File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Understanding The Concept Of Delegated Legislation And Its Control With Relevant Case Laws

The principle of delegated legislation and its control are examined in this article. Legislative authority is transferred from the legislature to the executive branch or other entities through a procedure known as delegation. The establishment of laws and regulations that effectively handle particular and technical challenges is made possible by this transfer of authority. However, issues with the possible misuse of this authority and the absence of democratic accountability in the process come up.

Delegated legislation must thus be legitimate and accountable, which calls for strong control systems. In order to evaluate the efficacy of the various kinds of control in preventing possible abuses and preserving a balance between executive effectiveness and democratic monitoring, this article explores the various mechanisms of control, including parliamentary scrutiny, judicial review, and public engagement.

When the functions of legislation, is entrusted to organs other than the legislature, then the legislation made by such organ is called 'delegated legislation'.

According to Salmond, legislature is either supreme or subordinate and the subordinated authority is dependent for its continuation and existence on the superior authority.

Delegated legislation is also known as 'sub-ordinated legislation', because the legislative power of the organ which makes it are limited by the statue which confers such power and thus it is valid only if it is within the limits of the statute.

In Chief Settlement commissioner vs. Om Prakash, 1969 AIR 33, 1968 SCR (3) 655 court held that legislative power held by the executive must be derived from the parent act and to be exercised within the limits so prescribed.

Example of delegated legislation- the Essential Commodities Act, 1955, states that central government is empowered to declare any commodity as essential commodity, thus the statute delegated its power to the central government.

Parent act and child legislation
The statute enacted by the legislature, conferring the legislative power to its subordinated authority is called 'parent act'.

Whereas, the rules made by the subordinated authority, by using power conferred on them is called 'child legislation'.

Reasons for the growth of delegated legislation
  • Pressure on Parliament: parliament is already overburdened, and it is impossible for parliament to make laws on each and every matter, and hence it tends to delegated its power to subordinated authority.
  • Flexibility: parliament amendment is a very slow and complicated process but on the other hand amendment in the delegated legislation is way easier and less complicated process.
  • Experiments: executives can experiment via delegated legislation, that is they can make laws, implement them for some time and if the laws are not in public interest or tend to violate any other law, then they can be removed. For example, in traffic matters of the road, certain rules may be implemented for some time and could be removed if not effective.
  • Emergency: in times of emergency, wide powers are given to executives to deal with the situation and hence delegated legislation is way more effective.
  • Technicality in matters: with advancements in society, things have become more twisted, technical, and complicated, and thus legislation needs an expert for every topic.

Classification of delegated legislation
There are mainly four types of delegated legislation classification:
  1. Title based classification
    An act may grant the authority the ability to enact laws, orders, or bye-laws. The variety of legislative provisions that may exist under multiple names has basically no limitation.

    Different forms of delegated legislation are:
    • Central act to central government.
    • Central act to state government
    • Central act to statutory body.
    • State act to state government
    • State act to statutory bodies

  2. Discretion based classification
    A discretion may be conferred on the executive to bring the act into operation on fulfilment of certain conditions, such legislation is called 'conditional legislation'.

    Conditional legislation tends to provide control (not law-making power) and also specifies that the legislation will come into force only after fulfilment of conditions provided by the statute.

    In conditional legislation, legislature makes law that is 'full and complete' and no legislative function is delegated to the executive. The only duty of the executive is to apply the legislation upon fulfilling the conditions prescribed by the statue.

    In the famous case of M.P High court bar association vs. Union of India, 2004, the Madhya Pradesh reorganisation act, 2000 empowered the state government to abolish state administrative tribunal. The validity of provision was challenged on ground that there was excessive delegation of power on state. Court held that, the act enacted by parliament was full and complete and no legislative power was delegated to the executive, they were mainly to decide the existence of the tribunal.
  3. Purpose based classification
    Parent act may also empower the executive to delegate its power further to its subordinate authority, and this is known as 'sub-delegation'. When parent statute confers legislative power to executive and executive further delegates it to another subordinated authority, then it is called sub delegation. The parent act is allowed to produce descendants to a maximum of four or five degrees. 'Delegatus non potest delegare', is a latin maxim which mean that "no delegated powers can be further delegated".

    Exception to Delegatus non potest delegare are:
    •  Express power of sub delegation
    • Implied power of sub delegation

    Where a statute has itself authorised the subordinate authority to further delegate its power, then no question arises as to the validity of delegated legislation.

    In the case of Central Talkies Limited vs. Dwarka Prasad, 1961, AIR 606 1961 SCR (3) 495 where the U.P control of rent and eviction act stated that no suit shall be filed for the eviction of tenant without the permission of District Magistrate or any other person authorised by him, the power to further delegate wads challenged on ground of excess delegation.

    Court held that since the power to further delegate arises from the statue itself, hence it is not excess delegation.
  4. Authority based classification
    Purpose based classification: This classification of delegated legislation may be based on the nature and extent of power conferred and purpose for which such power can be exercised. There are various powers that is delegated such as:

    � Power to bring an act into force - In the case of A.K. Roy v. Union of India, 1982 SCC (1) 271 the Supreme Court ruled that the government has the authority to put the Act into effect and that this power should not be exercised excessively.

