This article examines the principle of delegation. legislation and its control.
Delegation is the process by which legislative authority is transferred from the
legislature to the executive branch or other entities. This transfer of
authority enables the creation of laws and regulations that effectively address
specific and technical challenges.
However, concerns about possible abuse of
this authority and the lack of democratic accountability in the process arise.
The main benefit is that it allows the state government to amend laws as needed
without waiting for the new act to be passed by Parliament. If there is a
requirement, then sanctions can be changed by delegated legislation as
It is believed that when such authority is delegated by the
Parliament to any person or authority, such person or authority is able to
provide more detail to the Parliament's act. Thus, delegated legislation must be
legitimate and accountable, necessitating strong control systems.
There are numerous reasons for instituting a control mechanism for delegated
legislation, including the following: it ensures transparency and accountability
in the legislative process. Delegated legislation delegated significant
authority to executive or subordinate agencies to implement laws without the
involvement of the legislature. Without adequate checks and balances, these
authorities may abuse the authority bestowed upon them.
The implementation of control mechanisms, such as parliamentary control or
judicial review, allows for a check on these powers, ensuring that the delegated
law stays within the limits of its authority and serves the public good.
Control mechanisms act as safeguards to ensure that the delegated law does not
violate any individual's rights and freedoms or exceeds the scope of its
original purpose. This mechanism aids in the preservation of the rule of law.
Judicial Control Over Delegated Legislation
The need to delegate diverse discretionary powers to the administration
necessitates the development of procedures to control their usage in order to
prevent abuse. Montesquieu is generally credited with devising a system of
checks and balances based on a broad division of governmental functions into
three categories: legislative functions, which concern the making of laws,
administrative functions, which concern the execution of laws, and judicial
functions, which concern the application of laws after facts have been correctly
ascertained. To avoid misuse or non-exercise of power by the government or
executive organ, judicial control of administrative power is essential.
Although there are no particular provisions in the Indian Constitution
containing this unbending separation of powers on the American model, it is
widely believed that such a separation of functions exists in our Constitution
in a broad sense. One of the fundamental rules that our judiciary must follow
while exerting control is that it must never consider the decision's merits but
must instead judge on its legality. The judiciary will have to interfere in the
exercise of discretionary authority for judicial control administrative
discretion on a variety of grounds.
Among these grounds are:
Delegated legislation may be declared invalid for any of the following
- Abuse of discretionary power: When authority is given discretionary
power, it must be exercised in line with the law. As he phrased it, "when
the mode of exercising a valid power is improper or unreasonable, there is
an abuse of power." Certain circumstances can be used to infer misuse or
excess of discretionary power. Acting without jurisdiction, exceeding
jurisdiction, arbitrary action, mala fide actions, wrong purpose, unreasonableness,
non-observance of natural justice norms, and so on are examples.
- Non-exercise of discretion: Administrative discretion is subject to
judicial oversight because it is not exercised.
- When the authority delegated authority to a subordinate without legal
- When someone acts on the orders of superiors without statutory
- When a statute bestows discretionary power on an administrative
authority but does not specifically provide delegation of such power,
discretion must be exercised only by the authority given with such power.
Any subsequent delegation of such power to a subordinate or other authority
will be a blatant violation of the principle, delegatus non protest delegare, which states that a delegatee
cannot delegate further. The House of Lords overturned a registered dock
worker's dismissal in Vine v. National Dock Labour Board on the grounds that,
rather than deciding the case itself, the Dock Labour Board on which the power
was conferred had instead delegated the entire subject to a disciplinary
- The enabling Act is unconstitutional: Any statute that violates the
Constitution is unconstitutional. The constitutional restriction that has
thus been violated may impact the Legislature's competence to make such law
or may simply function as a check on the power that is within its
competence. There is a limit to how far delegation can go. Legislative
essential powers shall not be ceded.
- Subordinate law in violation of the Constitution: In some cases,
the enabling Act may not be in violation of the Constitution, but the
subordinate legislation may be. Principles governing the constitutional
legitimacy of legislation originating in Parliament will likewise apply in
establishing the validity of a subordinate law. The Act is not to be
rejected if a rule created under the enabling Act is determined to be ultra vires because it violates
constitutional provisions. Only the violating regulation will be repealed.
- Infringement of the delegating Act by subordinate legislation:
The limits of delegation limit the delegated power. If the rules do not fall
within the scope of the Legislature's powers, they may be challenged as
ultra vires. As a
result, the subordinate delegation must not be contrary to or in contradiction
with the delegating Act.
Delegated legislation is permitted by the Indian Constitution. It exists in form
of bye-rules, regulations, orders, bye laws etc. Modern legislation requires
technicality and expert 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
In order to ensure that the power of delegated legislation is not misused in the
hands of executive it is necessary to adopt effective modes of control. The
judicial control of delegated legislation in India is complete. The
constitutional position of judiciary is such that its right to examine
legislation, whether emanating directly from Parliament or from subordinate
authorities, cannot be barred. A law purporting to confer the statutory finality
on subordinate legislation would not bind the court.
- In re. Delhi Laws Act A.I.R., 1951, S.C. 332.
- N.K. Jayakumar, Limits of Judicial Activism vis-a-vis Administrative Discretion: A Preliminary Inquiry, 26 Journal of Indian Law Institute 55, 56 (1984).
- (1957) A.C. 488.
- V.N. Shukla, Judicial Control of Delegated Legislation in India, 3 Journal of the Indian Law Institute 357, 359 � 364 (1959).
- A.I.R. 1952 Nag. 58.