DELEGATED LEGISLATION

We will study Delegated Legislation in four parts: -

 Part A: -
1. Meaning of Delegated Legislation
2. Definition of Delegated Legislation
3. Necessity of Delegated Legislation

 Part B : -
1. Delegated Legislation in India
2. Forms of Delegated Legislation
3. Requirement of Delegated Legislation
4. Advantages of Delegated Legislation
5. Disadvantages of Delegated Legislation

 Part C: -
1. Permissible Delegation
2. Impermissible Delegation
3. Sub- Delegation
4. Conditional Delegation

 Part D: -
1. Constitutional Validity of Delegated Legislation in India
 PART – A

Meaning of Delegated Legislation: -

Delegated Legislation can be explained as: - if the function of the legislation
(i.e. Law making) is delegated or entrusted to the executive (Government or
administrative authority) by the legislature, then such delegation and the
resulting legislation made by non-legislative organ is known as – Delegated
Legislation.

For e.g. - SEBI Act, 1992 framed by

PARLIAMENT

(Legislature in India)

Delegates the power of

Rule Making to

Central Government under SEBI Board under S/30 of

S/29 of SEBI Act SEBI Act

The piece of
The technique of BOTH ARE KNOWN
legislation made by
delegating AS DELEGATED
the Government or
legislative power administrative LEGISLATION
authority

Usually, what happens is that the legislature enacts a law covering only the general
principles and policies relating to the subject matter & confers rule-making power
on the government or on some administrative authority.
Definition of Delegated Legislation: -
1. According to Salmond: -
“Delegated Legislation is that which proceeds from any authority other than
the sovereign power & is therefore dependent for its continued existence &
validity on some superior or supreme authority.”

In reference to the definition of Salmond, legislation is of two types: -

Supreme Legislation Subordinate Legislation

When the legislation proceeds When the legislation proceeds

from a supreme or sovereign from any authority other than a
legislature – like Parliament of sovereign power, it is termed
India – it is called SUPREME SUBORDINATE OR
LEGISLATION DELEGATED LEGISLATION

It is dependent for its In Delegated The rules, regulations,

existence & Legislation, the Act of orders etc. made by the
continuance on the the legislature that Executive or
superior or sovereign confers such powers is administrative authority
authority known as ‘Parent Act’ pursuant to such
delegation are
collectively person as: -
SUBORDINATE
LEGISLATION
or
SUBSIDIARY
LEGISLATION
or
CHILD
LEGISLATION
 2. According to M.P. Jain: -
The term ‘delegated legislation’ is used in two senses: -
a. The exercise by a sub-ordinate agency of legislative power delegate to
it by the legislature; or
b. The subsidiary rules themselves which are made by the subordinate
agency in pursuance of the power as mentioned in a.

The first sense in the definition

highlights DELEGATED The second sense in the
LEGISLATION as a definition highlights
“technique” DELEGATED LEGISLATION
by several names – rules,
regulations, byelaws, orders etc.

In reference to the first sense, in

India quite often the term The terms “regulations” & “bye
employed for DELEGATED laws” are usually used to denote
LEGISLATION is “subordinate the legislation framed by statutory
legislation”, it conveys the idea corporation under Delegated
that the authority making the Legislative power
legislation is subordinate to the
legislature

The term used for legislative

framed by Government under
The technique of delegated delegated legislative power is
legislation is extensively used “rule”.
in India

In addition to the rules, regulation

& byelaws, some of other forms
of delegated legislation are
schemes, orders & ordinances etc.
 But we do not have
terminology consistency in
delegated legislation – Rules,
Regulations, byelaws etc. are
used interchangeably.
For e.g. – the Essential
Commodities Act, 1955 uses
three terms – order, notified
order, notification, rule,
regulation – which the Central
government can make in
exercise of its powers under the
Act.

Necessity of Delegated Legislation: -

(Delegated Legislation – Whether a ‘necessary evil’)
Wade & Forsyth in their treatise called “Administrative Law” have remarked that
administrative legislation (delegated legislation) has traditionally been looked upon
as a necessary evil, an unfortunate but inevitable infringement of doctrine of
separation of powers.
Although purely legislative functions are the prime responsibility of the legislature,
to say that no legislative power whatsoever can be delegated would not be possible
in a modern state.
Given the tremendous increase in volume of delegated legislation in modern times,
it would be feasible to revive the old theory of strict separation between the
legislature & executive of the State. Whether one likes it or not, delegated
legislation has become a fact of our political life. It is better that we accept it as a
“necessary evil”. As observed by the Commission on Subordinate Legislation: -

“Today the question is not whether delegated legislation is desirable or not, but
what safeguards & controls can be introduced, so that the power delegated is not
misused or misapplied.”
 PART - B
Delegated Legislation in India: -
One of the most significant developments in administrative law is growth in the
legislative powers of the executive. In constitutional theory, the law making
function essentially belongs to the legislature as the legislature consists of
representatives of people & legislates on their behalf.

