Subordinate or Delegated Lesislation

CHAPTER XIV
SUBORDINATE OR DELEGATED
LEGISLATION
N A T U R E OF P O W E R T O D E L E G A T E
As the Supreme Court of India has observed, it is now well settled that the
power of delegation is a constituent element of the legislative power as a
whole, and in modern times when the legislatures enact laws to meet the
challenge of the complex socio-economic policies, they often find it necessary
and convenient to delegate subsidiary or ancillary powers to delegates of
their choice for carrying out the policy of the legislation.' The nature of
delegated legislation can be broadly classified as : (i) the rule making power;
and (ii) grant of exemption from the operation of a statute. 2
E X T E N T OF D E L E G A T E D P O W E R
The extent to which such delegation is permissible is also well settled. The
legislature cannot delegate its essential function of legislation in any case.
It must lay down the legislative policy and principle and must afford
guidance for carrying out the said policy before it delegates its subsidiary
powers. 3
C O N D I T I O N A L LEGISLATION
In dealing with the topic of delegated or subordinate legislation, we will

have to leave out of consideration what has come to be known as conditional
legislation. In conditional legislation, according to the view expressed by the
1 V.M. Sanjawalla v. The State of Hombay, AIR 1961 SC4; Makhan Singh v. The State of
Punjab, AIR 1964 SC 281; Mohamedaliv. The Union of India; AIR 1964 SC 980 (a case
under the Employees Provident Funds Act, 1952).
2 Vasu Dev Singh v. Union of India & others 2006(11) SCAI .E 108 para 19.
3 V.M. Sanjanwalla's case ante; see also Municipal Corporation of DelhiM. Birla Cotton
Spinning and Weaving Mills, AIR 1968 SC 1232 (whether the Act provides sufficient
guidelines may itself prove difficult to decide in certain cases).
442 legislative Drafting - Shaping the \MW for the Kew Millennium
courts, there is no delegation of legislative power. The law is complete in all

its aspects, but discretion is given to an outside authority to take certain steps
in relation thereto. Thus, it has been held that a provision that certain parts
of an Act shall come into operation only on the petition of a majority of
electors does not confer on the electors the power to legislate. Nor a power
conferred on an outside authority to bring it into force on a suitable date or
authorizing it to fix different dates for different areas and so on. 4 The
power to extend the life of an Act has also been held not to involve
delegation of any legislative power. 3 A power similarly conferred on an
outside authority to extend the jurisdiction of the City Civil Court would
also not involve delegation of legislative power. 6
A provision in a law stating that rules or orders made by the executive there
under shall have the effect of overriding other laws is not necessarily a
delegation of legislative power. Such a provision has merely the effect of
by-passing a law and, having been made by the legislature itself, it does not
suffer from any such defect.7
In all such cases it is assumed that the delegation is non-legislative in
character. The policy of the law is settled the law is also complete in all
respects only a power to fill in minor details as respects its operation is
involved in such cases. In passing, it may, however, be added that with
respect to the question relating to the delegation of legislative power, strictly
so called, the difficulty has been to draw the line between a legislative power
and a non-legislative power.
D I S T I N C T I O N B E T W E E N CONDITIONAL LEGISLATION AND

D E L E G A T E D LEGISLATION
The true distinction would be between the delegadon of power to make

the law which necessarily involves a discretion as to which the law should be
and the conferment of an authority or discretion as to the execution of the
law to be exercised under and in pursuance of the law. While objections
4 Russellv. The Queen, (1882) 7 AC 829; The Queen v. Burab, 5 I A 178(1878); King-
timperorv. Behori LaiSharma, (1945) AC14 at 24; Sardar InderSingh v. The State of
Rajasthan, AIR 1957 SC 510.
5 Sardar Inder Singh v. The State of Rajasthan, AIR 1957 SC 606; AIR 1957 SC 510;
(dissenting from Jatindra Katb Gupta v. The Province of Bihar, AIR 1949 FC175).
6 The State of Bombay v. Narottandas Jethbhai, AIR 1951 SC 69.
7 HarishankarBagla v. The State of Madhya Pradesh, (1955) SCR 380; see also Ramananda
Agarwala v. The State, 55 CWN 572; Jaiial Agarwala v. The State (1952) SCR
127 j^xmibaxi v. The State, ILR (1951) Nag.563.
Subordinate or Delegated Legislation 443
may be raised in the case of the f o r m e r , the latter is generally

unobjectionable. What the case law has done so far is to state a number of
principles by which the legality of the delegation by the legislature is to be
determined although the application of these principles in a given case may
not always be easy.8
The convenient and most common form of delegation of legislative power,
a form which India had inherited from Parliamentary legislation in the
United Kingdom is to exclude from the body of the Act such details as
could very well be left to an executive agency to fill in. This is all the more
necessary in modern times when, due to the complexity and technical
nature of many a law, it is not possible to foresee at the time of drafting an
Act all possible contingencies. N o doubt the aim of any law should be to
project its mind as far as possible into the future and to provide for all
possible contingencies likely to arise in the application of the law. But there
is a limit to this exercise and it is not always possible to provide specifically
for all cases which may arise. All that can be done in such cases is to lay
down the principles and policy of the law with sufficient precision and
definiteness. Even assuming that a code, complete in all aspects could be
evolved, the pressure on Parliamentary time is also a factor to be taken into
account in getting such a measure through. 9 Again a certain measure of
flexibility may also be needed in regard to what are really subsidiary or
ancillary matters so that they can more appropriately be dealt with by the
delegate from time to time.
O n e of the propositions established in In re Article 143, Constitution of
India, "', is that "when an appropriate Legislature enacts a law and
authorizes an outside authority to bring it into force in such area or at such
time as it may decide, that is conditional legislation and not delegated
legislation". This rule was laid down by the Privy Council, as early in 1878
in Queen v. Burah,u
8 In re Kalyanam, AIR 1950 Mad. 243, 247, 248; "a baffling subject" in the words of
the Supreme Court, State of Assam v. SristikarDowerah, AIR 1957 SC 414 at 422.
9 See J.A. Shodhan v. EN. Rana, AIR 1964 SC 648.
Except where a statutory power is made by the legislature to be dependent or
conditional upon the making of rules or regulations, the exercise of the statutory
power cannot be held to be in abeyance or in suspense unless such subordinate
legislation is framed by the administrative authority. Ca/eev. Siem, AIR 1961 SC 476
at 281; A.K. Maity v. Board of Secondary Education 71 CWN 396 at 403.
10 AIR 1951 SC 332.
11 ILR 4 Call 72 (PC).
444 legislative Drafting - Shaping the Law for the New Millennium
In a recent case of Vasu Dev Singh v. Union of India & others'2, the Supreme
Court observed as follows:
" T h e distinction between conditional legislation and delegated
legislation is clear and unambiguous. In a conditional legislation the
delegate has to apply the law to an area or to determine the time
and manner of carrying it into effect or at such time, as it decides or
to understand the rule of legislation, it would be a conditional
legislation. The legislature in such a case makes the law, which is
complete in all respects but the same is not brought into operation
immediately D e l e g a t e d legislation, h o w e v e r , involves
delegation of rule making power of legislation and authorities an
executive authority to bring in force such an area by reason thereof.
The discretion conferred on the executive by way of delegated
legislation is much wider. Such power to make rules or regulations,
however, must be exercised within the four corners of the Act.
Delegated legislation, thus, is a device which has been fashioned by
the legislature to be exercised in the manner laid down in the
legislation itself."
The Supreme Court in above case have referred to observations made in
Hamdard Dawakhana (wakfj Lai Kuan v. Union of India & Others,]ias
follows:
"The distinction between conditional legislation and delegated
legislation is this that in the former the delegate's power is that of
determining when a legislative declared rule of conduct shall
become effective; Hampton <& Co. v. US.U and the letter involves
delegation of rule making power which constitutionally may be
exercised by the administrative agent. This means that the legislature
having laid down the broad principles of its policy in the legislation
can then leave the details to be supplied by the administrative
authority."
F O R M S OF S U B O R D I N A T E L E G I S L A T I O N
Such subsidiary or subordinate legislation may take various forms, e.g.,

rules, regulations, notifications, bye-laws orders or schemes. Section 24 of
12 2006 (11) SCALE 108.

13 (1960) 2 SCR 671.
14 276 U.S. 394.
Subordinate or Delegated legislation 445
the General Clauses Act, 1897, itself refers to some of these in the context
that notifications, orders, bye-laws, forms and rules will continue in force
where an enactment under which they are made is repealed and re-enacted
with or without modifications. (See also section 2 0 . ' ^ The device of
delegating the power to frame the rules and regulations is employed for
diverse purposes like:
(a) C o m m e n c e m e n t of Acts: Several Acts authorizes the Government to
appoint the date with effect from whats the enactment shall come into
force.
(b) E x t e n s i o n and application of Acts: The subordinate legislation
device is often used for the extension of the Acts in respect of territory
and other objects and duration of times.
(c) Temporary Extension of Acts: Act of temporary nature having a
fixed tenure sometimes contains a provision enabling the Government
to extend the life of the Act or part of it.
(d) Extension of Acts to objects not originally covered
(e) D i s p e n s i n g and s u s p e n d i n g of A c t s : Many Acts p r o v i d e an
exemption clause empowering the executive to make exemptions from
all or any of the provisions of an Act in a particular case or class of cases
when, in the discretion of the executive, such a course is warranted.
(f) Delegation of Power to alter an Act: Alteration technically amounts
to an amendment of an Act. It may be by way of Modifications or
amendment. Modification empower the Government to make changes
in any Act by way of (i) adoptions; (ii) alterations; (iii) exceptions; (iv)
restrictions; or (v) additions so that the modified Acts serves some
purpose other than that for which it was originally enacted.
In the Indian context, practice of empowering the Government to modify
the Act has mostly been delegated as a consequence to the power of
extension and application of laws. The delegated power authorizes the
making of modifications in an Act to be extended, which may be in
enabling Act itself or some other Act. Another occasion for the grant of
modification arises, when "Legislation by reference is adopted". It is a
device where an Act or part of it is taken to be forming a part of another
Act. To make adopted Act fit into framework of the adoptive Act, power
is given to the executive to introduce necessary modifications in the former.
RULE
The expression "rule" is defined in the General Clauses Act, 1897, as a rule
15 J.A. Shodhan v. F.JS. Rana, AIR 1964 SC 648, discusses the various type of sub
ordinate legislation.
446 legislative Drafting Shaping the Law for the New Millennium
made in exercise of a power conferred by any enactment and will include a

regulation made as a rule under any enactment. The Mines Act, 1952, may
be cited as an illustration of a case where a regulation may also be regarded
as a rule. (See sections 58 and 59). The most common form of delegation
of legislative power is to authorize the executive to frame rules for carrying
into effect the objects and purposes of the Act. Rules may be defined as
minor laws. Invariably the Act also sets out for the guidance of the
executive the topics on which such rules may be made, although the lists of
topics so set out are not intended to be and may not be exhaustive.
REGULATION
Regulation (as opposed to laws made in the form of Regulations and

