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 and
Researchers have consistently presented differing and even contradicting views
about delegation of power to legislate and have thus taken different stands on
the issue. A welfare state welcomes a wide growth in a government's authority
which stands as the essence of any welfare state.
Therefore for such an
expansion in the authority of the government present, there is a requirement of
delegation of powers, function and authority in order to ensure effectiveness in
the administration procedure. The task of augmenting the competency of the
government to validate it to handle the social and economic issues and
reconstruct the same has been accomplished through the methodology of delegation
of legislative power to it. The very same delegation of power stands
interrogative when it comes to its constitutionality. This question is indeed
natural and original in form.
Globally, delegated legislation is welcomed in several countries. In case the
Constitution of a specific country is silent regarding the definite limit of the
delegated legislation, the responsibility of the same lies on the courts to
decide. There is a presence of clear silence on the part of the constitution of
countries like the USA, Canada, India, Australia, and South Africa in this
context. While in the UK large volumes of administrative rule-making is not
subject to parliamentary scrutiny but there are statutes to check the
permissible limits of the same.
In the case of India, the constitutionality of administrative rule-making should
be subject to discussion under the umbrella of three different periods ranging
from the Privy Council to that of the present apex court, the Supreme Court of
India. The article further deals with the weapon of constitutionality with light
to India in depth.
In the realm of legal theory, delegated legislation is one of the most debatable
issues because of its various implications. Indian democracy is said to rest on
the acclaimed four pillars and these are the legislature, the executive, the
judiciary, and the press. These pillars are empowered by the constitution not to
interfere in the matters of others. As per the Constitution, the legislative has
legislative powers and the Executive has the power to execute the laws.
Similarly, the Judiciary has the power to resolve dispute and to met out
justice. But we have to keep in mind that there are multifarious functions that
have to be performed by the Legislature in welfare states and it is not an easy
task for the legislature to look after every matter.
In contrast to this increasing legislative activity, the legislatures are not
able to find adequate time to legislate on every minute detail. They have
limited themselves to policy matters and have left a large volume of area to the
Executive to make rules to carry out the purposes of the Legislature. In such
types of situation, the system of delegated legislation comes to our mind.
Therefore, the need for delegation is necessary and is sought to be justified on
the ground of flexibility, adaptability and speed. This delegation is also known
as secondary legislation
or subordinate legislation
. The Act that gives the
executive the power to legislate is called the Enabling Statute
. The standard of rule of the majority has made authoritative controls
inadequate. The term delegated legislation is hard to characterize.
has been defined by Black's Law Dictionary as an act of entrusting
a person with the power or empowering him to act on behalf of that person who
has given him that power or to act as his agent or representative. Delegated
�means exercising of legislative power by an agent who is lower in
rank to the Legislature, or who is subordinate to the Legislature.
legislation, additionally alluded to as an auxiliary legislation, and is an
enactment made by an individual or body other than Parliament. Parliament,
through an Act of Parliament, can allow someone else or somebody to make
enactment. An Act of Parliament makes the system of a specific or particular law
and tends to contain an outline of the purpose for the Act.
By delegating the
legislation by Parliament to the Executive or any subordinate, it empowers
different people or bodies to integrate more details to an Act of Parliament.
Parliament along these lines, through essential enactment (for example an Act of
Parliament), licenses others to make laws and guidelines through delegated
legislation. The enactment made by authorize person must be made as per the
reason set down in the Act of Parliament.
The Dictionary further defines Doctrine of Delegation as:
The Principle (based on the Separation of Powers Concept) limiting
Legislature's ability to transfer its legislative power to another Governmental
Branch, especially the Executive Branch.
Subordinate Legislation has been defined as:
Legislation that derives from any authority other than the Sovereign Power in a
state and that depends for its continued existence and validity on some superior
or supreme authority.
The Principle of Delegated Legislation has been defined as:
This principle which has been well-established is that the legislature must lay
down the guidelines, the principles of policy for the authority to whom power to
make subordinate legislation is entrusted.