Over the years, however, the centre of gravity of power has shifted from the
legislature to the executive. In India the development of Delegated Legislation can
be classified under two eras: -
1. Pre - Constitutional Era
2. Post - Constitutional Era

Pre – Constitutional Era: -

India was under British rule from 1858 to 1947. During this period, the Indian
legislature practiced Delegated Legislation but not in pure form. Delegated
Legislation was performed in sense of Conditional Legislation.

Post – Constitutional Era: -

With the adoption of the concept of the Welfare State, there was a tremendous
growth in the functions of State which resulted into consequent growth in the
number of laws enacted by the legislature. India is developing country and
therefore to fasten the speed of growth right from the ground level it was necessary
to enact more number of legislation and implement them properly. To lessen the
burden of the legislature and to tackle the technical matters for proper
implementation of the legislations, the executive was delegated the power to make
rules & regulations.

Forms of the Delegated Legislation: -

There are six important forms by which the legislature may delegate the law
making power to the executive & administrative authorities: -

First form of delegation: -

Parent Act – Central Act
Delegates rule making power to – Central Government
For e.g. – (i) S/3 of the Defence of India Act, 1971: -
 The Central Government by notifying in the official Gazattee has power
to make rules under this section of Defence of India Act, 1971 as
appears to it necessary for securing defence of India and public safety.
(ii) S/3 of the All India Services Act, 1951: -
The All India services Act, 1951 empowers Central Government under
S/3 to make rules for the regulation of recruitment & the conditions of
persons appointed to All India service.

Second Form of Delegation: -

Parent Act – Central Act
Delegates rule making to – State Government
For e.g. – S/8 of the Opium Act, 1878: -
The Opium Act, 1878 empowers State Government under S/8 by
notifying the Official Gazattee to make rules to regulate the safe custody
of opium warehoused.

Third Form of Delegation: -

Parent Act – Central Act
Delegates rule making power to – Appropriate Government
For e.g. – (i) S/30 of the Minimum Wages Act, 1948: -
The Minimum Wages Act, 1948 empowers the appropriate government
to make rules for carrying out the purpose of the Act.
(ii) S/36 of the Administrative Tribunal Act, 1985; -
The Administrative Tribunal Act, 1985 empowers the appropriate
government to make rules for: -
 Financial & administrative powers of Chairman of a Tribunal
 Salaries, allowances and conditions of services of the officers &
employees of the Tribunal

Fourth Form of Delegation: -

Parent Act – Central Act
Delegates regulation making power to – Administrative authority
For e.g. – (i) S/26 of the Insurance Regulatory and Development Authority Act,
1999:-
The IDRA Act, 1999 empowers Insurance Regulatory & Development
Authority to make regulations to carry out the purposes of the Act.
(ii) S/49 of the Advocates Act, 1961: -
The Advocates Act, 1961 empowers the Bar Council of India under this
section to make rules for discharging its functions under this Act.
Fifth Form of Delegation: -
Parent Act – State Act
Delegates legislative power to – State Government
For e.g. – S/9 of M.P. Electricity Duty Act, 1949: -
The M.P. Electricity Duty Act, 1949 empowers State Government to
make rules to carry all or any of the purpose of the Act.

Sixth Form of Delegation: -

Parent Act – State Act
Delegates legislative power to – Administrative authority
For e.g. – S/11 of M.P. Vidhyut Sudhar Adhiniyam, 2000
The M.P. Vidhyut Sudhar Adhiniyam, 2000 empowers M.P. Electricity
Regulatory Commission under this section to frame regulations for the
conduct of its proceedings & discharge of its functions.

Requirements of Delegated Legislation: -

(Reasons for the development of Delegated Legislation in India)
Ajay Kumar Banerjee vs. Union of India AIR 1984 SC 1130: -
In this case, the Supreme Court observed that the practice of empowering the
executive to make subordinate legislation “has evolved out of practical necessity &
the pragmatic needs of a modern State.”