falling within the definition of Regulation as contained in the General
Clauses Act, 1897), are somewhat inferior to rules in that they are generally
made by a subordinate authority like a Board or other statutory body
functioning under a statute. 16 The draftsman would be well-advised to
preserve a distinction between rules and regulations. The Indian practice is
to confer rule-making powers on the G o v e r n m e n t itself and where a
specified subordinate authority is singled out for regulating any matter, the
subsidiary legislation is generally in the form of regulations. Such regulations
may be needed only for bind the members of that authority or they may
have a wider significance. Rules, on the other hand, have invariably a much
wider application. 1 "
The word 'Regulation' has also been used in Constitution where power to
govern certain territories is conferred by making 'Regulation'. The word
Regulation is defined in section 3(50) of the General clauses Act in the
gollowing words; "Regulation" shall mean a Regulation made by the
President under Article 240 of the Constitution; and shall include a
Regulation made by the President under Article 243 thereof and; and a
Regulation made by the Central Government under the Government of
I n d i a Act, 1870, or the G o v e r n m e n t of India Act, 1915, or the
Government of India Act, 1935". This type of Regulation is in the nature
of principal legislation and not an instance of subordinate legislation.
16 See A.K. Maity v. Board of Secondary Education, 71 CWN 396 (1967) where it is stated
that a rule is superior to a regulation.
17 Cf. Every exercise of a statutory power by a rule-making authority which is of a
legislative and not of an executive character is to be deemed to be a statutory rule
within the meaning of the Rules Publication Act, 1893 (56 & 57 Viet., c. 66).
As expressed in the definition of'rule', a 'regulation' may be made as a rule

and then it partakes the character of a rule. 'Regulation' and 'rule' are inter
interchangeable words. 18 A regulation made under statutory powers laying
down terms and conditions of service of employees like any other
delegated legislation such as rule has the force of law.19 When power to
make delegated legisladon is conferred on different authorities by the same
Act, the words 'rules' and 'regulations' may be utilized to distinguish the
source and to sub-ordinate the latter to former. But sometimes the same
authority may be authorized to make 'rules' in respect of certain matters
and 'regulation' in respect of others.
BYE-LAW
The expression "bye-law" is generally used when a body like the municipal
corporation is authorized to deal with specified matters. For instance,
building bye-laws. A bye-law is an ordinance affecting the public or some
members of the public. It necessarily involves restriction of liberty of
action by persons who come under its operation as to acts which but for
the bye-law they would be free to do. Further, if validly made, it has the
force of law within the sphere of its legitimate operation. 20
ORDER
While a rule is general in character and indiscriminate in its application, an

order, broadly speaking, is specific and may be limited in its application. O n
the other hand, instances of orders having wide application and standing
more or less on the same footing as enactments are not u n c o m m o n .
Instances of these are orders made under the Defence of India Act, 1971,
the Essential Commodities Act, 1965, the Adaptation Orders under the
Indian Independence Act, 1947, the Constitution and so on.
While an order having the authority of law behind it may be recognized by
courts, unless the order prescribes a rule of conduct which persons living in
the community have to obey, there can be no question of its enforceability
18 Parve%)adir\>. Union of India, AIR 1975 SC 446 at 451.

19 Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 at 1340.
20 A bye-law can be challenged if it is unreasonable; while a rule cannot be so challenged.
MulchandGulabchandv. MukumdShivram, AIR 1952 Bom. 296. The early history of
the expression "bye-law" is that when the Danes accjuired possession of a shire in
F,ngland, the township was often called a "by" and as they enacted laws of their
own, they were called "by-laws" "town-laws" (Iyer's Law Lexicon; see also the
definition in Stroud and Wharton). Also see Krusev. Johnson, (1898) 2 QB 91at 96.
by a court of law or other authority. It is only where the order is

enforceable by courts or other authority that it can be said to have the force
of law.21 Quite often, use of the capital " O " is resorted to by the draftsman
to draw a distinction between orders enforceable by courts and orders of
the stricdy limited variety, but such a device has no legal significance.
NOTIFICATION
"Notify means make known and, in the case of public matters, it generally
means that some persons whose duty it is to notify something, gives it in
the manner prescribed and to persons entitled to receive it. Quite often,
the relevant statutes may define "notification" to mean notification in the
Official G a z e t t e . T h e Burma G e n e r a l Clauses Act contains such a
definition. Notifications may be of two kinds. Most Government orders
are notified so that the public may know them. All of them do not have
the force of law. Only such notifications have the force of law which are
a species of subordinate legislation passed by a body having authority to
promulgate them and which lay down some rules of conduct for persons
in the community to obey. A p p o i n t m e n t s , postings and transfers of
officers which are often notified in the Gazette cannot obviously have the
force of law.22
SCHEME
A "scheme", may be of two kinds. It may embody subordinate legislation

containing a body of rules binding on person with whom the rules are
concerned and in such a case, if passed by an authority having the necessary
power to do so, they will be enforceable in courts of law or by other
authorities and will have the force of law. The other kind of scheme may be
purely executive in character and does not contain any rules of conduct for
any body to follow.23
PROCLAMATION
A "proclamation" is the act of proclaiming, a declaration or notice by

public outcry such as is given by criers or a public notice in writing given by
a State or departmental official of some act done by the Government or to
be done by the people. It is in the above sense that the word is used in
section 26 of the Police Act of 1861 which provides for the disposal of
21 J.A. Shodhan v. EN. Rana, AIR 1964 SC 648 at 667.

22 Ibid.
23 Ibid
unclaimed property by the police after issuing a proclamation.

On the other hand, legislation in pursuance of some statutory power may
also take the form of proclamations. For instance, in case of failure of the
constitutional machinery in any State, the President may, by Proclamation,
assume to himself the powers of the State legislature and also make such
incidental, or consequential provisions as may be necessary or desirable to
give effect to the objects of the Proclamation, (art. 356 of the Constitution).
The President may also declare by Proclamation a state of emergency
which has the force of law (art. 352).
RESOLUTION
A "resolution" passed by Parliament is the form in which that body

expresses an opinion. It is generally a suggestion or declaration concurred in
by both Houses where there are two Houses or passed by one House if
there be but one and not submitted to the executive for approval. The
Legislature often requires the executive to take action by means of
resolution. For implementing such resolutions it may sometimes be
necessary to enact legislation. (See for instance, the Commissions of Inquiry-
Act, 1952 (60 of 1952; The Indian Rubber Control Act, 1934).]
A "resolution passed by Parliament under article 249 or by the Legislature
of a State under article 252 is not equivalent to a statute. It is only a
declaration and enables some further action, including legislative action, to
be taken.
THE NEW DESPOTISM
The tendency to regulate certain matters by subordinate legislation as

exemplified in linglish Parliamentary Legislation, had earlier attracted a
great deal of attention and considerable hostile comment. This apparent
surrender by Parliament of a large part of its legislative functions to the
executive d e p a r t m e n t s of the State was focused in 1929 by Lord
Hewart of Bury in the New Despotism (London). Cecil T.Carr in Del-
egated Legislation (Oxford University Press, (1921) and W.A. Robson in
justice and Administrative Law, Macmillan & Company (1928), had already
examined the extent of the growth of the p h e n o m e n o n , the advantages
and disadvantages of the practice, and the nature of the checks on it.
The publication of Hewart's book had been preceded by the appoint
m e n t o n t h e 30 , h O c t o b e r , 1929, of a C o m m i t t e e (known as the
D o r o u g h e n c e C o m m i t t e e to c o n s i d e r t h e p o w e r s e x e r c i s e d by
Ministers of the Crown by way of delegated legislation and to report
450 legislative Drafting - Shaping the \MW for the Kew Millennium
what safeguards are desirable or necessary to secure the constitutional

principles of the sovereignty of Parliament and the supremacy of the
law. T h e report of that Committee published in 1932 by H.M's statio
nery Office as Cmd. 4060 to a large extent provided the necessary cor
rective. 24
"The truth is that if Parliament were not willing to delegate lawmaking
power, Parliament would be unable to pass the kind and quantity of
legislation which modern public opinion requires."21' O n the ground merely
of efficient drafting, Lord Thring, 26 Parliamentary Counsel to the Treasury,
had advocated in 1877 that procedure and matters of detail should not be
included in an Act, but if possible should be left to be prescribed, and his
successors in the Parliamentary Drafting Office of the Treasury have
maintained this view.27
REPORT OF COMMITTEE O N MINISTERS' POWERS
The Committee on Ministers' Powers referred to above found the practice

of delegating law-making power justifiable and even inevitable, because
(a) it relieved pressure on Parliamentary time, leaving Parliament to deal
with essential principles of legislation.
(b) Parliament cannot effectively deal with technical matters.
(c) Administrative details cannot be worked out in time, nor can the
contingencies or local conditions to be provided for be foreseen.
(d) Unknown future conditions demand flexibility.
(e) The need to experiment and profit by experience cannot otherwise be
met,
(f) Sudden emergencies cannot otherwise be handled.
24 Bartley's General Clauses Act, 1897 at 151-152 (1940).

25 Report of the Committee on Minister's Powers, at 23.
26 Thring, Practical Legislation, Chapter II, paragraph 12.
27 For instance, Sir Heneryjenkyns, a Parliamentary Counsel, has recorded the following
official minute.
"Statutory rules are in themselves of great public advantage because the subject of
them can thus be regulated after a Bill passes into an Act with greater care and
minuteness, and with better adaptation to local or other special circumstances than
they possibly can be in the passage of a Bill through Parliament. Besides, they
mitigate the inelasticity which often otherwise makes an Act non-workable and are
susceptible of modifications from time to time by the Government Department at
any time of the year as circumstances arise".
JUSTIFICATION FOR DELEGATED LEGISLTION AND DANGERS I N H E R E N T
Herbert Morrison, writing on delegated legislation in his book Government

and Parliament advances three, in his opinion, reasonable arguments for
Ministers having the power to make subordinate legislation.
These are,
First, it really is impossible in modern conditions for Parliament to set out in

an Act all the details of administration for the wide field of modern
legislation, which is more complex in character than most of the legislation
of the nineteenth century. Secondly, there is the very important and practical
point that it is impossible to foresee in framing a Bill whether conditions will
or will not change in a manner requiring modifications in detailed statutory
provisions. If and when such changes in circumstances arise b o t h
Parliament and the public would be frustrated if (as would be quite likely)
parliamentary time were not available to put things right, whereas delegated
legislation can rapidly be revised by the issue of another Statutory
Instrument. Parliament has the same rights over such a changed instrument
as over the original. Finally, it should be noted that no Minister can make
regulations having the force of law unless he has specific authority (usually
by Statute) to do so. The Statute defines the field within which and the
purposes for which the Minister can create delegated legislation, so that
Parliament at the time of its detailed consideration of the Bill is in a position
to limit and define his p o w e r s and p r e s c r i b e his p a r l i a m e n t a r y
accountability. Generally, therefore, not only must the regulations be within
a purpose already approved by Parliament, but also usually they are
relatively (and I emphasize relatively, because they can be of importance) of
limited significance, filling in the details of a Statute. The principle of
delegated legislation is, I think, right, but I must emphasize that it is well for
Parliament to keep a watchful and even jealous eye on it at all stages.28
28 C.K. Allen in his book Law and Order, (1945), has the following criticism to offer on
arguments based on convenience, flexibility and efficiency with respect to the
delegation of such powers.
All these are sound arguments for delegation within due limits, the kind, in fact,
which has always been recognized as a practical and necessary part of our
governmental system. But thev become unsound and dangerous if they are used
to justify the indefinite extension of executive powers. Speed and efficiency may be
bought at too high a price, and indeed we should have learned from many examples
that the State which makes efficiency its highest god is very apt to become an all-
devouring monster. It is "impossible to foresee all the contingencies" not only in
N O R M A L AND ABNORMAL T Y P E OF D E L E G A T I O N
The Committee excluded from the purview of delegated legislation and