Delegated Legislation: Meaning
Delegation of powers means the powers passed on by the higher authority to the
lower authority to make laws. Delegated legislation means the powers given by
the legislature to the executive or administration to enact certain laws. The
simple meaning of the expression delegated expression
When the function of the legislation is entrusted to organs other than the
legislature by the legislature itself, the legislation made by such organs is
known as delegated legislation.
According to M.P. Jain, the term delegated legislation is used in two senses:
- 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
authority in pursuance of the power conferred on it by the legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative
legislation, and Quasi-Legislation. The concept can be further substantiated
with the help of an example. The Parliament of UK itself made the Road Traffic
Act, 1930, and so the legislation is original (rather than delegated). Section
30 of that Act provides that:
The Minister [of Transport and Civil Aviation]
may make regulations as to the use of motor vehicles, their construction and
Accordingly the Minister made the Motor Vehicles (Construction and
Use) Regulations, 1955. The regulations were made by someone other than
Parliament and are, therefore, delegated (rather than original) legislation.
Delegated legislation, also referred to as secondary legislation, 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 purpose laid down in the Act.
History of delegated legislation in India:
The historical backdrop of the delegation of power can be followed from
the Charter Act of 1833 when the East India Company was recapturing political
impact in India. The Charter Act of 1833 vested the administrative powers only
in the hands of the Governor-General-in Council, which was an official body. He
was enabled to make laws and guidelines for revoking, correcting or modifying
any laws or guidelines, which were for all people regardless of their
In 1935 the Government of India Ac, 1935 was passed which contained
a serious plan of delegation. The report of the Committee of Ministers Powers
was submitted and affirmed which completely settled the case for assignment of
forces and appointment of enactment that was viewed as inescapable in India.
However, our Constitution depended on the separation of power; a total partition
of forces was unrealistic henceforth it kept up the holiness of the tenet in the
cutting edge sense. The Indian Constitution does not deny the assignment of
forces. Then again there are a few arrangements where the official had been
conceded with the administrative forces.
For instance, the administrative forces
of the President under the Indian Constitution are prominent. The problem of the
delegation of legislation in India originated under the British rule when the
controversy on the problem in the West was in full swing. In independent India,
the conflict of settling the problem of the delegation of legislative power
was prima facie to a conflict between the English and American type of solution.
The Constitution of India comprises of more than four hundred Articles and it
had not been surprised if the Constitution makers include some solution for it.
But why these provisions were incorporated in the Constitution? This is because
the politicians in the Constituent Assembly tended to multiply legal
formulations. These issues were of minor importance on which legal formulation
was made in comparison to other greater constitutional issues that were
by-passed by the Assembly that were left to future accord or judicial
In the case of Queen v. Burah
, nature and extent of Legislature
power and the feasibility of its delegation was considered by the Privy Council.
The Privy Council, in this case, held that Councils of Governor-General was
supreme Legislature and has ample number of powers and who are entitled to
transfer certain powers to provincial executors. At the time of passing of New
Delhi Act of 1912, the Privy Council accepted the transfer of Legislature power
to the Executive.
Types of Delegated Legislation
Delegated legislation means giving power or authority to someone lower than his
rank to make laws. So there can be many ways in which this excess of power can
be given to subsidiary rank people or an Executive.
These types are as follows:
Delegated legislation by laws:
- Orders in Councils:
This type of Delegated legislation can be given by
Queens or the Privy Councils. This Delegated legislation allows the Parliament
to make laws without going through the Parliamentary proceedings. Today, its
main use is that it gives legal effect to European directives. When the order
issued under the privilege of the Queen or the Crown such order is subject to
review by the courts.
But order issued by the Parliament may or may not be
subject to review by the courts as it is made within the prescribed limits Act
of Parliament. In both the case the question can arises that if this legislation
is the same as the Executive legislative. The answer to this question is yes, it
is equivalent to executive legislative.
