotal role in ensuring accountability and adherence to the rule of law.