characterized as executive such statutory powers as
(a) the power to issue a particular command,
(b) the power to license,
(c) the power to remit a penalty.
In considering delegated legislation, whether by statutory orders in council
or departmental statutory regulations (including rules, orders, warrants etc.),
it distinguishes between a normal type of delegated legislation, and an
exceptional type <J delegated legislation. The normal type of delegation, in
the opinion of that Committee, is characterized by the fact that the limits of
the delegated power are clearly defined in the enabling Act and do not
include such exceptional powers as the power to legislate on matters of
principle or to impose taxation or to amend an Act of Parliament. The
exceptional type embraces cases where the powers just cited are given, or
where the power given is to wide that its limits are almost impossible of
definition, or where, while limits are imposed, the control of the courts is
ousted. These cases, the Committee thinks, have in the past generally
resulted from the special nature of the subject matter, and should in the
future be confined within the narrowest possible limits.
"large and complex schemes of reform," but in any legislation whatever. Our law
reports bear abundant and melancholy, testimony to the casus omissi in innumerable
statutes; but nobody. I presume, would suggest that it should be left to the
executive to correct all statutes which happen to produce unexpected consequences.
It is indisputable that in many Acts there is a considerable amount of administrative
detail which can and should be left to the executive; but nothing could be more
inimical to the true function of Parliament than that it should relax the effort to
"foresee contingencies," for that and not merely the pursuit of desirable ends, is an
essential part of the business of law-making. It would be a strange kind of larceny
law which laid down the principle that men should be honest, and left it to a
subordinate authority to work out all the possible circumstances in which they
might be dishonest. Again, while "flexibility" may be much more convenient than
the notorious rigidity of statutes, it is certain that if an enactment isflexibleenough,
it may soon be bent entirely out of its original shape possibly, in the opinion of
some, to a better shape, but still not that which Parliament designed. The same is
true of "experiment"; give enough room for experiment by administrators and it
is inevitable that before long policy as well as practice will be in the hands of the
executive. In short, administrative efficiency ceases to be a proper constitutional aim
when it is employed to relieve Parliament of its responsibilities.
SAFEGUARDS FOR N O R M A L T Y P E S OF D E L E G A T I O N
To the normal type of delegated legislation the Committee found no

objection, but it proposed that such legislation should be scrutinized by a
Standing Committee of Parliament, should be given antecedent publication
under an amended Rules Publication Act, and should never be withdrawn
from review by the courts.
A subordinate law-making authority is bound by the terms of its delegated
or derived authority and courts of law, as a general rule, will not give effect
to any rules unless satisfied that all the conditions preceding the validity of
the rules have been fulfilled, that is to say, the rules must be within the rule-
making power. 29
In this context of delegation of legislative power generally, the observations
of Jusdce Subba Rao, in V.M. Sanjanwalla's case w may be cited. He said:
" t h e r e is a danger inherent in a p r o c e s s of delegation. An
o v e r b u r d e n e d legislature or o n e c o n t r o l l e d by a powerful
executive may unduly overstep the limits of delegation. It may not
lay down any policy at all; it may declare its policy in vague and
general terms and may not lay down any standard for the guidance
of the execudve; it may confer an arbitrary power on the executive
to change or modify the policy laid down without reserving for
itself any control over subordinate legislation. This self-effacement
of legislative power in favour of another agency either in whole or
in part is beyond the permissible limits of delegation."
P O S I T I O N OF I N D I A N LEGISLATURES R E D E L E G A T I O N
The Indian legislature does not stand in the same position as the British
Parliament as regards the constitutionality of delegation of legislative
power. How far such delegation is permissible in the Indian context has to
be ascertained as a matter of construction from the express provisions of
the Constitution. In the words of MukherjeeJ. in the Delhi Laws Act case,M
"It cannot be said that an unlimited right of delegation is inherent in the
legislative power itself. The legislature must retain in its own hands the
essential legislative functions which consist in declaring the legislative policy
and laying down the standard which is to be enacted into a rule of law, and
what can be delegated is the task of subordinate legislation which, by its
29 / lukum Chand v. Union of India, AIR 1972 SC 2427.

30 AIR 1961 SC 4.
31 (1951) SCR 747.
454 Legislative Drafting - Shaping the haw for the New Millennium
very nature, is ancillary' to the statute which delegated the power to make it.
Provided the legislative policy is enunciated with sufficient clearness or a
standard laid down, the courts will not interfere with the discretion of the
legislature in determining the extent of delegation necessary in a particular
case". In that case (which revealed a sharp conflict of views on the subject)
it was held by a majority that while a power to the executive to extend an
Act in force in any state to a Union territory would be a valid delegation, a
power to make provision in relation to any enactment to extended to any
such territory by notification for the repeal or a m e n d m e n t of any
corresponding law for the time being applicable to that territory would be
ultra vires as being a delegation of legislative power not permissible.
C O N S T I T U T I O N A L LIMITATIONS O N LEGISLATIVE D E L E G A T I O N
Legislature in India have been held to possess wide powers of delegation. 32

This power is, however, subject to one important limitation i.e. 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. 33
The legislature cannot delegate 'uncanalised and uncontrolled power.34 The
Power delegated must n o t be unconfined and vagrant b u t must be
canalized within banks that keep it from overflowing. Delegation is valid
only when the legislative policy and guidelines to implement it are
adequately laid down. 35
The legislature cannot delegate its power to repeal a law or even to modify
it in essential features.36 These are cases where the Legislature does not
limit the delegation to ancillary or subordinate legislative functions- but
32 In re Art. 143 (Delhi Laws Act), AIR 1951 SC 332, Rajnarain Singh v. Chairman P.A.
Committee, AIR 1954 SC 569.
33 Harishankar Bagla v. State of M.P, AIR 1954 SC 465 at 468; A X Parasuraman v.
State of Tamil Nadu, AIR 1990 SC 40 at 42; Agricultural Market Committee v.
Shalimar Chemical Works Ltd., AIR 1997 SC 2502 at 2507; Kunj Biharilal Butail
v.State of H.P., AIR 2000 SC 1069 at 1071; Kiran Gupta v. State of U.P AIR 2000
SC 3299 at 3305.
34 1lamdard Dawakhana v. Union of India; AIR 1960 SC 554 at 554.
35 Tata Iron <& Steel Co. v. Workmen, AIR 1972 SC 1917 at 1922; Givalior Rayon Mills w.
Asstt. Commr. Sales Tax, AIR 1974 SC 1660 at 1669; A X Parasuraman v. State of
Tamil Nadu, AIR 1990 SC 40 at 43; Agricultural Market Committee v. Shalimar Chemical
Works, AIR 1997 SC 2502 at 2507.
36 Ramesh Birch v. Union of India, AIR 1990 SC 560 at 569.
parts with the essential legislative functions and thereby transgresses the
limits of permissible legislation.
When the Legislature requires the delegated legislation to be laid before it,
there is no abdication as the delegate is kept under the vigilance and control
of the Legislature. 1 "
PERMISSIBLE L I M I T S O F D E L E G A T I O N
The courts thus exercise judicial control over subordinate legislation and
there have been several cases subsequent to the Delhi Laws Act case in
which the question of permissible delegation of legislative power has come
up for consideration. Broadly state, the legislature cannot efface itself Or
strip itself of its legislative power. That is to say, the legislature cannot
delegate its function of laying down legislative policy in-respect of a
particular measure. It must declare the policy of the law and the legal
principles which are to control any given case and must provide a standard
to guide the official or body in power to execute the law. Where, for
instance, a power to grant or renew a license is given to an executive
authority, care should be taken to see that in cases of refusal the law contains
sufficient guiding principles for the purpose, that the authority is required to
state his reasons for such refusal and that there is a right of appeal. It is
always for the courts to declare on a fair, generous and liberal interpretation
of the language employed in a statute whether the legislature has exceeded
the permissible limits in the case of delegated legislation.38
Thus, even where an Act like the Kssential Supplies (Temporary Powers)
Act, 1946 which could be said to be sketchy in character in that it left the
supply, distribution and availability of any essential commodity to be
regulated by the Central Government by order, the policy of the law being
clear both from the preamble and the body of the relevant section, the
delegation was held to be within permissible limits.19 Again where a power
was'given to the Government to add any employment to the Schedule of
Minimum Wages Act, 1948, so that minimum wages could be fixed in
respect of that employment also, the court held that the legislature had not
37 D.S. Garewalx: State of Punjab, AIR 1959 SC 512 at 518; A. I '. X.a.jane v. Union of
India AIR 1982 SC 1126 at 1134; State of M. P. v. Mahalaxmi Fabrics Mills Jjd 1995 (1)
SCALE 758 at 770.
38 V.M. Sanjanwalla'scase, supra, note 1; see also Bhatnagarv. Union of India, AIR 1957
SC 478; Hari Chandx. Mi%> District Council, AIR 1971 SC 474 at 476; Ckandrakantx.
Jasjit Singh, AIR 1962 SC 204.
39 Harishankar Bagla v. The State of Madhya Pradesh, (1955) SCR 380.
456 legislative Drafting Shaping the luiwfor the New Millennium
effaced itself thereby of its legislative power and that it had only assigned an
accessor)- or subordinate power to the appropriate Government to carry
out the purpose and policy of the Act. 40
Power may be vested in an executive authority while extending an Act to a
new area by notification to modify it in its application and no objection
would be taken to its exercise so long as it is used to make any peripheral or
insubstantial changes as are necessary or appropriate for adaptation and
adjustment, and it is not used to make any change in its essential features or
in the legislative policy built into it (phraseology which it is not always
possible to define with sufficient precision or definiteness). 41 The time when
the provisions of a statute should be implemented or the place where they
should be applied or the period during which they should be so applied
could all very well be left to the delegate so long as the policy of the law is
clear.42
Power to remove a doubt or difficulty by altering the provisions of an Act
(in this case, the Payment of Bonus Act, 1965) was held by a majority of the
Judges to amount to exercise of legislative authority which cannot be
delegated to an execudve authority. In the opinion of the court the matter
would be made worse by providing that an order made by the Central
Government for removing any such doubt or difficulty shall be final.43
The Indian Constitution also contains provisions where it is expressly stated
that Parliament may by law provide for certain specified matters. For
instance, article 312 provides that Parliament may, by law, provide for the
creation of one or more All India services. Such a provisions does not
necessarily mean that the constituent element of delegation is done away
with. And an Act like the All India Services Act, 1951, which leaves
practically everything to rules to be made by the executive would not be
open to objection once it is held that the policy of the Act is clear and the
Act has also enacted that policy into a binding rule of conduct. 44
Although statutes like the Essential Supplies (Temporary Powers) Act, the
All India Services Act, the Defence of India Act and the like may be said to
40 Edward Mills Co. Ltd. v. State of Ajmer (1955) 1 SCR 25. Also see Mahe Beach Trading
Co. v U.T. of Pondicherry (1996) 3 SCC 741.
41 Kajnarain Singh v. Chairman, Patna Administration Committee, (1955) SCR 290; Lachmi
Karain v. Union of India, AIR 1976 SC 714.
42 Bhatnagarv. Union of India, AIR 1957 SC 478 - a case under the Import and Export
(Control) Act, 1947.
43 Jalan Trading Co. lid. v. Mills Ma^doorSabha, AIR 1967 SC 691.
44 D.S. Crewalv. State of Punjab, AIR 1959 SC 512.
constitute the high watermark of delegation of legislative power, they are