1. Pressure upon Parliament: -

During the laissez faire era, when the State discharged only limited functions,
the legislature could possibly enact all legislation that was needed, but today it
cannot cope with all the legislative work by itself unaided. If the legislature
attempt to enact law not only with policies but all necessary details as well, its
work load would become so heavy that it may not be able to enact the quantity
of law on diverse subjects which the public demands of it & which only the
legislature can enact. Thus, the legislature passes skeleton legislation &
delegates legislative power to the concerned authority to supply flesh & blood
to the skeleton by formulating details.

2. Technicality: -
Since most of the present day activities of the State relate to socio-economic
matters, legislation tends to be quite technical & complex & therefore expert
knowledge is required to work out the details to fully implement the Act in
view. This can be done better by specialists in the administration rather than by
legislators who are mostly generalists and not experts in these matters.
3. Flexibility and Experimentation: -
The system of delegated legislation has become popular because it has the
advantages of flexibility, elasticity and opportunity for experimentation.
Usually, act present many socio- economic schemes at the legislative stage are
experimental in nature & it is difficult to assume/foresee what problems would
arise in future in working them out in practice. Therefore, the Parliament
frames the broad principles of the Act & delegates legislative power to the
executive for detailing. This detailing is a task of experimentation done by
executive in form of framing rules, regulations, byelaws etc. to fulfill the
objective of Act and making the Act effective for unknown future conditions
without amending the main Act passed by the Parliament.

In other words, it means that the details of the Act need to be constantly
adjusted by the executive for sustaining the utilization of the Act and for
avoiding repetitive amendments in the main Act.

4. Emergency situations: -
Quick action is needed in times of emergencies like war, internal disturbances,
floods, epidemics, strikes, lock outs, bands, terrorist attacks etc. The legislature
cannot meet at short notice & give out legislation immediately. Therefore it is
important to pre-arm the executive with necessary powers to take action at the
movement by framing and imposing needed rules and regulations according to
the situation.
For e.g. – The Defence of India Act, 1971

5. Secrecy: -
In some cases the public interest demands maintaining secrecy (For e.g. –
Demonetization in India) of the schemes or policies and should not be known
until the time fixed for their operation comes.
Other examples are – Rationing schemes etc.

Advantages of Delegated Legislation: -

1. It minimizes the word load of the legislature
2. It enables to bring out flexible legislation (rules & regulation)
3. Legislation on technical matters can be done effectively.
4. It helps the government to tackle the emergency situation.

Disadvantages of Delegated Legislation: -

1. Parliament is not involved in Delegated Legislation – delegated legislation is
prepared by bureaucrats who are not representatives of public.
 2. Public opinion
3. It is unknown till it is notified.

PART – C
Permissible Legislation: -
(Functions which can be delegated)
Obviously, the legislature cannot delegate all its powers and functions to the
executive and administrative authorities. The following are the functions which can
be delegated by the legislature: -

1. Commencement of statute: -
An Act may validly provide that it would come into force on the “appointed
day”, i.e. on a day appointed by the government. As Sir Cecil Carr remarks –
the Legislature provides the gun and prescribes the target, but leaves to the
executive the task of pressing the trigger.1

2. Inclusion: -
Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the
government to extend the provisions thereof to different territories, persons
or commodities, etc. For e.g. - the Essential Commodities Act, 1955 was
made applicable to certain specified commodities but empowered the
Central Government to declare any other commodity as an “essential
commodity” and to make the Act applicable to such commodity.

3. Exclusion: -
There are some statutes which empower the government to exempt from
their operation certain persons, territories, commodities, etc. For e.g. – S/36
of the Payment of Bonus Act, 1965 empowers the government to exempt
any establishment or a class of establishments from the operation of the
Act.2

4. Modification: -
There are several varieties of the modifying powers delegated are of
following types: -

1
Refer – MPVSA Act, 2000 – Chapter I – Preliminary – S/1(3) – Pg 1 – open note
2
Refer – SEBI Act, 1992 - Power of Exempt – S/28 – with Foot Note 127 – Pg 36 – open note
  An Act sometimes contains a provision empowering the executive, in
certain circumstances, to modify some provisions thereof before
applying them to particular territories.
 An Act sometimes contains a provision empowering the executive to
modify the schedule to a statute.
 An Act may empower the government to apply to certain matters
under it provisions from another statute with necessary modification.3

5. Supplying the details: -

In some statutes, the legislative policy is formulated in the Act, but the
function of supplying the details for giving effect to this policy (by the way
of making rules, regulations etc.) is left to the executive.4

6. Suspension: -
Some Acts give the government power to suspend or relax the provisions of
the Act in certain circumstances. For e.g. – S/48(1) of the Tea Act, 1953, the
Central Government is empowered under certain circumstances to suspend
the operation of all or any of the provisions of the said Act.