There is no major difference between
these orders and Executive legislative almost they both are same. The meeting of
Privy council in such case could simply means a meeting of some Privy Councillors
which includes three or four ministers, President, Councils and Clerk of
Privy Councils. This shows that this order is issued by the Executive who
exercises powers of the Council.
- Rules of the Supreme Court and the County Courts:
The Parliament by
statutes bestows some persons or authority with the power to make laws for a
specific purpose. But it is different in England where a Court has been given
wide power to make laws. This task of making law has been entrusted upon the
Rules Committee of the Supreme Court and the County Courts.
branch to control its Procedural law to a great extent has an advantage as it is
given to that authority who knows better about it than any person. Procedure and
cost that are drawn by Rules Committee of County Courts deals by the County
Courts itself. Such rules are not subject to the control of Parliament. When
these rules used to come into force? It comes into force when the Lord
Chancellors with the consent of the Rules Committee of the Supreme Court
- Departmental or Executive instructions or regulations:
When the power of
legislature directly delegated to the administration such as a Board, Ministers
or a Committee, then the exercise of that given power results in delegation
through Departmental or Executional Instructions or Regulations. Sometimes very
wide powers are given to the administration or the delegated person. But this
wide delegation of legislation is not accepted by the judiciary as it is
difficult for them to control administrative action. There is extensive use of
this delegated legislation in today's world. Nowadays only the broad line of
making legislation is in the hands of Parliament and the rest power is given to
It can be given in two ways, firstly, it
can be given by laws of autonomous bodies, e.g., Corporation and secondly, it
can be given by-laws of a local authority.
Reasons for Growth of Delegated Legislation
- By-laws of autonomous bodies:
These autonomous bodies have got the power
to pass by-laws on matters affecting them and other people in that locality or
people residing in a particular area. For example, they can make laws as public
utility authorities for light, water, etc. Usually, these authorities are given
the power to make rules for regulating their working. Such by-laws are subject
to judicial review. It can be reviewed to check that it must not
be ultra virus the Parent Statute. These autonomous bodies have the power to
frame rules for themselves. One more example of this autonomous body is an
association of Employers. The rules of these association are termed as voluntary
but this is not so in reality. It is fictitious as in its effect these rules are
binding upon members like other rules such as rules of a professional
association, industrial organisation, etc.
- By-laws of the local authority:
Parliament has the power to make new
local bodies or it can alter the existing body. It empowers such body with
powers to make by-laws for themselves for specific purposes. These authority
exercises excess power for public health, safety, and for good rule and
governance. These by-laws incur a penalty on its breach.
- Pressure upon parliamentary time:
The horizons of state activities are expanding. The bulk of legislation is
so great. It is not possible for the legislature to devote sufficient time
to discuss all the matters in detail. Therefore, legislature formulates the
general policy the skeleton and empowers the executive to fill in the
details thus giving flesh and blood to the skeleton so that it may live-
by issuing necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr, 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 manages the main business. The Committee on
Ministers powers has rightly observed:
The truth is, that if parliament were not willing to delegate law making
power, parliament would be unable to pass the kind and quality and
legislation which modern public opinion requires
Sometimes, subject matter of legislation is technical in
nature. So, assistance of experts is required. Members of parliament may be the
best politicians but they are not expert to deal with highly technical matters.
These matters are required to be handled by experts. Here, the legislative power
may be conferred on experts to deal with the technical problems. i.e. gas,
atomic energy, drugs, electricity etc.
Parliament cannot foresee all the contingencies while passing
on enactment. To satisfy these demands of unforeseen situation some provisions
are required to be made. A legislative amendment is a slow and cumbersome
process. But by the device of delegated legislation the executive can meet the
situation expeditiously, e.g. bank rate, police regulations, export and import,
foreign exchange etc. Therefore, in a number of statutes a removal of
difficulty clause has been added empowering the administration to overcome such
difficulties by exercising delegated power. This Henry VIII clause confers very
wide power son the Government.