by no means uncharacteristic. The draftsman should always consider the
whole matter not only from the point of view of necessity or propriety but
also from the point of view of the constitutional limitations on the
legislature or, in other words, the powers exercised by the superior courts
to examine subordinate legislation.
G U I D A N C E T O T H E E X E C U T I V E A N D O T H E R SAFEGUARDS
What guidance should be given to the delegate in a given case will depend
upon a consideration of the provisions of law made in that behalf. The
nature of the body to which the power is delegated may be a factor for
consideration. In some cases broad guidance may be sufficient, while in
others more detailed guidance may be necessary.45 The draftsman will thus
have to exercise special care in framing delegated legislation.
For instance, the Indian Statue Book contains many instances of the power
to impose taxes being delegated. Parliament, no doubt, is extremely
reluctant to delegate such a power, but cases have arisen in which Parliament
has had to accept the necessity for the grant of such a power for the
efficient operation, for instance, of a tariff system. An indigenous industry
may need immediate protection by adjustments made in the matter of the
duties leviable on articles imported into India of the kind manufactured
locally. O r it may be that in the interest of the country, profits on export
earned by exporters by reason of fortuitous circumstances should be
mopped up immediately. Objects like these cannot obviously be secured if
the slow-moving machinery of Parliament is to be utilized for this purpose.
As instances of this type of legislation may be cited section 3A of the Indian
Tariff Act, 1934 (as inserted in 1951) which authorized the Central
Government to levy protective duties in certain cases by notification. The
safeguards provided were that the power could only be exercised upon a
recommendation of the Tariff Commission and a Bill had to be introduced
in Parliament in the session immediately following the date of the
notification to give continued effect to provisions contained in the
notification. Section 4A of the same Act (inserted in 1950) authorized the
45 The Municipal Corporation of Delbiv. Birla Cotton Spinning andWeaving Mills Ltd. AIR
1968 SC 1232; M/s Jullundur Rubber Goods Manufacturers Association v. Union of
India, AIR 1970 SC 1589; S.KSmgh v. I'. V. Giri, AIR 1970 SC 2097 (power conferred
on the Central Government to make rules regarding Presidential and Vice-
Presidential elections after consultation with the Election Commission and for the
purpose of earning out the purposes of the Act were held to be sufficient guidance).
Central Government in emergent cases to increase the export duty leviable

on any article or to levy export duty on any new article, where ever it was
necessary to do so. Parliamentary control was to be exercised over such
power by requiring all such notifications to be laid before Parliament as
quickly as possible and requiring Government to move a confirmative
resolution if the notifications were to be continued. Section 3A of the
Central Excises and Salt Act, 1944 (1 of 1944), added by Act 81 of 1956
(now repealed) is a recent instance in which Parliament had authorized the
executive to increase excise duties by notification. The checks provided
were that the increase should not be more than fifty per cent of the duty
fixed by Parliament, that no notification should be issued while Parliament is
in session, that any notification issued should be laid before Parliament
within seven days of its re-assembly after the date of the notification and
that the G o v e r n m e n t should seek the approval of Parliament thereto.
Section 12 pf the Rubber Act, 1947 (24 of 1947) authorities the Central
Government to levy a duty of excise on rubber produced in India, subject
to a m a x i m u m limit prescribed. Section 13 authorises the Central
Government to fix by order the maximum and minimum prices for sale of
rubber.
In the context it would be well to remember that an uncontrolled power to
the executive to levy a tax may amount to an effacement by the legislature
of its legislative power and so invalid.46
INSTANCES TO E N S U R E FINALITY TO D E L E G A T E D LEGISLATION
T h e statutes conferring powers to make rules or orders frequently

contained from 1850 onwards some such provision as that of section 78,
Bankruptcy Act, 1869 (32 & 33 Viet., c. 62), which provides that rules made
by the Lord Chancellor " as to any.. .matter.. .in respect to which it may be
expedient to make rules for carrying into effect the object of this Act"
should "be deemed to be within the powers conferred by this Act and... be
of the same force as if they were enacted in the body of this Act". The
Patents, Designs and Trade Marks Act, 1883 (46 & 47 Viet., c.57), out of
which arose the case Institution of Patent Agents v. l^ckwooa^ contained in
46 Mis Devi Das v. The State of Punjab, AIR 1967 SC 1895; see also G.B. Modi v.
Municipal Corporation of the City of Ahmedabad, AIR 1971 SC 2100 where a somewhat
similar power was upheld. As stated earlier, the status or nature of the authority to
which the power is delegated may also be a factor for consideration.
47 (1894) AC 347.
section 101(5) the simpler formula that rules made in compliance with
certain p r o c e d u r e were " t o be of the same effect as if they were
contained in the Act." This formula was adopted in India in the Indian
Post Office Act, 1898 (6 of 1898), and in some Acts subsequent to that
Act. Indian Acts of recent years have largely dispensed with the formula
on the view that it was in effect not more than a statement of the obvious.
In the Lockwood 4 8 case the question was whether certain rules made by
the Board of Trade were intra or ultra vires. They were m a d e in
conformity with provisions governing the making. The Act provided that
the rules should be of the same effect as if they were contained in that
Act. The Law Lords expressed opinions ( not however unanimous) on
the question whether in view of this provision it was open to the Court to
canvass their validity, but the point was not actually decided as the rules
were held to be intra vires. In R. v. Hlectricity Commissioners,^ Avory J.
thought that had the scheme reached the stage at which it took effect as if
enacted in the Act, its validity could not be question, but it had not
reached that stage. In the Municipal Corporation of Rangoon v. The Soorattee
Bara Bayar Co.'0 it was felt that the use of expressions like " n o t
inconsistent with the Act" in connection with the rules to be made would
render practically useless any such formula as was adopted in the English
Act above referred to. The House of Lords in Minister of Health v. The
Kin^ (on the prosecution of Yaffe) had laid down that:
' While the provision of the Act makes the order made under the
Act speak as if it were contained in the Act, the Act is which it is
contained is the Act which empowers the making of the order and
therefore if the order as made conflicts with the Act it will have to
give way to the Act. In other words, if in the opinion of the Court
the order is inconsistent with the provisions of the Act which
authorizes it, the order will be bad.32
48 Ibid.
49 (1924) I KB 171.
50 ILR5Ran.212at218.
51 (1931) AC 494.
52 See, however Willis, Parliamentary Powers of English Government Departments,
at 81-82. State of Kerala v. Abdulla & Co., AIR 1965 SC 1585atl589.
460 legislative Drafting - Shaping the haw for the New Millennium
Thus, if the intention of the legislature by the formula is to give to delegated

legislation a finality equal to that of its own legislation, that intention has
been defeated by judicial interpretation. 33
In the words of Sir W. Graham-Harrison, the words, "as if enacted in the
Act" are merely a survival, a common form, which may originally have
served a useful purpose, but which in view of the decisions of the courts,
has long ceased to serve any purpose at all. He even went so far as to
observe that any suggestion that Parliament in framing such a provision
Parliament was intending to provide that the validity of the rule should not
be canvassed in the courts seems by its mere absurdity to answer itself.54
The use of the expression "as if enacted in the Act" does not appear to
have been completely given up in the United Kingdom notwithstanding the
above observations. (See for instance, section 85(2) of the Diseases of
Animals Act, 1950 (14 G e o 6, c. 36); see also section 166 (4) of the
Bankruptcy Act, 1949, Canada.)
The above expression may perhaps be of some use in cases where an Act
confers a power on the executive to extend it to certain areas, in which event
the extension of the Act, it could be argued, carries with it the rules already
made as part of the Act.
Where the rules concerned are in the original Schedule to an Act, then they
are part of the legislative enactment in every sense of the word and in such
a case the principle that applies is that the latter provision shall be effective.
Where, however, the provision in the rules has been effected by a non-
legislative body (such as a Board of Revenue) under a rule-making power,
the principle applicable is that by rule or regulation you cannot affect the
53 Munna IWv. U.K. Scott, AIR 1955 Cal. 451at 456; The State v. Kunja Behari, AIR
1954 Pat. 371; Fosterv. Alone (1951) VLR 481; Brojendra Kumarv. Union of India, AIR
1961 Cal. 217at 23.
In Ravulu Subba Rao v. Commissioner of Income-Tax, Madras, AIR 1956 SC 604 at 612,
the Supreme Court followed the decision in Lockwood's case (supra n-47) and held
that the vires of a rule made under section 59 of the Indian Income-tax Act, 1922,
which provided that rules made under that section shall, when made, have effect as
if enacted in the Act, could not be questioned. No reference was, however, made in
this case to the decision in Yoffe's case and it appears to have been admitted in the
Supreme Court decision that the rules were within the mandate conferred by the
section. Further, in the words of the Supreme Court, the rules in question merely
sought tofillin details occupied by the Act. No question of inconsistency therefore
fell to be considered and in the circumstances this decision would appear to be of
no real help in the present context.
54 Craies on Statute Taw, sixth ed at 309-310.
provision of an Act even though it is to be considered to be embodied in

the Act and forming part of it. As a rule, it must give way to the provisions
in the Act.5S
P O W E R T O M O D I F Y STATUTES
As instances of the delegation in the United Kingdom of a power to