7. Application of existing laws: -

An Act may authorise the government to adopt and apply Acts prevailing in
one part of the country to other parts of the country, with or without
necessary modifications and changes.

8. Prescribing the penalty: -

Sometimes, an Act empowers the executive to prescribe punishments for its
violations, subject to certain ceilings laid down in the Act itself. For e.g. –
under S/37 of Indian Electricity Act, 1910, the Electricity Board is
empowered to prescribe punishment for breach of the provisions of the Act
subject to the maximum punishment laid down in the Act.

9. Framing Rules, Regulation etc: -

Several Acts contain a provision empower the government to frame Rules,
Regulations, Bye laws etc. which are to be placed before the legislature
which may amend, modify or even repeal the same.5

3
Refer – SEBI Act, 1992 – S/28A – modification – Pg 36 – open note
4
Refer – MPVSA Act, 2000 - S/11, 16, 23,35 – rules & regulations – open note;
5
Refer – MPVSA Act, 2000 – S/55& S/56 – Power to make rules & regulations – open note; Refer – SEBI Act, 1992-
S/29, 30 & 31- open note
 10.“Removal of Difficulties” Henry VIII clause: -
As seen earlier, when the legislature passes an Act, it cannot foresee all the
practical difficulties which may arise in its implementation. Therefore, often
empower the government to make necessary changes to facilitate its
implementation.6

Impermissible Delegation7: -
(Functions which cannot be delegated)
Although delegation of its functions and powers by the legislature is valid in the
above mentioned circumstances, there are other functions and powers which
cannot be delegated, namely the following: -

1. Essential legislative functions: -

It is the duty of the legislature to legislate – and this essential function of the
legislature cannot be passed on to the executive. Although the Constitution
of India contains no express bar in this regard, the courts have taken the
view that the legislative policy must be laid down by Parliament itself and
this power cannot be delegated to the executive. In other words, Parliament
cannot create a parallel legislature. This is known as ‘Excessive Delegation’.

Excessive Delegation – When the Legislature delegates it primary function

(i.e. laying down the policy of law and enacting that policy into a binding
rule of conduct) to the executive is known as Excessive Delegation. The
Legislature should first lay down policy & guidelines & then it can delegate
subordinate legislative functions i.e. “to fulfill up the details.”

2. Repeal of a law: -
The power to repeal a law is an essential legislative function which cannot
be delegated to the executive. Thus, if an Act were to contain a provision
under which the government had the power to repeal the Act, such a
provision would be ultra vires and void.

3. Unlimited power to modify a statute: -

As seen earlier, an Act may allow the executive to modify the Act before
applying it to certain other territories. The legislature cannot empower the

6
Refer – SEBI Act, 1992 – power to remove difficulties – S/34 – Pg 39 – open note; Refer – MPVSA Act, 2000 –
power to remove difficulties – S/54 – open note
7
Read with Constitutional validity of Delegated Legislation
 executive to modify any Act as it pleases, i.e. an unlimited power to modify
a statute (which is an essential legislative function) cannot be delegated.

4. Exemption: -
The legislature cannot delegate an unlimited power on executive to exempt
any person/establishment/commodity whatsoever from the operation of a
statute.8

5. Removal of Difficulties: -
Only a narrow form of “removal difficulties” clause is valid, the same
assumes the proportions of a ‘Henry VIII clause’; it is liable to be struck
down.

6. Retrospective operation: -
Whether or not to give retrospective effect to a statute is a privilege the
legislature – and this essential function cannot be delegated. Thus, the
executive cannot be vested with a power to treat a statute as retrospective if
it deems it fit or expedient to do so.

7. Adoption of future laws: -

In India, the legislature of a State may be empowered to adopt and apply in
its State, a law in force in another State. However, this principle cannot be
extended to laws which may be passed in the future, as this is essentially a
legislative function which cannot be delegated. For e.g. – The State of
Chhattisgarh cannot adopt or apply M.P. Real Estate (Regulation &
Development) Rules because these rules are future laws and still are
enforced in M.P.