The practice of delegated legislation enables the executive to
experiment. This method permits rapid utilization of experience and
implementation of necessary changes in application of the provisions in the
light of such experience. As for example, in road traffic matters, an experiment
may be conducted and in the light of its application necessary changes could be
made. The advantage of such a course is that it enables the delegate authority
to consult interests likely to be affected by a particular law, make actual
experiments when necessary and utilize the result of his investigation and
experiments in the best possible way. 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.
In times of emergency, quick action is required to be taken.
The legislative process is not equipped to provide for urgent solution to meet
the situation. Delegated legislation is the only convenient- indeed the only
possible remedy. Therefore, in times of war and other national emergencies, the
executive is vested with extremely wide powers to deal with the situation. There
was substantial growth of delegated legislation during the two world wars
similarly in cases of epidemics, floods, inflation, economic depression etc.
immediate remedial actions are necessary which may not be possible by lengthy
legislative process and delegated legislation is the only convenient remedy.
- Complexity of modern administration:
The complexity of modern
administration and the expansion of the functions of the state to the economic
and social sphere have rendered it is necessary to resort to new forms of
legislation and to give wide powers to various authorities on suitable
occasions. In a country like Bangladesh, where control and regulation over
private trade, business or property may be required to be imposed, it is
necessary that the administration should be given ample power to implement such
policy so that immediate action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries
and it becomes indispensable in modern administrative era.
Growth of Administrative Process bulk of Law comes from the Administrators:
Limitations on Delegated Legislation:
- Law making or ever widening modern welfare and service state is not
possible. For the nature and quality of work required 365 days may not be
sufficient and if overburdened the parliament can't give quality
legislation. Also it is occupied with important policy matters and rarely
finds time to discuss matters of details
- 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.
- 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.
- Meeting Emergency Situations � it is a cushion against crisis because
what if crisis legislation is needed.
- 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.
- Direct participation of those who are governed is mere possible in
Constitutionality of Delegated Legislation:
- The Legislature cannot delegate Essential Legislative Functions which
consist in the determination or choosing of the Legislative Policy and of
formally enacting that policy into a binding rule of conduct. Justice
Cardozo famously stated that the Legislature cannot delegate un canalized
and uncontrolled power, the power delegated must not be unconfined and
vagrant, but must be canalized within banks that keep it from overflowing
- Thus what is permitted is the delegation of ancillary or subordinate
legislative functions or a power to fill up the details.
- Whether any particular legislation suffers from Excessive Delegation has
to be decided by courts having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble, and the facts and
circumstances in the background of which the statute is enacted.
- Essential Legislative Functions include the power to repeal or modify a
law and cannot be delegated.
- In the absence of an express or implied power to that effect, Delegated
Legislation, be it a rule, bye-law or a notification, cannot have
- A power to Tax or levy any fee cannot be inferred from mere generality
of the powers conferred by the enabling enactment. Such power of imposition
of tax or fee by Delegated Authority must be very specific and there is no
scope of implied authority for imposition of such tax or fee.
- One of the important conditions prescribed under Section 23of the
General Clauses Act, 1897 is that the authority having power to make the
rules or bye-laws shall, before making them, must publish a draft of the
proposed rules or bye-laws for the information of person likely to be
- Where the delegating statute itself is ultra virus to the Constitution
of India, the rules made under such statute are also unconstitutional.
- The power to modify the parent statute is limited to bringing about
consequential changes and cannot be exercised to subvert the policy laid
down by the legislature. No radical change in the enacted law is permitted.
- The legislature is the master of policy and if the delegate is free to
switch policy it may be usurpation of legislative power it.
- Delegated Legislation may also be declared invalid on the following
- Violation of the Constitution of the India.
- Violation of the Enabling Act.
- Violation of Principles of Natural Justice when the Statute itself
provides of such requirement.
Position in the USA: Two phenomena operate in the USA namely
- Separation of Power and
- Delegatus non potest delegare.