modify the Act conferring the power, nine Acts passed between 1888 and
1929 are cited, the power being conferred for the purpose of facilitating
the bringing of the Act into operation and being in effect a power limited in
duration to remove difficulties or remedy defects in conditions subsisting at
the initiation of the new legislation. See for instance, section 51, Metropolis
Water Act, 1902 (2 lid.7, c.41), Section 45, Unemployment Insurance Act,
1920 (10 and 11 Geo. 5, c. 30), section 130, Local Government Act, 1929
(19 & 20 Geo.5, c.17). Instances of a wider power, that of amending other
Acts than the Act conferring the power, are quoted from section 6 of the
Juries Act, 1922 (12 & 13 Geo 5, c.ll), section 20 of the Mental Treatment
Act, 1930 and section 76 Local Government (Scotland) Act, 1929 (19 & 20
Geo 5, c. 25), which empowers the Secretary of State to make by order
"any adaptations or modifications of the provisions of any Act necessary
to bring those provisions into conformity with the provisions of this
Act.""' The Committee recognises 3 " the extreme convenience of provisions
of this kind "from the point of view of those charged with the duty of
bringing into effective operation a far-reaching measure of reform", and
admits that they are "a political instrument which must occasionally be
used", but recommends that they should never be used except for the sole
purpose of bring an Act into operation and should be subject to a time
limit of one year from the passing of the Act.
55 Union of India v. Satyendra Na/b Baner/ee, AIR 1955 Cal. 581. In this case, however,
the court was able to reconcile the relevant provisions in the Act and the rules.
There is some difficult}' in construing the words "by or under" when used in an Act
with reference to matters prescribed. A thing may perhaps be said to be prescribed
"by" the Act when it is expressly provided in the Act; and "under" the Act when it
is provided for by a rule made under the Act, see Munibbai Govindbhaiv. TheNadiad
City Municipality, 51 Bom. 105 atl7.
56 The Emergency Powers (Defence) Act, 1939 (2 & 3 Geo. 6, c.62), by section 1 (2) gave
power by Defence Regulations, made by Order in Council, to - "provide for
amending any enactment, for suspending the operation of any enactment, and for
applying any enactment with or without modification".
57 Donoughmore Committee Report, at 59.
Similar provisions appear in sections 293 and 311 (5) of the Government
of India Act, 1935, section 11(3) of the Indian Independence Act, 1947,
article 372 of the Constitution, section 54 of the Andhra State Act, 1953 (30
of 1953) and section 120 of the States Reorganisation Act, 1956 (37 of
1956). In almost all these cases a time limit is fixed within which the power
should be exercised. As pointed out by the Committee, the conferment of
such powers is necessary to cope with the tremendous political and other
changes involved in the passing of such Act. Such a delegation is defensible
on the ground that the administrative changes involved are so great, that the
measures are of such far-reaching character or that the matters involved are
so complicated that it would be impossible to foresee all possible
contingencies and therefore a modifying power is necessary for an initial
period. Such a provisions is generally regarded as the draftsman's insurance
policy to get over such difficulties. Courts would, however, examine the
power with some care to determine its scope. For example, when article
372 of the Constitution provided that for the purpose of bringing the
provisions of any law in force in India into accord with the Constitution,
the President may, by order, make such modifications and adaptations of
such law, whether by way of repeal or amendment, as may be necessary or
expedient, the court had no difficulty in holding that an adaptation plainly
inconsistent with the Constitution will be invalid, and any adaptation made
by the President will have to be construed as if the President had not
intended to exceed his powers. The words "that any such adaptation or
modification shall not be questioned in any court of law" occurring in the
same article was held not to prevent the court from going into the question
whether the adaptation was inconsistent with the Constitution itself.58 In
doing so the court followed the reasoning in Yaffe 's case cited ante.
POWER TO REMOVE DIFFICULTIES
In many Act, in addition to a power to adapt laws, a power to the executive

in the widest possible terms is conferred to make such orders as the
execudve authority may think fit to remove difficulties in the transition from
an old order of things to a new order. Section 9(l)(d) of the Indian
Independence Act, 1947, for example, authorized the Governor-General to
make provision for removing any difficulties arising in connection with the
transition from the Government of India Act to the provisions of the new
Act by means of orders made by him. The Calcutta High Court observed
58 Munna Lai v. H.R. Scott, AIR 1955 Cal. 451.

in connection with the provision that in view of the tremendous political

changes taking place in India and the responsibility placed on the Governor-
General for piloting the transition, the relevant provisions should be given
the widest possible construction. The court therefore held that section
9(1)(d) itself included a power to adapt existing laws and further, when
section 18(3) of that Act expressly authorized the Governor-General to
make the necessary adaptations may include n o t only consequential
adaptations but also other adaptation. The power to adapt could also be
exercised from time to dme within the period limited for the purpose, if
any.39 Other instances of the conferment of a power to remove difficulties
are: article 392 of the Constitution; section 7 of the Part B States laws Act,
1954 (3 of 1951) which extended a very large number of Acts to the then
newly formed Part B States; section 69 of the Andhra State Act, 1953 (30
of 1953), under which a new State called Andhra Pradesh was created;
section 19, Chandernagore (Merger) Act, 1954 (36 of 1954) by which the
former French Territory of Chandernagore became merged in West Bengal
and section 128 of the States Reorganisation Act, 1956 (37 of 1956), which
re-drew the political map of India. The justification for the conferment of
such wide powers is apparent from the titles of the Acts themselves but it is
a power which should not be taken except in exceptional cases. Its ambit
being undefined, it is liable to abuse, For a forceful criticism on the
conferment of unlimited powers on the executive to remove difficulty, Rex
v. Minister of Health'*1 where Lord Hewart to whom perhaps this was a
flagrant instance of the new despotism, delivered himself in the following
terms.
"The Minister of Health may by order remove the difficulty. The

imagination fails to contemplate at one view the extent and variety
of the power which is given to the Minister under those words. He
may cut the Gordion knot in any way that seems best to him. He
may declare any assessment committee to be duly constituted; he
may 'make any appointment or do any other thing which appears
to him necessary or expedient for securing the due preparation of
the list or for bringing the said provisions into operation'. The
legislature not content with arming the Minister with these
remarkable and varied and far-reaching p o w e r s , goes on to
provide that 'any such order may modify the provisions of this Act
59 Rai Surendra Nath v. Commissioner of Income-Tax, West Bengal, AIR 1955 Cal. 499.
60 (1927) 2 KB 229 at 236.
so far as may appear to the Minister necessary or expedient'. For

what purpose? For carrying the order into effect. This I think,
though I say with some hesitation, may be regarded as indicating
the high water-mark of legislative provisions of this character."
P O W E R T O C O U R T S T O C O N S T R U E A C T S I N S U C H A W A Y AS T O
FACILITATE T H E I R APPLICATION
There is still a further power which is generally conferred on courts in

similar circumstances, whereby, notwithstanding that no provision or
insufficient provision is made for the adaptation of laws, courts are enabled
to construe laws in such a manner without affecting their substance as may
be necessary to appropriate in order to facilitate the application of such
laws. Such examples are to be found in the Burma Laws Act, 1898; section
7, Merged States Laws Act, 1949; section 55 Andhra State Act, 1953 (30 of
1953); section 121, States Reorganisation Act, 1956 (37 of 1956) Paragraph
28 of the A d a p t a t i o n of Laws O r d e r , 1950, h o w e v e r , s o m e w h a t
unfortunately, adopted a slightly different phraseology, whereby the courts
were required to construe the laws with all such adaptations as were
necessary for the purpose of bringing the law into accord with the
Constitution and provided by way of abundant caudon that if any question
arose regarding the adaptations with which the law was to be so construed,
the question should be referred to the appropriate Government, and the
decision of the appropriate Government was to be final. Such a provision
was criticized in no mild terms by the Calcutta High Court in Sunil Kumar
Bose v. Chief Secretary to the Government of West Bengali The Court said that the
President, w h o s e duty it was to make the adaptations, had thereby
transferred his responsibility to the courts, wl jse duty it was to interpret
legislation into a legislative body and the proviso reduced the newly created
legislative body to a position of subordination and inferiority to the
executive. In other words, the judiciary was converted into a legislature with
limited powers and the executive was converted into a judiciary whose
decisions were final. The immediate result of this decision was the
disappearance of the offending provision.
P O W E R T O E X T E N D A C T S WITH M O D I F I C A T I O N S
In India, the power to extend Acts to a new territory "with such restrictions
and modifications" as the extending authority may think fit is one frequently
61 AIR 1950 Cal. 274.

conferred. See the Scheduled Districts Act, 1874 (now repealed); section 10,
Burma Laws Act, 1898; section 7, Delhi Laws Act, 1912; section 12, Ajmer
Merwara (Extension of Laws) Act, 1947 (the two latter Acts have now
been repealed and re-enacted by the Union Territories (Laws) Act, 1950, see
section2); section 11, Chandernagore (Administration) Regulation, 1952.
See also the p o w e r s c o n f e r r e d by section 52A of the (repealed)
Government of India Act to modify the provisions of that Act itself in its
application to special areas and to modify Acts of the Central Legislature or
of a local Legislature in their application to such areas. Paragraph 12 of the
Sixth Schedule to the Constitution authorizes the Governor of Assam to
direct, by notification, that an Act of Parliament or of the Assam
Legislature shall not apply to an autonomous district or region in the State
of Assam or shall apply to such district or region, subject to such exceptions
or modifications as he may think fit to make. Such a power, as has already
been pointed out does not contravene the prohibition against delegation of
essential legislative functions. An authorization to apply an existing law with
medications and exceptions to a new territory does not, however, carry
with it a power to make any change in the policy underlying the Act. But
subject thereto, there is no unconstitutionality in the delegation of such a
power. 62
T H E POWER TO A M E N D SCHEDULES
The mere power to add to or alter the Schedules to an Act is, in the opinion
of the C o m m i t t e e , n o t a b n o r m a l , since the lines along which the
amendments should proceed would have been clearly indicated. For Indian
instances of such a power, see secdon 8(2), Provident Funds Act, 1925;
section 42(6), Reserve Bank of India Act, 1934; section 27, Minimum
Wages Act, 1948; section 4, F^mployees Provident Funds Act, 1952; secdon
641, Companies Act, 1956.
D E L E G A T E D L E G I S L A T I O N & JUDICIAL R E V I E W
(I) G r o u n d s for J u d i c i a l R e v i e w :
Delegated legislation is open to the scrutiny of courts and may be declared

invalid particularly on two grounds: (a) Violation of the Constitution; and
(b) Violation of the enabling Act. The second ground includes within itself
not only cases violation of substantive provisions of the enabling Act, but
also cases of violation of mandatory procedure prescribed. 63 It may also
62 RajNarayan v. The Patna Administration, (1955) 1 SCR 290.

63 Booddingon v. British Transport Police (1998) 2 All ER 203 at 216 (HL).
466 Legislative Drafting - Shaping the IJDV for the New Millennium
be challenged on the ground that it is contrary to other statutory provisions

or that it is so arbitrary that it cannot be said to be in conformity with the
statute or Article 14 of the Constitution or that it has been exercised in bad
faith.64 In Clariant International Ltd. v. SHBI65 the Supreme Court observed:
"When any criteria is fixed by a statute or by a policy, an attempt should be
made by the authority making the delegated legislation to follow the policy
formulation broadly and substantially and in conformity therewith."
Supreme Court in State of Rajasthan v. Basant Nahata 6b pointed out :
" The contention raised to the effect that this Court would not
interfere with the policy decision is again devoid of any merit. A
legislative policy must conform the provisions of the constitutional
mandates. Even otherwise a policy decision can be subjected to
judicial review."
The Supreme Court while dealing with power of exemptions in the case of
B.K. Industries <& Ors. v. Union of India <& Ors. following the Kesavanand Bharti
held:
"It was held therein that the power of amendment conferred by
Article 368 cannot extend to scrapping of the Constitution or to
altering the basic structure of the Constitution. Applying the
principle of the decision, it must be held that the power of
exemption cannot be utilized for, nor can it extend to, the scraping
of the very Act itself."6"
In respect of policy matters, the Supreme Court in Secretary, Ministry of
Chemical <& fertilisers, Govt. of India v. Cipla iJd. 68 , has opined as follows:
"It is axiomatic that the contents of policy document cannot be
read and interpreted as statutory provisions. Too much of legalism
cannot be imported in understanding the scope and meaning of
the clauses contained in policy formulation. At the same time, the
64 Indian Express News Papers v. Union of India, (1985) 1 SCC641 at 6879; Shri Sitaram
Sugar Co. Ltd. v. Union of India AIR 1990 SC 1277 at 1297; State of M.P. v Mahalaxmi
Fabric Mills Ltd. AIR 1995 SC 2213 at 2227; Secretary Ministry of Chemical <& Fertilisers
v. Cipla Ltd, (2003) 7 SCC lat9; Central Dairy Farm v. GlindiaLtd. (2004) 1 SCC 55 at
62.
65 (2004) 8 SCC 523.
66 (2005) 12 SCC 3401.
67 (1993)Suppl.3SCC621.
68 (2003) 7 SCC 1.
Central Government which combines the dual role of policy

maker and the delegate of legislative power, cannot as its sweet will
and pleasure give a go-by to the policy guidelines evolved by itself
in the matter of selection of drugs for price control."
In Indian Express Newspapers (Bombay) Pvt. Ltd. v Union of India,'''' the apex
court opined: " O n the facts and circumstances of a case, a subordinate
legislation may be struck down as arbitrary or contrary to statute if it fails to
take into account very vital facts which either expressly or by necessary
implication are required to be taken into consideration by the Statute or, say
the Constitution."
A distinction must be made between an executive decision laying down a
policy and executive decision in exercise of its legislative power. A
legislation made by the Parliament or by the executive must be interpreted
within the parameters of the well-known principles enunciated by the
Courts. 70
Rules made under the Constitution do not qualify as legislation in true sense
and are treated as subordinate legislation and can be challenged in judicial
review like delegated legislation.71
(II) Compliance with Natural Justice