    For example: the Legal Services Authority act, Section 1(3) states that "it shall come into force on such date as central government may prescribe".
    • Power to include and exclude: this means addition or removal of any person, commodity, item etc to the act. For example: Minimum Wage act empowers the state government to add or remove any employment for which minimum wage should be fixed.
    • Power to fill in details: usually legislation makes 'skeleton legislation' which needs to be filled by the subordinate authority.

      In skeleton legislation the central or state legislation prepares only a structure of law and leaves the details to be filled by the subordinated authority. For example, Under the Essential commodities act, substantive law-making power is given to the central/state government, and in this way, they fill in the gaps by way of delegated legislation.
    • Power to Modify: sometimes the executive is given the power to modify or change the law without changing the very nature of the law. This has been explained further in the case of Rajnarain Singh vs. The Chairman, Patna Administration (1954) 1954 AIR 569 , in this case the court held that subordinate authority can make incidental changes to the law but modification should not be substantial in nature and if done such changes would be invalid.
A famous case involving the transfer of legislative authority was In Re The Delhi Laws Act, 1951. The case established the rule that while the authority to amend already-existing laws can be assigned to a subordinate authority, but the authority to amend the fundamental structure of a law cannot. In other words, a subordinate authority may be given the authority by the legislature to make modifications to an existing law, but the fundamental ideas and essential elements of the legislation must not be changed by that authority. This rule makes sure that the fundamental components of law are protected while allowing for required amendments to be made by executive or subordinate authorities.

Control Mechanism of Delegated Legislation
There are many reasons for introducing a control mechanism of delegated legislation, such as:
  1. It guarantees transparency and accountability in the legislative process. Delegated legislation gives executive or subordinate agencies considerable authority to implement laws without the involvement of the legislature. Without adequate checks and balances, these authorities can misuse the power delegated to them.
  2. A check on these powers is made possible by the implementation of control mechanisms, such as parliamentary control or judicial review, which guarantees that the delegated law stays within the limits of its authority and serves the public good.
  3. Control mechanisms serve as safeguards to make sure that the delegated law does not violate the rights and freedoms of any individual or go beyond the limits of its original purpose. This mechanism helps in preserving the rule of law.

There are three forms of control over delegated legislation:
  1. Judicial control
    There are basically two tests applied for deciding the validity of delegated legislation by way of judicial control.
    1. Substantive ultra vires
    2. Procedural ultra vires
    Meaning of Ultra Vires: ultra vires means 'beyond power or authority'. An act is an ultra vires act if it is done by someone who is acting beyond his/her jurisdiction.

      Substantive ultra vires
    When act of the legislature is in excess of power conferred on the legislature by the constitution, then the legislature is said to be ultra vires the constitution. Similarly, when subordinate legislation goes beyond the authority of delegated legislation the act is ultra vires, and this is known as substantive ultra vires.

    Under following circumstances, the delegated legislation can be declared invalid on ground of substantive ultra vires.
    1. Parent act is unconstitutional
      If the parent act conferring power on the subordinate authority is itself unconstitutional then the delegated legislation is also unconstitutional or ultra vires.

      In the case of Chintamanrao Vs. State of M.P, 1951, SCR 759 the parent act authorised the Deputy Commissioner to prohibit manufacturing of bidis in some areas. Court held that order passed by deputy commissioner under the act is ultra vires and even the parent act is ultra vires the constitution as it violates the fundamental right to carry on any trade, business or any occupation, under Article 19 of the constitution.
    2. Delegated Legislation is ultra vires the constitution
      If the statue or parent act is constitutional but the delegated legislation is ultra vires the constitution, then the delegated legislation will be declared invalid. Same was held in the case of Air India vs. Nargesh Meerza, 1981, 1981 AIR 1829, 1982 SCR (1) 438. where a regulation was framed by Air India providing that service of an air hostess will be terminated on her first pregnancy, this was held violative of Article 14 of Constitution.

      In the case of D.S Nakara vs. Union of India, 1983 SCR (2) 165 a scheme was introduced that provided higher pension to person retiring before a particular date, and lower pension to others retiring after such date, this was delegated legislation was held to be violative of Article 14 of the Constitution.
    3. Delegated legislation is inconsistent was parent act
      It is also important that even if the parent act and delegated legislation both are constitutional but the delegated legislation is inconsistent with the parent act, then such delegated legislation will be invalid.

      In Indian Council of Legal Aid & Advice vs. Bar Council of India, 1955, 1995 AIR 691 rule was framed by bar council barring enrolment as advocate of person who had completed 45 years of age.

      However, Parent act only enabled bar council to lay down conditions subject to which an advocate shall have right to practice.