Since Congress was itself a delegate, how can it delegate its power? The framers
of the American Constitution were imbued with the political theories propagated
by John Locke and Montesquieu. John Locke has said:
The legislature cannot transfer the power of making laws to any other hands: for
it being but a delegated power from the people, they who have it cannot pass it
over to others.
According to Locke:
the legislature neither must, nor can, transfer the power of
making laws to anybody else, or place it anywhere but where the people have.
Montesquieu had developed this doctrine of separation of powers.
The framers of the American Constitution adopted the doctrine in its full force
as seen in the provisions of the US Constitution: Article 1, Section 1. All
legislative powers herein granted shall be vested in the Congress of the United
States, which shall consist of a Senate and House of Representatives.
Article 2, Section 1: The executive power shall be vested in a President of the
United States of America.
Article 3, Section 1: The judicial power of the United States shall be vested in
one Supreme Court and in such inferior courts as the Congress many, from time to
time, ordain and establish.
With regard to the control of the legislature over delegated legislation, M.P.
In a parliamentary democracy it is the function of the legislature to legislate.
If it seeks to delegate its legislative power to the executive because of some
reasons, it is not only the right of the Legislature, but also its obligation,
as principal, to see how its agent i.e. the Executive carries out the agency
entrusted to it.
Since it is the legislature which grants legislative power to
the administration, it is primarily its responsibility to ensure the proper
exercise of delegated legislative power, to supervise and control the actual
exercise of this power, and ensure the danger of its objectionable, abusive and
unwarranted use by the administration.
In India parliamentary control of administrative rule-making is implicit as a
normal constitutional function because the executive is responsible to the
There are three types of control exercised:
Direct General Control
Direct but general control over delegated legislation is exercised:
Direct special control
- Through the debate on the act which contains delegation. Members may
discuss anything about delegation including necessity, extent, type of
delegation and the authority to which power is delegated.
- Through questions and notices. Any member can ask questions on any
aspect of delegation of legislative powers and if dissatisfied can give
notice for discussion under Rule 59 of the Procedure and Conduct of Business
in Lok Sabha
- Through moving resolutions and notices in the house. Any member may move
a resolution on motion, if the matter regarding delegation of power is
urgent and immediate, and reply of the government is unsatisfactory.
This control mechanism is exercised through the technique of laying
table of the House rules and regulations framed by the administrative authority.
The notable use of this technique was made in the Reorganization Acts of 1939 to
1969, which authorised the President to reorganise the executive government by
In England the technique of laying is very
extensively used because all the administrative rule-making is subject to the
supervision of Parliament under the Statutory Instruments Act, 1946 which
prescribes timetable. The most common form of provision provides that the
delegated legislation comes into immediate effect but is subject to annulment by
an adverse resolution of either house.
By Section 4 of the Statutory Instruments Act, 1946, where subordinate
legislation is required to be laid before Parliament after being made, a copy
shall be laid before each House before the legislation comes into operation.
However, if it is essential that it should come into operation before the copies
are laid, it may so operate but notification shall be sent to the Lord
Chancellor and the Speaker of the House of Commons explaining why the copies
were not laid beforehand. Under Section 6 of the Statutory Instruments Act,
1946, the draft of any statutory instrument should be laid before the
Laying on Table
In almost all the Commonwealth countries, the procedure of Laying on the Table
of the Legislature is followed. It serves two purposes: firstly, it helps in
informing the legislature as to what all rules have been made by the executive
authorities in exercise of delegated legislation, secondly, it provides a forum
to the legislators to question or challenge the rules made or proposed to be
Advantages of delegated legislation:
There are many advantages of delegated legislation as it is essential for a
democratic country to flourish or make laws according to its public.
advantages are as follows:
Case Laws for Delegated legislation under the Constitution of India:
- Reduce the workload of Parliament:
The Parliament has to pass several
legislation within a short span of its life. It has to take such type of
intensive work that it can hardly enact the law provisions in detail. If the
Parliament devotes its time in laying down minor and subsidiary detail of each
and every legislation by making all the rules required for that legislation then
it will take too much time and in that time it can only deal with a small amount
of Act in detail.