Delegated legislation which is really legislative in character cannot be
questioned for violating principles of natural justice. 2
In State of Tamil Nadu v. K. Sabanyagam"^ the question arose whether
exemption granted by the Govt. from time to time under section 36 of the
Payment of Bonus Act in respect of the Tamil Nadu Housing Board were
invalid for the reason that the employees of the Board were not given
opportunity to put forward their cases that exemption should not be
granted. The Supreme Court said that where the exercise of power of
69 (1985)1 SCC 641.

70 Bombay Dyeing <& Mfg. Co. \Jd. (3) v. Bombay Environmental Action Group (2006) 3
SCC 434.
71 Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334 (para
62).
72 Iuixmi Khandsari \. State of UP, AIR 1981 SC 873; Union of India v. Cynamide India
Ltd, (1987) 2 SCC 720 at 734; H.S.S.K. Niyamiv. Union of India, AIR 1990 SC 2128
at 2132; State of Punjab v. Tehal Singh AIR 2002 SC 533 at 536; W.B. Electricity
Regulatory Commission v. C.E.S.C. Ud., AIR 2002 SC 3588 at 3600; Pune Municipal
Corporation v. Promoters & Builders Association, AIR 2004 SC 3502 at 3504.
73 AIR 1998 SC 344 at 355 - 363.
exemption depends upon the satisfaction of the delegate on objective facts

placed by one class of persons seeking benefit with a view to deprive the
rival class of persons who have already got the benefit, principal of fair play
and natural justice apply and parties affected by the exemption ought to
have given opportunity to put forward their cases.
In Godawat Pan Massala Products I.P. Ltd. v. Union of India,^4 the Supreme
Court held that a notification issued by the Food (Health) Authority under
Section 7(iv) of the Prevention of Food Adulteration Act, 1954, banning
manufacture and sale of Pan Massala and G u t k a was bad for n o n
compliance with natural justice as the manufacturers of Pan Masala and
Gutka should have been given an opportunity of meeting the facts which
had prompted the authority for banning the production and sale.
(III) C o n f o r m i t y w i t h t h e C o n s t i t u t i o n
Whenever the legislatures confers power on some outside authority to

make subordinate legislation or any order it is implicit that the power
conferred by the enabling Act is to be exercised "in accordance with the
provisions of the Articles of the Constitution." 75
(IV) C o n f o r m i t y w i t h the E n a b l i n g A c t
The powers to make subordinate legislation is derived from the enabling

Act and it is fundamental that the delegate on whom such a power is
conferred has to act within the limits of authority conferred by the Act.76
Rules cannot be made to supplant the provisions of the enabling Act but to
supplement it.77 The delegate cannot override the Act either by exceeding
the authority or by making provisions inconsistent with the Act. But when
the enabling Act itself permits its modification by rules, the rules made
prevail over the provision in the Act.
The delegate has to exercise the power of making subordinate legislation in
accordance with the procedure prescribed, if any. In considering the effect
of non-compliance of a procedural provision of the Act, one has to see
whether the non compliance relates to mandatory or director)' provision. In
the former case defect will be fatal and in the latter case the defect will be
ignored.
74 (2004) 7 SCC 33.

75 Maneka Gandhi v. Union of India, AIR 1978 SC 597at 646.
76 Additional District Magistrate v. Shri Sin Ram, (2000) 5 SCC 451.
77 St. Johns Teachers Training Institute v. Regional Director (2003) 3 SCC 321 at 331.
(V) Retrospectivity of Delegated Legislation

Power may be conferred to make subordinate legislation in the shape of
rules, by laws etc., which have retrospective operation. 78 Such a power may
be either conferred in express words or may be inferred by necessary
implication." 9 Power conferred on the President or Governor or on their
delegates to makes rules under Article 309 of the Constitution impliedly
includes power to make rules retrospective. 80
(VI) Provisions Curtailing Judicial Review

(a) Conclusive Evidence Clause: It usually provide that some final step
such as notification or publication in the Gazette shall be conclusive
evidence that the scheme, rule, bye-law, etc., as the case may be, has been
duly made or has been made in accordance with the provisions of the
parent Act. Such clauses are ineffective to cure a complete want of
authority; 81 or basic defect of jurisdiction. 82 or possibly even a complete
non-compliance of a mandatory procedural requirement. The clauses are,
however, available to cure n o n - c o m p l i a n c e of directory p r o c e d u r a l
requirements or such defects which are not of a fundamental character.
(b) Ganga clause: In modern Acts constituting statutory bodies and
conferring power on them to make delegated legislation provisions are
inserted to put beyond challenge defects of constitution of these bodies
and defects of procedure which have not led to any substantial prejudice.
Supreme court in B.K. Srinivasan v. State of Karnataka^ nick-named these
provisions as "Ganga" clause.
PARLIAMENTARY C O N T R O L OVER L E G I S L A T I O N : PRACTICE I N U N I T E D

KINGDOM
In England, the provision made in the past respecting the placing of
78 Prohibition and Excise SuptdA.P. v Toddy Toppers Co-op. Society Marredapally, AIR 2004
SC 658.
79 Jndramaniv. W.K. Natu, AIR 1963 SC 274 at 286.
80 B.S. Vadera v. Union of India, AIR 1969 SC 118 atl 24, K. Nagrajv. State of AP, (1985)
1 SCC523,M55\,StateofRajasthanv.MangiialPindival, AIR 1996SC2181 at2183,
Bhakta Kamegowda v. State of Karnataka AIR1997SC1038.
81 Corporation of City of Victoria v. Bishop of Vancouver Islands, AIR 1921 PC 240 at 247;
Municipal Board Hapurv. Raghuvendra Kripal, AIR 1966 SC 693 at 696.
82 Trust Mai Lachmi Sialkati Bradari v. Amritsar Improvement Trust, AIR1963SC976at
980.
83 (1987)1 SCC 658 at 669.
delegated legislation before Parliament varied considerably from Act to

Act. Some times no further direction was given. Sometimes it was provided
that the regulation etc. must be laid in draft for a certain period or shall not
operate until approved or shall operate only for a specified period unless
approved within that period, usually without prejudice to the validity of any
action taken under them while they awaited approval. The Committee on
Ministers' Powers recommended that a uniform procedure should be
adopted in future, namely, that where regulations are to be laid before
Parliament without the necessity for an affirmative resolution, they should
be open to annulment but not modification by resolution of either House
within twenty-eight days on which the House had sat, such conferment to
be without prejudice to the validity of any action already taken under the
regulation annulled. Secdon 246(3) of the Government of India Act, 1935,
is an example of such a provision.
A Select Committee on Statutory Rules and Orders appointed by the British

Parliament, in a special report published in October, 1944 (House of
Commons Paper No. 113), drew attention to the anomalies in the machinery
of Parliamentary control and of rules publication. They referred to
(1) the lack of uniformity in the periods for which rules, regulations and
orders have to be laid before Parliament and a similar lack of
uniformity in reckoning the various periods;
(2) the vagueness of the requirement that regulations should be laid before
Parliament as soon as may be after they are made;
(3) the absence of any principle for determining when the affirmative
resolution procedure and when the negative resolution procedure
should be adopted.
T H E STATUTORY INSTRUMENTS A C T , 1946
The Statutory Instruments Act, 1946, was passed as a result of this report.
So far as the third criticism is concerned, this Act leaves it to the Act
concerned to make the choice between the adoptions of the affirmative or
negative procedure because that will depend upon the nature and type of
the Act concerned. Under that Act, where any statutory instrument is
required to be laid before Parliament after being made, a copy of the
instrument has to be laid before each House of Parliament before it actually
comes into operation. An exception is however, made in cases where
instruments have to come into operation before copies can be laid before
Parliament (example, during a recess), but in such cases notification of the
Subordinate or Delegated legislation All
fact and of the reasons for not laying copies before Parliament beforehand
must be given to the two Houses. A standard period of 40 days is
prescribed by section 5 as the period within which action must be taken by
way of negative resolution to annul the instrument. But that section does
not apply to instruments which are subject under the relevant At's to the
affirmative resolution procedure. Section 6 applies to statutory insi uments,
of which drafts have to be laid before Parliament; but the relevant Act do
not prahibit the making of the i n s t r u m e n t w i t h o u t the approval of
Parliament. In such cases the rules must be laid in the form of a draft for the
standard period of 40 days. Cases where instruments have to be subjected
to the affirmative resolution procedure have been left out of the scope of
the Act for the simple reason that such instruments will not be effective
without the affirmative resolution and until that event nothing can happen
under the instrument. 85
This Act repealed the Rules Publication Act, 1893, and included provisions
with regard to the numbering, printing and publication of instruments. In
order to minimize the danger that a m e m b e r of the public may be
convicted for contravening the provisions of an instrument, the existence
of which he could have no means of knowing, this Act provides that in any
proceeding against a person for an offence consisting a contravention of a
statutory instrument, it shall be a defence to prove that the instrument had
not been issued by the Government publishers at the date of the alleged
contravention. If this is proved, the prosecution will then have to rebut it by
showing that reasonable steps had been taken to bring the purport of the
instrument to the notice of the public generally or of persons likely to be
affected by it or of the person accused. 86
85 The Laying of Documents before Parliament (Interpretation) Act, 1948 (11 & 12
Geo. 6, c. 59) clarifies the meaning of the word "laying" in relation to the laying of
documents before Parliament, by stating that such laying shall be according to the
standing orders, directions etc. of the House.
86 See C.K. Allen, 'Statutory Instruments To day' 71 LawQuarterly Review, at 490-506
(1955); C.K. Allen, IMW in the Making, 532 (1951) Carr, on Delegated I legislation in
Parliament. A Survey, at 32; Parliamentary control of Delegated legislation, Public Law, 200
(1956); Legislative Supervision over Delegated legislation; U.K. and American
Practice Compared, British Journal of Administrative IMW, 103 (1956). For certain
suggestions so as to secure that only matters of administration are dealt with in
delegated legislation and not matters of principle, see J.A.G. Griffith, Parliament,
in the legislative Process, 14 Modern Law Review, at 279-296 and 425-436.
472 Legislative Drafting Shaping the IMW for the New Millennium
PRACTICE IN INDIA
In India also the same lack of uniformity as was found in England