8. Imposition of tax: -
The power of imposing a tax is necessarily a legislative function. Hence, this
power cannot be delegated to the executive. Under A/265 of the Constitution
of India no tax can be levied or collected except by the authority of law, and
here ‘law’ means – law enacted by competent legislature and not by the
executive.

8
Refer – MPVSA Act, 2000 – exemption – S/16(2) – open note
 9. Ousting the jurisdiction of the courts: -
The enactment of a provision laying down that courts shall not have
jurisdiction in a particular matter is a purely legislative function – and
cannot therefore, be delegated to the executive.9

10. Penalties and offences: -

Providing that a particular act or omission shall amount to an offence is
essentially a legislative function & therefore, cannot be delegated. However,
the executive can be empowered to prescribe the punishment for a particular
violation of the provisions of an Act.

Excessive Delegation: -
It is well settled that essential & primary legislative must be performed by the
legislature itself and they cannot be delegated to the executive. Essential legislative
function consist of – determination of legislative policy and its formulation as a
code of conduct.

To explain this, we portray the following example: -

Essential function
Determination of Its formulation as a
of Legislature
legislative policy code of conduct
consist of

In case of enacting SEBI Act –

“An Act to provide for the establishment of a Board to protect
Determination of the interests of investors in securities and to promote the
legislative policy development of, and to regulate, the securities market and for
matters connected therewith or incidental thereto be it enacted
by Parliament in the Forty-third Year of the Republic of India”
- Preamble of SEBI Act, 1992

9
Refer – MPVSA 2000 – S/53 – Bar of jurisdiction – open note; Refer – SEBI Act, 1992 – S/15Y & 20A – jurisdiction –
open note

Its formulation as a
code of conduct
Chapter I – PRELIMINARY
Chapter II - ESTABLISHMENT OF THE SECURITIES AND
EXCHANGE BOARD OF INDIA
Chapter III - TRANSFER OF ASSETS, LIABILITIES, ETC., OF THE
EXISTING SECURITIES AND EXCHANGE BOARD TO THE BOARD
Chapter IV - POWERS AND FUNCTIONS OF THE BOARD
Chapter V - REGISTRATION CERTIFICATE
Chapter V A - PROHIBITION OF MANIPULATIVE AND DECEPTIVE
DEVICES, INSIDER TRADING AND SUBSTANTIAL ACQUISITION
OF SECURITIES OR CONTROL
Chapter VI - FINANCE, ACCOUNTS AND AUDIT
Chapter VI A - PENALTIES AND ADJUDICATION
Chapter VI B - ESTABLISHMENT, JURISDICTION, AUTHORITY
AND PROCEDURE OF APPELLATE TRIBUNAL
Chapter VII - MISCELLANEOUS

Essential legislative functions mean laying down the policy of the Act and enacting
that policy into a binding rule of conduct. In other words, the legislature must lay
down legislative policy and purpose sufficient to provide a guideline for
administrative rule making. The policy of law can be gathered from the history,
preamble, title, scheme of the Act or object clause.
Essential legislative functions are exercised by the legislature, all ancillary and
incidental functions can be delegated to the executive.

In Avinder Singh vs. State of Punjab AIR 1979 SC 321: -

The Supreme Court observed that the Constitution of India has created three
organs and entrusted them with certain basic powers – legislative, executive and
judicial. Abdication of these powers by any organ would amount to betrayal of the
Constitution itself and it is intolerable in law.

Abdication means abandonment of sovereignty. When the legislature does not

legislate and entrusts that primary function to the executive or to an administrative
authority, there is an abdication of legislative power.
In Gwalior Rayon Silk Mfg. Co. Ltd. vs. CST AIR 1974 SC 1660: -
The Supreme Court observed that the power to delegate is subject to the condition
that the legislature does not abdicate itself by setting up a parallel legislature.

A statute can be challenged on the ground of excessive delegation must be

subjected to two tests: -
1. Whether it delegates essential legislative function?
2. Whether the legislature has enunciated its policy and principle for the
guidance of the executive?
When a statute is challenged on the ground of ‘excessive delegation’ there are two
interpretations possible: -
 One that makes it unconstitutional
 Other that makes it constitutional

Courts may read down and interpret the disputed statute in a way as to avoid its
being declared unconstitutional. This is being done in view of the facts that today
delegation of legislative power has become a “compulsive necessity”. Delegation
of some part of legislative policy has become compulsive necessity due to the
complexities of modern legislation.