It is lengthy, time consuming process and also it is expensive to operate
Parliament process. It cannot cope up with the growing needs of legislation.
So there arises the need to overcome that load and it can be possible only
through delegating ones legislative authority to the subsidiary ones or the
executives. Delegated authorities which an expert resides are more
appropriate to make laws and to meet the needs of the community. It saves
ample amount of time of the Parliament because it gives the members a chance
to create or to make rapid changes in small items.
- Technical Expertise:
Today's world has become very technical and
complicated by the introduction of modern means and advancement in technology.
So it is necessary for the members of parliament to know each and every field
but one cannot be the master of all fields. Therefore, it is difficult for the
members of Parliament to have all knowledge needed for making laws in various
fields like on controlling technology, ensuring environmental safety, dealing
with various industrial problems which need basic knowledge.
Also, Parliament is
not a forum which can make laws on administrative and technical details but it
is more concerned with social issues and the rule of law. Therefore, it is
thought that it is better for the parliament to debate on the broad topic or the
main topic and leave the rest detail for the fulfilment by the expert of that
particular field. Thus, delegates authorities with extra skills, experience, and
knowledge are more suitable for making law.
- Decentralized decision making:
The local councils are more suited to
make laws for their constituencies as they better know the condition of their
constituencies than any other. These local bodies can make better laws for their
area that a Parliament cannot do so because they knew their locals need, whats
they want? And it is very essential to know a person for whom we are making
laws. The Parliament makes the laws for broad principle while its delegate
handles the local principle. This separation of power helps in the smooth
running of the legislature.
Delegated Legislation allows for rapid action in case of an emergency but
Parliament take too much time in taking any decision. It has to call for a
session then the Parliamentarian discusses the emergency topic. And after
that, if they all conclude then only that act would have passed. In some
cases, the Parliament have not enough time to accurately make a piece of
legislation and a quick and safety legislation is required for the safety of
a nation. For example, in the UK, the Prevention of Terrorism Act was
created as delegated legislation and now this act has added a new prohibited
group to the terrorism. Therefore, it is more appropriate for the delegate
authorities to make legislation and deal with it.
- Enables flexibility:
In delegated legislation, Parliament makes law in
broader skeletal form and the executive had to fill the minor details. So these
minor details can be changed immediately without making any amendment in the
Parliament. Therefore, it is flexible and the legislation made by this can be
best for the needs of modern public.
- Seeing the interest of affected person:
To make legislation effective it
is important to know the need and interest of that person who is going to be
affected by that law or legislation. Only sitting in big houses and making a
decision for the affected person is easy but knowing their interests and their
needs by living with them in the same condition in which they are living is
tough and then making law for them will surely benefit that affected person.
Therefore, it is necessary to delegate the rights of legislation by the
Parliament to the Executive. The Executive knows the condition of the affected
person better than the Legislature.
- Experimental basis:
It can be used as an experimental basis. It allows
in quick lawmaking. If a law made for some circumstances and it does not fulfil
the condition for which it has made then it can be changed and a new law can be
made at the place of the older one. And if this law gets fitted according to the
situation then this law will prevail in that area. In this way, it is an
advantage in the view of modern public.
Although the concept of delegated legislation was not mentioned specifically in
the Indian Constitution it can be understood by interpreting Article 312 of the
given Constitution. This Article gives right to the Rajya Sabha to open a new
branch of All India Service with a majority of two-thirds majority vote.
means that some powers of legislation will be delegated to the new recruiter of
All India Service. There are many cases through which delegated legislation
under the constitution of India can be understood.
D.S. Grewal v.The State of Punjab
Facts: This case questions the constitutionality of All India Service Act, 1951.
The appellant was appointed to All India Service and posted to the State of
Punjab. He held the charge of Superintendent of Police in various districts but
was reverted or returns to the post of Assistant Superintendent of Police in
August 1957 and was posted to Dharamsala in March in the year 1958.
In the same
month, he was informed that an action has been taken against him under Rule 5 of
the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee
was set up against him under the leadership of Shri K. L. Bhudiraja. He then
immediately made an application under Article 226 of the Indian Constitution
before the Punjab High Court challenging the constitutionality of the Act and
legality of the enquiry against him. Six contentions were made by the appellant
Judgment: K.N. Wanchu, Justice of the Supreme Court at that time, dealing with
the power of delegated legislation under Article 312 of the Indian Constitution.
As the case has been very serious the appellant can be removed or compulsorily
dismissed from the post by the Central Government and therefore Central
Government has instituted enquiry against him. There is nothing mentioned in
Article 312 of the Indian Constitution that takes away the power of delegation.
The delegation power of India and America is that the Congress doesn't have
much power of delegation but it is different from the English in which the
parliament is supreme has an excess of delegating power.
Panama Refining Co. v. Rayan
Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the
President of the United States with some powers under which he can make any
order and violation of that order may lead to panel provision. The President
issued the prohibition made by the above act through the executive and
authorized the Security of Interior to exercise all the powers vested in the
President under section 9(c) of the Act. The Security of Interior issued a
regulation to accomplish the President's order(s). The Section mentioned above
was challenged on the ground that it was an unconstitutional delegation of
legislative power by the Congress.
Judgment: It was held by the Supreme Court of the United States that delegation
of legislative power given by President is void. The court held that Congress
can delegate power to the Executive only on two conditions. Firstly, the Statute
laid down these policies. Secondly, one has to establish the standards and give
the administration the power of making the subordinate rule within the given
Sikkim v. Surendra Sharma
After Sikkim became the State of the Union of India, the Directorate of
Survey and Settlement of Government of Sikkim created and advertised for certain
temporary posts. Like other people, the respondent has also applied for the
post. They got selected and were appointed in different capacities. After the
survey work got completed some of the employees got terminated from the job. In
1982, some of the employees, who were not locals
, filed a writ petition in the
High Court of Sikkim challenging the decision of the Government asking why it
has fired the employees from the service on the ground that they were not
The judge held that the termination of the employees solely on the
ground that he is not local is impermissible under Article 14 and 16 of the
Indian Constitution. It was held that all rules and legislations created under
the power which is granted under sub-clause (k) of the Article 371F constituted
subordinate legislation. This article was added to the Constitution through the
36th Constitutional Amendment.
If in India parliamentary control over delegated legislation is to be made a
living continuity, it is necessary that the role of the committees of the
Parliament must be strengthened and a separate law like the Statutory
Instruments Act, providing for uniform rules of laying and publication, must be
passed. The committee may be supplemented by a specialised official body to make
the vigilance of delegated legislation more effective. Besides this other
measures should be taken to strengthen the control of Parliament over delegated
The Parliamentary control over delegated legislation in USA and India is not as
effective as in UK. In UK the laying off procedure is followed effectively
because there all administrative rule-making is subjected to the control of
Parliament through the Select Committee on Statutory instruments. In India the
control is not very much effective. There are no statutory provisions regarding laying
of delegated legislation. Though the working of the Scrutiny committees
is not very effective, yet they have proved to be an effective body in examining
and improving upon the legislative control over delegated legislation.
What can be inferred from the above writings is that the judiciary prefers the
mechanism of delegated legislation and therefore to avoid insurrection in the
administrative process, the requirement of constitutionality of the rule-making
power comes to play. It is true that be it the doctrine of separation of power
or the rule of law, both aims at independence of the government organs and
therefore delegated legislation becomes unfavourable.
But the fact that both
these doctrines cannot be implemented without effective mechanism of the
rule-making power. In this modern world where there is a growing necessity of
technicality, viability, experiments, delegated legislation requires
introduction. A method that becomes essential must be implemented with
safeguards that are delivered by determining the constitutionality of the same.
Written By: Bhaswat Prakash
, Student of Ajeenkya DY Patil University,