      Thus, the rule was held to be inconsistent with the parent act.
    4. If the delegated legislation is mala fide
      In the case of Indian Express Newspaper Pvt.Ltd. vs. Union of India (1985), in this case supreme court held that 'unreasonableness' is a ground of judicial review which is available to determine the validity of the delegated legislation.
    5. Where delegated legislation includes 'ouster clause'
      The delegated legislation may contain a clause stating that its validity shall not be questioned in any legal proceeding and tends to keep itself away from the scope of judicial review. This is known as 'ouster clause'.
    6. Where delegated legislation is arbitrary
      In India arbitrariness is not a ground for declaring a subordinate legislation ultra vires or invalid, but it is included within Article 14 of Constitution, hence any rule that violates the constitution is invalid.
    7. Where delegate further delegates
      'Delegatus non potest delegate' as mentioned above this maxim means that no delegated power can be further delegated, until and unless the parent act itself authorises aur permits such further delegation.
    Procedural ultra vires
    When a subordinate legislation fails to comply with the procedure prescribed by the parent act, it is knowns as procedural ultra vires. While framing rules, parent act may require the delegated legislation to observe a certain procedure, such as discussion with particular bodies or publication of draft rules, etc.

    It is binding on the delegated legislation to comply with these procedural requirements, and if such procedural requirements are not followed, then the rule so formed will be invalidated. But these procedural requirements are not always mandatory.

    Types of procedural control:
    1. Consultation
    2. Publication

    One of the techniques adopted by courts to check and control exercise of legislative power by the subordinate authority, is the process of consultation. It act as a safeguard against possible misuse of legislative authority.

    In order to keep the legislative process open, accountable, and inclusive, consultation is essential. By embracing many points of view, areas of expertise, and experiences, it helps to improve the quality of delegated legislation. Legislators can detect possible problems, unexpected repercussions, and practical difficulties related to new legislation by including stakeholders in the consultation process.

    Publication means the action of making something generally know, or to make something public.

    The public must have access to the law and they should be given an opportunity to know the law, hence, they must be made aware of delegated legislation by way of publication.

    In the case of Harla vs. State of Rajasthan, 1951 AIR 467, 1952 SCR 110 legislation was passed by the council and was not made to know to general public. Hon'ble court in this case held that publication of laws is important.

    Publication can be of two types:
    1. Previous publication
    2. Post publication
    Previous publication
    In this type of publication rules are made known to general public before they are made final or applicable. First the draft of the proposed rule shall be published, followed by the date on which such rule will come into effect, further suggestions and advice for such rule will be taken into consideration.

    Previous publication gives an opportunity to affected persons to provide suggestion in the rule made.

    In Tulsipur sugar co. vs. notifies area committee,1980, it was held that it is not mandatory for every rule or delegated legislation to opt for previous publication, it depends upon statute to statute, few statutes give provision for previous publication while other do not.

    Post publication
    "Ignorantia Juris non excusat" it means ignorance of law is not an excuse, after the law is made available for public.

    In the very famous case of State of Maharashtra vs. M.H George, 1964, German national Mayer Hans George was found guilty of violating Section 23A of the Foreign Exchange Regulations Act of 1947 (repealed) by importing gold into India without the Reserve Bank of India's consent also a notification, dated 8 November,1962 was published in the Gazette of India, stating the same the accused was sentenced to a year in jail. Authorities from the Customs office proved that Mr. George was attempting to cheat the government by smuggling 34 kilogrammes of gold.

    The defendant took the defence of 'ignorance of law; on which the court held that, as notification was published in Gazette, it will be presumed that every individual is aware of the law day after such date on which the law is published.
  2. Legislative control
      If Parliament delegates legislative power to the executive, it must also ensure that those powers are properly exercised and there is no misuse of the authority.

    The objective of such control is to keep watch over the rule making authority and provide criticism if they abuse their power.

    Forms of legislative control:
    Lying on table
    it informs the legislature as to what rules have been made by the subordinate authority. It provides for an opportunity to question or challenge the rules so made.

    There are three effects of lying on table:
    1. Where the parent act requires mere lying of rules, they will come into effect as soon as they are made
    2. If parent act provides for annulment by legislature, rule comes into effect immediately, but if it is disapproved will be invalid.
    3. If the act provides draft rules to be placed before legislature, rules will come into effect only after approval.
    Scrutiny committees
    In India, there are two scrutiny committees:
    1. Lok Sabha committee on subordinate legislation.
    2. Rajya Sabha committee on subordinate legislation.
    The function of committee is to examine and report the respective house, and report the respective house, whether the power to make rules is being properly exercised by subordinate authority.

    They act as a watch dog which bark and arouse their master if there is an invasion on the premises.
  3. Other control
In conclusion, the control of delegated legislation is an essential tool for ensuring the legitimacy and accountability of the legislative process. The complexities and changing requirements of contemporary government are addressed in large part by delegated legislation, which transfers legislative authority to executive agencies. However, efficient regulatory systems must be in place to guard against possible misuse or arbitrary use of authority, it is also presumed that delegation of power should be conferred on trustworthy authorities, there is a presumption that these authorities will not abuse their power.

Control over delegated legislation is essential for preserving the separation of powers, upholding democratic principles, and defending individual rights. Governments may make sure that delegated legislation is responsible, transparent, and in keeping with the fundamentals of democratic governance by putting in place strong systems for parliamentary oversight, judicial review, public involvement, and clear rules.

  1. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur -
    Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly