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19941999

Maharashtra State Board of Secondary and Higher Education v Panitosh Bhupesh Kumar Seth, AIR
1984 SC 1543
Read
more: http://www.lawnotes.in/Delegated_legislation#Classification_of_Delegated_legislation#ixzz43tD
FVBp5
Vice-Chancellor, M D University, Rohtak v Jahan Singh, (2007) 5 SCC 77:
Read
more: http://www.lawnotes.in/Delegated_legislation#Classification_of_Delegated_legislation#ixzz43tD
cB2aT
St Johns Teachers Training Institute v Regional Director, NCTE, (2003) 3 SC 321

Read
more: http://www.lawnotes.in/Delegated_legislation#Classification_of_Delegated_legislation#ixzz43tD
kJWEZ
HC Pradeep Kumar Rai and Others v Dinesh Kumar Pandey and Others, Civil Appeal Jurisdiction,
Civil Appeal No 6549 OF 2014
Read more:

The Doctrine of Separation of Powers is well recognized by all the civilized nations of the
world. In India too such distinction of powers of a sovereign are classified under the
Legislative, Executive and Judiciary. This distinction is blurred, as some would contend,
when powers are delegated or sub-delegated. After independence, there was a lot of
confusion regarding the concept of delegation i.e. whether it is possible and if so, to what
extent. To clarify this, the President of India referred this question to the apex court under
Article 143 of the Constitution. The court laid down some principles regarding these
questions. The re Delhi Laws Act is a landmark judgment of the 7 Judge Bench of the
Supreme Court wherein each judge had a difference of opinion. Therefore, an analysis of the
same would lead to a better understanding of the applicability of the concept of delegated
legislation in India.

To understand the present case better, we have to divide Indian era into basically three: the
pre independence, post independence and the post constitution.
delegation of legislative function or delegated legislation is indeed formidably an integral
and

necessary

aspect

for

smooth

and

easy

functioning

of

any

country.

We have before us a judgment rendered by the apex Court of India, through which the
momentous of delegated legislation is reflected and certain aspects of the same are discussed
in great length. The case being that of, In re Art. 143, Constitution of India and Delhi Laws
Act (1912) . The facts of the case being simple wherefore certain Sections of
(a)

Delhi

(b)

Ajmer-Merwara

Laws

Act

(Extension

of

(13
Laws)

Act

of
(52

1912),
of

1947),

S.7,
S.2

and

(c) Part C States (Laws) Act (30 of 1950), S.2 are scrutinized by the Court for their
constitutionality.
The issue thus being simple, whether they are intra or ulta-vires the Constitution of India.
The six-judge bench took interesting standpoints where the constitutionality of the first two
Acts under the scanner were upheld whereas the second part of Section 2 of the Part C States
(Laws) Act (30 of 1950) was held to be ultra-vires. Most certainly, the judgments of Chief

Justice Kania, Justice Fazl Ali and Justice Bose can said to be perfectly worded and
elaborately dealing with the topic. The importance of delegated legislation or for that matter
sub-delegation is so immense that even in England, which has no Constitution, this aspect
was raised when occasions of conferment of powers on Sub-ordinate bodies became frequent
and assumed large scope, questions about the advisability of that procedure were raised and a
Committee on the Minister's Powers, what is generally described as the Donoughmore
Committee

was

appointed.

The Indian Legislature in 1861 and upto 1915 was a Sub-ordinate legislature and not a
sovereign legislature. Therefore under the Crown it was delegated legislative functions.
However, the legislations it made were reviewed by the Crown. This clearly implicates that
delegation of legislative function is not a very recent or new phenomenon. It has been in
existence since time ever on record. The simple reason for this being convenience.
Territories being enormous, monitoring and controlling is not possible for one administrative
or executive body. Therefore it is but obvious when certain legislative and executive
functions are vested with other authorities rather than a sole central authority exercising all
functions. An example of the same being that, in case of emergency where the safety of the
Union of India is in danger, the President is given express power to suspend the Constitution
and assume all legislative powers. Similarly in the event of the breaking down of the
administrative machinery of a State, the President is given powers under Article 257 of the
Constitution of India to assume both legislative and executive powers in the manner and to
the extent found in the Article. There can be no doubt that subject to all these limitations and
controls, within the scope of its powers and on the subjects on which it is empowered to make
laws

the

Legislature

is

supreme

and

its

powers

are

plenary.

The Doctrine of Separation of Power

is well recognized by all the civilized nations of the world. In India too such distinction of
powers of a sovereign are classified under the Legislative, Executive and Judiciary. This
distinction is blurred, as some would contend, when powers are delegated or sub-delegated.
For example, if the Executive were given Legislative powers or vice-versa. However,
attention must be drawn to the fact that as to this date, such situations very much exist under

our legal framework. The Executive Magistrate, being a part of the Judiciary is vested with
certain Executive functions. In a similar fashion, governmental departments, being a part of
the Administrative body also exercise quasi-judicial functions, which I must mention are a
must for their functioning. This clearly supports my argument that construing strict, inflexible
lines is not pragmatic between the the Legislative, Executive and the Judiciary.
Our understanding would now further question as to whether there ought to be any
restrictions on the said delegation of powers and functions. As is known, no rule is absolute
and there is nothing which is free of fallacy, reasonable restrictions are a must. In the
aforementioned case, the President of India puts forward three tests which define or limit the
scope

of

delegated

legislation

They

and

functions.

being

:-

The legislative authority can so delegate its function if the delegation can stand three tests,
(1) it must be a delegation in respect of a subject or matter which is within the scope of the
legislative

power

of

the

body

making

the

delegation,

(2) such power of delegation is not negative by the instrument by which the legislative body
is

created

or

established,

and

(3) ) it does not create another legislative body having the same powers and to discharge the
same functions which it itself has, if the creation of such a body is prohibited by the
instrument

which

establishes

the

legislative

body

itself.

The power of delegation is implicit and included in the power of legislation. This being the
touch-stone for not rendering the respective Acts ultra-vires. The same authority to which the
powers

are

delegated

are

also

subjected

to

the

above-stated

tests.

The current global trend is fast changing and responding to the need of powers which have to
be delegated and further sub-delegated. It for this reason the Latin principle delegata potestas
non potest delegari which n simple terms means that a delegated function or power cannot be
further delegated, is undergoing cynicism and was also disparaged as early as 1825 . It is
virtually rendered as just a principle which no one follows. However, subject to the three
tests, this principle may be used when prima facie the function under question should have
been carried out by that particular authority itself and should have not been delegated due to
its urgency and importance, this being my own submission. Yet one must remain vigilant that

the

principle

is

not

absolutely

refuted

so

that

it

looses

its

essence.

As observed by Justice Fazl Ali, The true distinction... is this: The Legislature cannot
delegare its power to make a law ; but it can make a law to delegare a power to determine
some fact or state of things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. Another limitation is that a
delegated legislation should not attempt to make another parallel legislation through that
delegated authority. Justice Ali too observes certain restrictions on delegated legislations,
although agreeing with the necessity for such kind of delegation. However, it may be noted
that absolute power, as told to me once by my teacher, is the greatest rush of fluid a person
can incur. Thus to prevent this these restrictions are enumerated hereunder, which are stated
in His Lordships own words, and tampering them would take away the essence of the same :(1) The legislature must normally discharge its primary legislative function itself and not
through

others.

(2) Once it is established that it has sovereign powers within a certain sphere, it must follow
as a corollary that it is free to legislate within that sphere in any way which appears to it to be
the best way to give effect to its intention and policy in making a particular law, and that it
may utilize any outside agency to any extent it finds necessary for doing things which it is
unable to do itself or finds it inconvenient to do. In other words, it can do everything which is
ancillary to and necessary for the full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an
outside agency, it must see that such agency acts as a subordinate authority and does not
become

parallel

legislature.

(4) The doctrine of separation of powers and the judicial interpretation it has received in
America ever since the American Constitution was framed, enables the American Courts to
check undue and excessive delegation but the Courts of this country are not, committed to
that doctrine and cannot apply it in the same way as it has been applied in America.
Therefore, there are only two main checks in this country on the power of the legislature to
delegare these being its good sense and the principle that it should not cross the line beyond
which delegation amounts to abdication and self-effacement.

delegation of legislative function or delegated legislation is indeed formidably an integral

and necessary aspect for smooth and easy functioning of any country.

We have before us a judgment rendered by the apex Court of India, through which the
momentous of delegated legislation is reflected and certain aspects of the same are
discussed in great length. The case being that of, In re Art. 143, Constitution of India and
Delhi Laws Act (1912) . The facts of the case being simple wherefore certain Sections of
(a) Delhi Laws Act (13 of 1912), S.7,
(b) Ajmer-Merwara (Extension of Laws) Act (52 of 1947), S.2 and
(c) Part C States (Laws) Act (30 of 1950), S.2 are scrutinized by the Court for their
constitutionality.
The issue thus being simple, whether they are intra or ulta-vires the Constitution of India.

The six-judge bench took interesting standpoints where the constitutionality of the first
two Acts under the scanner were upheld whereas the second part of Section 2 of the Part
C States (Laws) Act (30 of 1950) was held to be ultra-vires. Most certainly, the judgments
of Chief Justice Kania, Justice Fazl Ali and Justice Bose can said to be perfectly worded
and elaborately dealing with the topic. The importance of delegated legislation or for that
matter sub-delegation is so immense that even in England, which has no Constitution, this
aspect was raised when occasions of conferment of powers on Sub-ordinate bodies
became frequent and assumed large scope, questions about the advisability of that
procedure were raised and a Committee on the Minister's Powers, what is generally
described as the Donoughmore Committee was appointed.

The Indian Legislature in 1861 and upto 1915 was a Sub-ordinate legislature and not a
sovereign legislature. Therefore under the Crown it was delegated legislative functions.
However, the legislations it made were reviewed by the Crown. This clearly implicates
that delegation of legislative function is not a very recent or new phenomenon. It has been
in existence since time ever on record. The simple reason for this being convenience.

Territories being enormous, monitoring and controlling is not possible for one
administrative or executive body. Therefore it is but obvious when certain legislative and
executive functions are vested with other authorities rather than a sole central authority
exercising all functions. An example of the same being that, in case of emergency where
the safety of the Union of India is in danger, the President is given express power to
suspend the Constitution and assume all legislative powers. Similarly in the event of the
breaking down of the administrative machinery of a State, the President is given powers
under Article 257 of the Constitution of India to assume both legislative and executive

powers in the manner and to the extent found in the Article. There can be no doubt that
subject to all these limitations and controls, within the scope of its powers and on the
subjects on which it is empowered to make laws the Legislature is supreme and its
powers are plenary.

The Doctrine of Separation of Power

is well recognized by all the civilized nations of the world. In India too such distinction of
powers of a sovereign are classified under the Legislative, Executive and Judiciary. This
distinction is blurred, as some would contend, when powers are delegated or subdelegated. For example, if the Executive were given Legislative powers or vice-versa.
However, attention must be drawn to the fact that as to this date, such situations very
much exist under our legal framework. The Executive Magistrate, being a part of the
Judiciary is vested with certain Executive functions. In a similar fashion, governmental
departments, being a part of the Administrative body also exercise quasi-judicial
functions, which I must mention are a must for their functioning. This clearly supports my
argument that construing strict, inflexible lines is not pragmatic between the the
Legislative, Executive and the Judiciary.

Our understanding would now further question as to whether there ought to be any
restrictions on the said delegation of powers and functions. As is known, no rule is
absolute and there is nothing which is free of fallacy, reasonable restrictions are a must. In
the aforementioned case, the President of India puts forward three tests which define or
limit the scope of delegated legislation and functions.

They being :The legislative authority can so delegate its function if the delegation can stand three
tests,
(1) it must be a delegation in respect of a subject or matter which is within the scope of
the legislative power of the body making the delegation,
(2) such power of delegation is not negative by the instrument by which the legislative
body is created or established, and
(3) ) it does not create another legislative body having the same powers and to discharge
the same functions which it itself has, if the creation of such a body is prohibited by the
instrument which establishes the legislative body itself.

The power of delegation is implicit and included in the power of legislation. This being
the touch-stone for not rendering the respective Acts ultra-vires. The same authority to
which the powers are delegated are also subjected to the above-stated tests.

The current global trend is fast changing and responding to the need of powers which
have to be delegated and further sub-delegated. It for this reason the Latin principle
delegata potestas non potest delegari which n simple terms means that a delegated
function or power cannot be further delegated, is undergoing cynicism and was also
disparaged as early as 1825 . It is virtually rendered as just a principle which no one
follows. However, subject to the three tests, this principle may be used when prima facie
the function under question should have been carried out by that particular authority itself
and should have not been delegated due to its urgency and importance, this being my own
submission. Yet one must remain vigilant that the principle is not absolutely refuted so
that it looses its essence.

As observed by Justice Fazl Ali, The true distinction... is this: The Legislature cannot
delegare its power to make a law ; but it can make a law to delegare a power to determine
some fact or state of things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. Another limitation is
that a delegated legislation should not attempt to make another parallel legislation through
that delegated authority. Justice Ali too observes certain restrictions on delegated
legislations, although agreeing with the necessity for such kind of delegation. However, it
may be noted that absolute power, as told to me once by my teacher, is the greatest rush
of fluid a person can incur. Thus to prevent this these restrictions are enumerated
hereunder, which are stated in His Lordships own words, and tampering them would take
away the essence of the same :(1) The legislature must normally discharge its primary legislative function itself and not
through others.

(2) Once it is established that it has sovereign powers within a certain sphere, it must
follow as a corollary that it is free to legislate within that sphere in any way which
appears to it to be the best way to give effect to its intention and policy in making a
particular law, and that it may utilize any outside agency to any extent it finds necessary
for doing things which it is unable to do itself or finds it inconvenient to do. In other
words, it can do everything which is ancillary to and necessary for the full and effective
exercise of its power of legislation.

(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an
outside agency, it must see that such agency acts as a subordinate authority and does not
become a parallel legislature.

(4) The doctrine of separation of powers and the judicial interpretation it has received in
America ever since the American Constitution was framed, enables the American Courts to
check undue and excessive delegation but the Courts of this country are not, committed to
that doctrine and cannot apply it in the same way as it has been applied in America.
Therefore, there are only two main checks in this country on the power of the legislature to
delegare these being its good sense and the principle that it should not cross the line beyond
which delegation amounts to abdication and self-effacement