Subordinate Delegation: -
Meaning: -
When a statute confers some legislative powers on an executive and the executive
further delegates those powers to another subordinate authority or agency, it is
called “Sub- delegation”.
Thus in Sub-delegation a delegate delegates further. This process of sub delegation
may go through many stages.

Illustration: -
An important illustration of sub- delegation is found in Securities & Exchange
Board of India Act, 1992.
Section 30 of the Act empowers the SEBI Board to make regulations. This can be
said to be the first stage or “parent” delegation. Section 19 of the Act empowers
SEBI board to delegate its legislative function to any of its official or member.
This can be said to be the second stage or “descendant” delegation (sub –
delegation)10.

Object: -
The necessity of sub-delegation can be supported on the following grounds: -
1. Power of delegation necessarily carries with it the power of further
delegation.
2. Sub-delegation is ancillary to delegated legislation.
3. Any objection to the said process is likely to destabilize the function which
the legislature delegates to the executive.

10
Refer – SEBI Act, 1992 – S/30 & S/19 – Pg 38 & 32 – open note
Delegatus non potest delegare: -
In Barium Chemicals Ltd. vs. Company Law Board AIR 1976 SC 295: -
It was held that the maxim ‘Delegatus non potest delegare’ (a delegate cannot
further delegate) does not embody a rule of law. It merely lays down a rule of
construction of a statute. Hence, keeping in view the facts and circumstances of
each case, construction which would best achieve the purpose and object of the
statute should be adopted.

Sub delegation of legislative power, though generally impermissible, can be

permitted either when such power is expressly conferred by the statute or can be
inferred by necessary implication.

Express power: -
Where a statute itself authorizes an administrative authority to sub-delegate its
powers, no difficulty arises as to its validity since such sub-delegation is within the
terms of the statute itself.11

In Central Talkies Ltd. vs. Dwarka Prasad AIR 1961 SC 606 –

The U.P. (Temporary) Control of Rent and Eviction Act,1947 provided that no suit
shall be filed for the eviction of a tenant without permission either of a District
Magistrate or any officer authorised by him to perform any of his functions under
the Act. In this case, the Supreme Court held that an order granting permission by
the Addl. District Magistrate for eviction of a tenant under the delegation of power
was valid.

In A.K. Roy vs. State of Punjab AIR 1986 SC 2160: -

The power to prosecute under the Prevention of Food Adulteration Act, 1954 was
conferred on the State Government. The State Government, in exercise of
delegated legislation [Prevention of Food Adulteration (Punjab) Rules, 1958
delegated the said power to Food Authority. The Food Authority, by issuing a
notification sub delegated the power to Food Inspector, who prosecuted the
accused. The Supreme Court held that sub-delegation unauthorized and quashed
the notification.

Implied Power: -
The question of dispute arises when there is no specific or express provision in the
statute permitting sub- delegation. In this regard, Griffith has rightly stated that – if
the statute is so widely phrased that two or more ‘tiers’ of sub-delegation are

11
Refer – SEBI Act, 1992 – Pg 32 – open note
necessary to reduce it to specialised rules on which action can be based, then it
may be the court who on its discretion decides to imply the power to make the
necessary sub-delegation legislation.”

Criticism: -
The practice of sub-delegation has been heavily criticised by jurists. It is well
established that the maxim delegatus non potest delegare applies in the field of
delegated legislation as it applies in judiciary and sub-delegation of power is not
permissible unless it is either expressed or necessarily implied.

Critics of sub-delegation attack this practice on the basis of the above maxim. As
pointed out by the Supreme Court in Barium Chemicals Ltd. vs. Company Law
Board AIR 1967 SC 295, the fact that a particular delegate was selected indicates
that he possess the necessary skill and enjoys a particular degree of confidence,
thereby creating a presumption that he should perform the act himself and not re-
delegate his authority to another.

The mechanism of sub-delegation makes parliamentary control less effective,

postpones the law making process and makes publication of rules difficult,
therefore it should be implemented in only unavoidable circumstances. The
Committee on Subordinate Legislation in India some safeguards must be provided
before the delegate is allowed o sub-delegate its authority.

Conclusion: -
As observed in Patchett vs. Leathem (1949) 65 LTR 69, ordinary legislation is
twice blessed, as it passes through both the Houses of Parliament. However, sub-
delegation is four times cursed: -
Firstly, it has not been considered by either House of Parliament;
Secondly, it is generally unpublished;
Thirdly, it is a jumble it has not been considered by is a jumble of legislative and
administrative provisions; &
Lastly, it may be expressed that it is not precise language of a statute.