prevailed till recently. Some times the rule-making clause required that the
rules should be laid in draft before the Legislature for approval with or
without modification, and the rules could not be issued until such a
resolution was passed. Some times the Act provided that every rule shall be
laid as soon as may be after it is made before the House of the People for
a period of one month and if before the expiration of that period the
House of the People made any modification in the rules or directed that the
rule shall not be made, the rule shall thereafter have effect only in the
modified form or be of no effect, as the case may be. An Act like the
Estate Duty Act, 1953, requires that rules under section 20 shall be laid in
draft before the House of the People for not less than fifteen days before
the date of their final publication. This presumably means that the rules
merely lie before Parliament in the form of a draft and no action is
necessary on the part of Government except to wait for the prescribed
period to expire for making the rules. In a large number of cases the rule-
making section contented itself by merely providing that all rules shall be
laid before Parliament as soon as may be after they are made. In the large
majority of cases, however, no provision was made for the laying of rules
before Parliament at all.
Submission of rules to Parliament for the mere purpose of informing it and
so making the rules public is superfluous because a rule-making power in
India, when given, is almost invariably, whether the enabling Act so stipulates
or not, exercised by notification in the Official Gazette so that publication is
automatically secured. Further, under section 23 of the General Clauses Act,
rules which are made subject to the condition of previous publication by the
relevant Act have to be published in draft for objections or suggestions from
the public for a specified period, and the Act places an obligation on the
executive to consider the objections and suggestions before finalizing he rules
for its promulgation. This procedure has also the merit of securing sufficient
pre-publicity to certain types of rules.
Previous Publication: There is no uniform procedure in India for making
subordinate legislation, except in the case of rules or bye-laws made under
those Central Acts or Regulations which impose the condition of 'previous
publication' which brings into play the procedure prescribed in Section 23 of
the General Clauses Act, 1897. Besides those cases where section 23 of the
General Clauses Act applies, the procedure for making subordinate legislation
will depend upon the provisions, of the enabling Act under which it is made.
Publication after making: When the enabling Act does nor contain any
p r o v i s i o n that the delegated legislation should be p u b l i s h e d , the
consequences of late publication or non publication are matters of doubt
and difficulty. The Supreme Court is inclined in favour of the view that
publication in some suitable form is essential before the delegated
legislation can take effect. In Harla v. State of Rajasthan87, Bost J. said:
"Natural justice requires that before a law can become operative, it must be
promulgated or published. It must be broadcast is some recognizable way
so that all men may know what it is, at the very least there must be some
special ruler or regulation or customary channel by or through which such
knowledge can be acquired with the exercise of due and reasonable
diligence." In B.K. Srinivasan v. State of Karnataka88, where the statute itself
required the publication of the delegated legislation, the Supreme Court
made some general observations which support the view that publication in
some suitable form, even if not specifically required by the statute is
essential for making the delegated legislation effective. The Court said:
"Unlike Parliamentary legislation which is publicly made, delegated
legislation or subordinate legislation is often made unobtrusively in the
chambers of Minister, a secretary to the G o v e r n o r or other official
dignitary. It is , therefore, necessary that subordinate legislation, in order to
take effect, must be published or promulgated in some suitable manner,
whether such publication or promulgation is prescribed by the parent
statute or not. It will take effect from the date of such publication". The
principle enunciated in both these cases, which is still the law, requires some
form of publication before delegated legislation can be effective. In case an
'order' which is directed only to a person and is not of a general nature, it
would be reasonable to expect that the proper method of publication is to
serve it on him or so to publish it that he would certainly know of it. An
order passed but retained in file without being communicated to the person
concerned has no force or authority and no valid existence in law.89
R E Q U I R E M E N T OF L A Y I N G
The object of any requirement of laying provided in enabling Acts is to

subject the subordinate law making authority to the vigilance and control of
the Legislature. A compliance with the 'laying requirement' however, does
not confer any validity to the subordinate legislation if it is in excess of the
87 AIR 1951 SC 467.

88 AIR 1987 SC 1059.
89 State of W.B. v. M R Mandal, AIR 2001 SC 3471 at 3476.
power conferred by the enabling Act.90
MERE LAYING OF RULES BEFORE PARLIAMENT DOES NOT

VALIDATE INVALID RULES
Rules which are outside the scope of the Act under which they are made do
not become valid merely because they have been laid before the legislature.
As observed by the Supreme Court, 1 " "We do not think that where an
executive authority is given power to frame subordinate legisladon within
stated limits, rules made by such authority, if outside the scope of the rule-
making power, should be deemed to be valid merely because such rules
have been placed before the legislature and are subject to such
modifications, amendment or annulment, as the case may be, as the
legislature may think fit."
FAILURE TO LAY RULES BEFORE PARLIAMENT
Failure today the rules before Parliament may n o t invalidate t h e m ,

notwithstanding the rules of the word "shall" in the relevant secdon. In the
United Kingdom, an Act of Indemnity was passed in 1944 (The National
Fire Service Regulation (Indemnity) Act, 1944 to indemnify the H o m e
Secretary for his failure to lay the said regulations before Parliament. In
India, some of the rules made by the Central Government under the All-
India Services Act, 1 9 5 1 , e m p o w e r e d that G o v e r n m e n t to m a k e
regulations in respect of certain matters, but sub-section (2) of section 3 of
that Act did n o t provide for the laying of such regulations before
Parliament. As, however, the regulations formed an integral part of the
rules, it was felt that they should also have been laid before Parliament like
the rules. As this had not been done, Parliament passed an Act called the All-
India Services Regulations (Indemnity) Act, 1975 (19 of 1975) to indemnify
the Central Government and its officers from any liability which may arise
out of such failure, say, to Parliament itself.)
If Parliament control is to be effective much could be said for the view that
this provisions is mandatory in character and failure too lay the rules should
lead to certain specific consequences, although the provisions is silent on the
90 Humkumchandv. Union of India, AIR 1972 SC 2427 at 2431, Atlas Cycle Industries Ltd.
v. State of Haryana, AIR 1979 SC 1149 at 1154; Bharat Hari Singhania v. Commissioner
of Wealth Tax, AIR 1994 SC 1355 at 1369; Bhartidasan v. AlCThi, AIR 2001 SC 2861
at 2869.
91 Kerala State Electricity Boardv. Indian Aluminium Co., AIR 1976 SC 1031 at 1046; see
also Hukum Chandv. Union of India, AIR 1972 SC 2427.
Subordinate or Delegated Legislation Alb
subject. Courts and text-book writers have expressed contrary views on the
subject.92 So far as India is concerned, it has been held that in the case of a
statute directing rules to be laid before Parliament or the State legislature
without any condition attached, the rule is only directory. Though the
statute says that the rules shall be laid before Parliament, as the provisions of
the statute are couched in the public interest, the dereliction of duty by the
Minister or other authority concerned in not following the procedure
should not be made to affect the members of the public governed by the
rules. 93 In this case, the available material on the subject was extensively
examined. With respect, this would seem to be the correct view because as
the provision now stands, the rules become effective once they are made;
there is no period within which they have to be laid before the Legislature,
the phrase used in this context being "as soon as may be"; the public
governed by the rules have already regulated their affairs in accordance
therewith and it would be unjust and inequitable to hold them invalid, if at
all, whether the date chosen for that purpose is the date of promulgation of
the rules or the date on which the court finds them to be invalid because of
non-compliance with the statutory procedure.
The question relating to the effect of non-laying in contravention of a laying
clause was elaborately discussed in Atlas Cycle Industries Ltd. v. State of
Haryana,''4 while dealing with the non-compliance with sub-section (6) of
Section 3 of the Essential Commodities Act, 1955 which provide that every
order made under the section shall be laid before both Houses of
Parliament as soon as may be, after it is made. The Supreme Court after
noticing the earlier cases held that non-compliance with the laying clause did
not affect the validity of the order and make it void. This case was followed
in The Quarry Owners Association v. The State of Bihar 9a where rules and
notifications made by the State Government under Section 15 and 15A of
the Mines and Minerals Act 1957 are required to be laid by simple laying
procedure.
92 Springer v. Doorly, (a decision of the West Indie Court of Appeal) cited in 28

Canadian Bar Review (1950); Bailey v. Williamson, (1878) LR QB 118; Schwart^ Law and
Executive in Great Britain, at 110; Craies, Statute Law, 6th ed., at 317; C.K. Allen, Law
and Order, 108-112(1955).
93 Krishnan v. Road Transport Authority, AIR 1956 Andhra 129; see also Dalmer Singh v.
State of Pepsu, AIR 1955 Pepsu 97, Jan Mohamedv. The State of Gujarat AIR 1966 SC
385; Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149.
94 AIR 1979SCI 149.
95 AIR 2000 SC 2870 at 2896.
476 legislative Drafting Shaping the haw for the New Millennium
R E Q U I R E M E N T OF CONSULTATION:
In some cases enabling Acts contain provisions which lay down the
r e q u i r e m e n t of p r e v i o u s c o n s u l t a t i o n with s o m e n a m e d agency.
Consultation is obligatory only when so provided in the enabling statute and
not otherwise. 96
R E Q U I R E M E N T OF APPROVAL, S A N C T I O N OR P E R M I S S I O N
Requirement of prior approval or sanction, if any, prescribed by the

enabling Act will be held to be mandatory, and subordinate legislation will
have to receive the prior approval 97 or sanction 98 .
S E C T I O N 21 O F T H E G E N E R A L C L A U S E S A C T :
It is implicit, because of section 21 of the General Clauses Act that where a

power to issue notifications, orders, rules or by-laws is conferred then that
power includes a power exercisable in the like manner and subject to like
sanction and conditions to add to amend, vary or rescind any notification,
o r d e r s , rules or by-laws so issued. I n view of Article 367 o f the
Constitution, section 21 of the General Clauses Act, 1897, applies for
construing the Constitution. Therefore, the rules made under Articles 77(3)
166(3) and 309 and orders issued under Article 370 can be amended from
time to time by recourse to section 21. 9 9
SECTION 22 OF T H E G E N E R A L CLAUSES A C T , 1897
Power conferred by the enabling Act to make subordinate legislation may at

times be exercised even before the commencement of the Act. This is
made possible by section 22 of the General Clauses Act, 1897, which
corresponds to Section 37 of the English Interpretation Act, 1889. As
explained by the Supreme Court in Venkateshwarloo v. Suptd. Central Jail100,
Section 22 "is an enabling provision, its intent and purpose being to facilitate
the making of rules, by-laws and orders made before the enactment comes
into force provided they are made after the passing of the Act and
preparatory to the Act coming into force."
96 KrishanPrakashSharmav. Union of India, AIR 2001 SC 1493 at 1506.