Conditional Legislation12: -
Meaning: -
In Conditional Legislation, legislature makes the law. It is full and complete. No
legislative function is delegated to the executive. But the said Act is not brought
into force and it is left to the executive to bring the Act into operation on

12
Refer – MPVSA Act, 2000 – S/1(3) – open note
fulfillment of certain conditions or contingencies “contingent legislation.” 13 The
executive has to decide whether the necessary conditions required for the law to be
in operation have been satisfied or not & if they have been so, it should issue a
notification bringing the law into operation. This is called conditional legislation.

Categories: -
Conditional legislation may be classified into three categories: -
1. Where the legislation is “full & complete” but leaves its future applicability
to the executive authority.14
2. Where the legislation is enforced but leaves the power to be withdrawn from
operation of the Act in given area or in given situations to the executive
authority.15
3. Where the legislation leaves it to the executive authority to grant benefit of
the Act to one class depriving the rival class of such benefit.16

Illustrative cases: -
1. Field vs. Clark 36 L Ed 294 (1891): -
In this case, the President was empowered to suspend the operation of an
Act permitting free import of certain products in the US on being satisfied
that the taxes imposed upon such products were reciprocally unequal &
unreasonable. The Supreme Court held the Act valid on the ground that the
Act was complete and the President was given mere power to ascertain &
declare the operation of the Act.

2. R vs. Burah ILR (1879) 4 Cal 172: -

An Act was passed in 1869 by Indian Legislature purported to remove a
district called Garo Hills from the jurisdiction of civil & criminal courts &
from the control of the officers of revenue & vested the administration of
civil & criminal justice in the Lt. General of Bengal. Also S/9 of the Act
empowered the Lt. Governor to extend any provision of this Act to Khasi &
Jaintia hills by notifying it in official gazattee. The Calcutta High Court
declared S/9 of the Act as unconstitutional delegation of legislative power by
the Indian legislature on the ground that the Indian Legislature itself is a
delegate of British Parliament, therefore a delegate cannot delegate further.
The Privy Council on appeal reversed the decision of High Court & upheld

13
Refer – Delegated Legislation – Pre Constitutional era
14
Refer – S/1(3)- MPVSA Act, 2000 – open note
15
Refer – Preventive Detention Law – Maintenance of Internal Security Act – where President (Executive head) has
power to withdraw the operation of the Act
16
Refer – the policy of Reservations
 the constitutionality of S/9 on the ground that it is merely a conditional
legislation. This delegation is not delegation of legislative powers but a
delegation of power of determining as to whether certain conditions, which
legislature lays down, were fulfilled.

3. State of Bombay vs. Narottam Jethabai AIR 1951 SC 69: -

By the Bombay City Civil Court Act, 1948, an additional civil court was
established for Greater Bombay having jurisdiction to try all suits not
exceeding Rs.10, 000 but the State Government was authorised to raise the
jurisdiction upto Rs. 25,000. The Supreme Court in this case held that the
provision was merely a conditional legislation and upheld it. The legislature
itself determined that the new court should be invested with the jurisdiction
upto Rs.25, 000 in value, but left it to the executive to determine when the
said power could be exercised.

4. Sardar Inder Singh vs. State of Rajasthan AIR 1957 SC 510: -

The Rajasthan Tenants’ Protection Ordinance was promulgated for two
years, and under S/3 of this Act, the Rajpramukh was empowered to extend
the life of the said Ordinance by issuing a notification, if required. The
duration of the Ordinance was extended by issuing a notification which was
challenged before the Supreme Court. The court upheld the provision as
being conditional legislation.

Difference between Conditional Legislation & Delegated Legislation: -

In conditional legislation, it is the duty of the executive to apply the law after
performing the function of fact finding (e.g. to enquire whether facts requiring
operation of the Act exist); on the other hand, in case of delegated legislation, it is
left to the discretion of the government whether to exercise the power delegated to
it or not.

In Hamdard Dawakhana case AIR 1960 SC 554: -

The Supreme Court pointed out the distinction between the two in the following
terms: “The distinction between conditional legislation and delegated legislation is
that in the conditional legislation the delegate’s power is that of determining when
legislation shall become effective …and the latter involves delegation of rule
making power which constitutionally may be exercised by the administrative
authority.
Conclusion: -
It is known that in view of the rapid growth of administrative law and acceptance
of the doctrine of delegated legislation, now it is necessary to stick to the artificial
distinction between “delegated legislation” and “conditional legislation”. When the
courts were not readily accepting or approving the doctrine of delegated
legislation, in the guise of conditional legislation, they were upholding the
legislative measures. The doctrine had some validity in pre-Constitution India
because then the courts were not willing to accept delegated legislation in pure
form & therefore, the term conditional legislation was employed in order to uphold
a limited delegation of legislative power.