97 Gha^iabad Development Authority v. Delhi Auto & General Finance Pvt. lJd.,AlR
1994 SC 2263.
98 Amalgamated'Coalfieldv.JanpadSabha, AIR 1964 SC 1013.
99 Sampat Prakash v. State of ]&K, AIR 1970 SC 1118 at 1124.
100 AIR1953SC49.
Subordinate or Delegated Legislation All
LAYING OF R U L E S FORMULA N O W W E L L S E T T L E D
So far as laying of rules before Parliament is concerned, the formula is now

fairly well settled. The provision which is invariably attached to the rule-
making section reads as follows:
"Every rule made under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session for a total
period of thirty days which may be comprised in one session or in two or
m o r e successive sessions and if, before the expiry of the session
immediately following the session or successive sessions aforesaid, both
Houses agree in making any modification in the rules, or both Houses agree
that the rule should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect, as the case may be, so however,
that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule." 101
PARLIAMENTARY C O M M I T T E E S O N S U B O R D I N A T E L E G I S L A T I O N
Each House of Parliament has now a Committee whose function it is to

scrutinize and report to the House whether the power to make rules,
regulations, bye-laws etc., delegated by Parliament to other authorities are
being properly exercised within the limits of such delegation. Citing rule
320 of the Rules of the House of the People {Jjok Sabha) in this context, the
Committee is required to consider whether
(a) the rules are in accord with the general objects of the Constitution or
the Act pursuant to which they are made;
(b) they contain matter which in the opinion of the Committee should
more properly be dealt with in the Act itself;
(c) they impose any tax;
(d) they directly or indirectly bar the jurisdiction of courts;
(e) they give retrospective effect to any provisions for which there is no
justification in the Act;
(f) they appear to make some unusual or unexpected use of the powers
conferred by the Act pursuant to which they are made; and
(g) generally for any reason the form or purport of the rules calls for
elucidation.
M E M O R A N D U M O N DELEGATED LEGISLATION
As already pointed out, while introducing a Bill the draftsman has to ensure
101 For detail see chapter XIII, Statutory Forms.

478 Legislative Drafting Shaping the Law for the New Millennium
that a memorandum explaining the scope or purport of the delegation of

legislative power, if any, provided for in the Bill is attached to the Bill. This
memorandum has also to indicate whether the proposed delegation is of a
normal or abnormal character, so that even at the initial stage Parliament is
made aware of the power which it is delegating. This memorandum, which
is a requirement under another rule made by Parliament, is not intended to
bar the subsequent scrutiny by the Committee aforesaid and thus there is a
double check on delegated legislation.102
The late Shri Mavlankar, a Speaker of the House, in an address to this
Committee stated that the Members of the Committee are the only
protectors of the people against the new despotism getting aggressive.
Therefore, they have to direct the rule-making power in proper channels.
The Committee, in his opinion, was not conceived in any sense as an
opposition to the executive Government or to the administration, but as a
body of p e r s o n s who are in t o u c h with the people and, not being
concerned in the actual administration, are capable of taking independent
and detached views.
There have been several reports of these Committees and they should be
of great interest to the draftsman. T h e p r o c e d u r e a d o p t e d by the
Committee is to examine each set of rules placed before Parliament and
where ii felt that the executive might have transgressed the limits of the
powers delegated to them, it would formulate questions for answer and
also examine the representatives of the Ministry concerned, if necessary.
The recommendations of the Committee are intended to strengthen
Parliamentary control over subordinate legislation. For instance, it has
been stressed that when a rule making power is conferred, the power
should be exercised not later than six months from the coming into force
of the Act; that rules made should be laid before Parliament within two
days of their making if Parliament is in session; that the memorandum
attached to a Bill explaining the proposals for delegated legislation should
be so drawn as to be of real help to the Committee to understand how
the power is to be exercised; that a rule-making power should not be so
exercised as to include a substantive provisions like barring jurisdiction of
courts in respect of any specified matter, and that if such a provisions is
needed it should find a place in the Act itself; that provisions for
102 Perhaps a committee on Bills to scrutinize them in the light of this memorandum
may enable Parliament to lock the stables before the horses bolt. But exigencies of
administration may rule out such a procedure. There is also the fact that subsequent
examination of the rules actually made is not to be ruled out thereby.
cognizance of offences by courts are pre-eminently matters for the Act

itself and not for rules there under; that rules should not be framed so as
to cause injustice; that where rules are made under various Acts in regard
to matters m o r e or less similar, a certain a m o u n t of uniformity is
observed; that fees charged under rules should not be excessive; that
where a power to exempt any article from duty is taken under a delegated
authority, any exemption granted should immediately be communicated
to Parliament; that, where disciplinary power over subordinates is taken, a
definite procedure for its exercise should be laid down; that where a
delegate is given wide powers to sub-delegate its authority to another
functionary suitable safeguards should be laid down; that the authority
under which the rule-making power is exercised should be specifically
cited in the preamble to the rule for the purpose of enabling all concerned
to know under what precise authority the rule has been made; that rules
should be serially numbered and published in a proper part and section
of the Gazette of India; that rules of importance to the general public
should be published both at the Centre and in the States, simultaneously, if
possible; that, whenever rules made under an Act are laid on the Table of
the House, a statement of objects and reasons and also a statement
containing explanatory notes should be appended thereto." 11
103 Both in England and U.S.A., administrative agencies issue rules to clarify- statutory
provisions. This is done in addition to their power of delegated legislation i.e.
power to issue legally binding regulations conferred upon them by statute.
Interpretative regulations of this type are, in the strict legal sense, not binding on
any one, the reason being that the statute itself and the regulations thereunder
constitute the sole criterion of what the law authorizes and compels or what it
forbids. This however is theory. In practice, the interpreting regulations assume
an effect similar to the statutory regulations. As state by Schwartz, administrative
interpretations are in most cases accepted asfinal.Those affected will conform to
them for they serve as the guide to administrative action. In America indeed they
tend to acquire all but statutory effect because of the great deference which the
courts normally pay to them, where the governing legislation is not wholly clear.
Amrican Administrative I jaw, 54 (1962). Administrative interpretation of law is of
no less significance than administrative rule-making. The practice is also widely
prevalent in India but there has not been much discussion on this aspect of the
matter. In Oudh Sugar Mills v. State of Ml3., AIR 1975 MP 125, the High Court
pointed out that the interpretation put by the Government for a considerable
length of time would have some value; it may be considered as a relevant matter
or an effective guide to a proper interpretation of the statutory provision, but is
not conclusive or binding on the courts.
The recommendations are many and far reaching in character and no

attempt has been made above to make an exhaustive list thereof. Suffice it
to say that the Indian Parliament through its committees keeps a vigilant eye
on subordinate legislation to ensure that rules made are not in excess of the
power given, that they are not unusual in character, that they do not in any
way violate the principles of natural justice and that they do not work any
hardship on the public and so on.
D R A F T I N G OF S U B O R D I N A T E L E G I S L A T I O N
The proposal made by the Committee on Ministers' Powers in the United

Kingdom for improving the drafting of delegated legislation by utilizing
the office of the Parliamentary Counsel was to a very large extent
anticipated in India. Rules under an Act are n o doubt prepared by the
department concerned with the administration of the Act, but they are
invariably submitted before they are made or published as a preliminary to
being made, for examination by the Legislative Section of the Ministry of
Law. The Ministry of Law is concerned to see that the rules proposed to be
made are correctly drawn and are within the limits of the power conferred.
SUB-DELEGATION
The power to sub-delegate must be expressly or impliedly authorized by

the enabling Act. It is, however, not necessary for the purposes of this book
to go deeper into the subject.
In MunnalalJain v. The State of Assam, AIR 1962 SC 386 the wisdom of issuing
executive instructions in matters governed by law was doubted as instructions
cannot obviously override the law; see also BanarsiDassv. Cane Commissioner, U.P.
AIR 1956 All. 725; Brijnandan Prasadv. State of Bihar, AIR 1955 Pat. 353.

Subordinate or Delegated Lesislation

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Subordinate or Delegated Lesislation

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CHAPTER XIV

In dealing with the topic of delegated or subordinate legislation, we will

courts, there is no delegation of legislative power. The law is complete in all

D I S T I N C T I O N B E T W E E N CONDITIONAL LEGISLATION AND

The true distinction would be between the delegadon of power to make

may be raised in the case of the f o r m e r , the latter is generally

Such subsidiary or subordinate legislation may take various forms, e.g.,

12 2006 (11) SCALE 108.

made in exercise of a power conferred by any enactment and will include a

Regulation (as opposed to laws made in the form of Regulations and

As expressed in the definition of'rule', a 'regulation' may be made as a rule

While a rule is general in character and indiscriminate in its application, an

18 Parve%)adir\>. Union of India, AIR 1975 SC 446 at 451.

by a court of law or other authority. It is only where the order is

A "scheme", may be of two kinds. It may embody subordinate legislation

A "proclamation" is the act of proclaiming, a declaration or notice by

21 J.A. Shodhan v. EN. Rana, AIR 1964 SC 648 at 667.

unclaimed property by the police after issuing a proclamation.

A "resolution" passed by Parliament is the form in which that body

THE NEW DESPOTISM

The tendency to regulate certain matters by subordinate legislation as

what safeguards are desirable or necessary to secure the constitutional

REPORT OF COMMITTEE O N MINISTERS' POWERS

The Committee on Ministers' Powers referred to above found the practice

24 Bartley's General Clauses Act, 1897 at 151-152 (1940).

JUSTIFICATION FOR DELEGATED LEGISLTION AND DANGERS I N H E R E N T

Herbert Morrison, writing on delegated legislation in his book Government

First, it really is impossible in modern conditions for Parliament to set out in

The Committee excluded from the purview of delegated legislation and

To the normal type of delegated legislation the Committee found no

29 / lukum Chand v. Union of India, AIR 1972 SC 2427.

Legislature in India have been held to possess wide powers of delegation. 32

constitute the high watermark of delegation of legislative power, they are

Central Government in emergent cases to increase the export duty leviable

INSTANCES TO E N S U R E FINALITY TO D E L E G A T E D LEGISLATION

T h e statutes conferring powers to make rules or orders frequently

Thus, if the intention of the legislature by the formula is to give to delegated

provision of an Act even though it is to be considered to be embodied in

As instances of the delegation in the United Kingdom of a power to

POWER TO REMOVE DIFFICULTIES

In many Act, in addition to a power to adapt laws, a power to the executive

58 Munna Lai v. H.R. Scott, AIR 1955 Cal. 451.

in connection with the provision that in view of the tremendous political

"The Minister of Health may by order remove the difficulty. The

so far as may appear to the Minister necessary or expedient'. For

There is still a further power which is generally conferred on courts in

61 AIR 1950 Cal. 274.

Delegated legislation is open to the scrutiny of courts and may be declared

62 RajNarayan v. The Patna Administration, (1955) 1 SCR 290.

be challenged on the ground that it is contrary to other statutory provisions

Central Government which combines the dual role of policy

(II) Compliance with Natural Justice

69 (1985)1 SCC 641.

exemption depends upon the satisfaction of the delegate on objective facts

Whenever the legislatures confers power on some outside authority to

The powers to make subordinate legislation is derived from the enabling

74 (2004) 7 SCC 33.

(V) Retrospectivity of Delegated Legislation

(VI) Provisions Curtailing Judicial Review

PARLIAMENTARY C O N T R O L OVER L E G I S L A T I O N : PRACTICE I N U N I T E D

In England, the provision made in the past respecting the placing of

delegated legislation before Parliament varied considerably from Act to

A Select Committee on Statutory Rules and Orders appointed by the British

T H E STATUTORY INSTRUMENTS A C T , 1946