PART – D

Constitutional validity of Delegated Legislation: -

It can be classified into three stages –
1. When the Privy Council was the highest Court of Appeal
2. When the Federal Court was the highest Court of Appeal
3. When the Supreme Court was the highest Court of Appeal

When the Privy Council was the highest Court of Appeal: -

The Privy Council was the highest Court of Appeal for India till 1949. The
question of constitutional validity of delegated legislation came before the Privy
Council for the first time in R vs. Burah ILR (1879) 4 Cal 172. This decision has
been treated as a leading case for delegated legislation.
Case: - An Act was passed in 1869 by Indian Legislature purported to remove a
district called district called Garo Hills from the jurisdiction of civil & criminal
courts & from the control of the officers of revenue & vested the administration of
civil & criminal justice in the Lt. General of Bengal. Also S/9 of the Act
empowered the Lt. Governor to extend any provision of this Act to Khasi & Jaintia
hills by notifying it in official gazattee. The Calcutta High Court declared S/9 of
the Act as unconstitutional delegation of legislative power by the Indian legislature
on the ground that the Indian Legislature itself is a delegate of British Parliament,
therefore a delegate cannot delegate further. The Privy Council on appeal reversed
the decision of High Court & upheld the constitutionality of S/9 on the ground that
it is merely a conditional legislation. This delegation is not delegation of legislative
powers but a delegation of power of determining as to whether certain conditions,
which legislature lays down, were fulfilled.
When the Federal Court was the highest Court of Appeal: -
The question of constitutionality of delegation of legislative powers came before
the Federal Court in Jatindra Nath Gupta vs. Province of Bihar AIR 1949 SC 175.
In this case, the validity of S/1(3) of the Bihar Maintenance of Public Order Act,
1948 was challenged on the ground that it authorised the provincial government to
extend the life of the Act for one year with such modifications as it may deem fit.
The Federal Court held that the delegation of power to extend the operation of the
Act beyond the period mentioned in the Act17 was unconstitutional delegation of
legislative power because it is an essential legislative function.

When the Supreme Court was the highest Court of Appeal: -

1. Delhi Laws Act, 1912 re AIR 1951 SC 332: -
In this case, a reference was made to the Supreme Court of India under
A/143 of the Indian Constitution18 in the following circumstances-
The Central Government was authorised by S/2 of the Part C States (Laws)
Act, 1950 to extend to any Part C State with such modifications &
restrictions as it thinks fit, any enactment in force in a Part A State and while
doing so, it could repeal or amend any corresponding law which might be in
force in the Part C State19.
The Supreme Court was called upon to decide the legality of the aforesaid
provision. All the seven judges who heard the reference exhibited a sharp
division of opinions on the question of limits to which the legislature in
India could be permitted to delegate its legislative power.
The majority held the provision valid20 subjected to two limitations: -
 The executive cannot be authorised to repeal a law in force and thus,
the provision which empowered the Central Government to repeal a
law already in force in the Part C State is invalid.21

 By exercising the power of modification, the legislative policy should

not be changed; and thus, before applying any law to the Part C State,
the Central Government cannot change the legislative policy.22

17
Refer – Impermissible Delegation – Essential Legislative functions; Refer – Excessive Delegation – Essential
legislative function
18
A/143 – Power of President to consult Supreme Court if any question of law or fact has arisen or may arise,
which is of importance in public interest
19
The Constitution of India made India republic & declared it “Union of States”. The Constitution of India
categorized states into three types – Part A States- former governor’s provinces of British India; Part B States–
Princely State governed by Rajpramukh; Part C States – provinces and princely states governed by Chief
Commissioners; Part D States– governed by Lt. Governor
20
Refer – Permissible Delegation – application of existing laws & modification
21
Refer – Impermissible Delegation – Repeal of law
 The importance of the Delhi Laws Act re, 1912 cannot be under estimated
as; on the one hand, it permitted delegation of legislative power by the
legislature to the executive; while on the other hand, it demarcated the extent
of such permissible delegation of power by the legislature.
In regard to this case, Jain & Jain reached to the following conclusion: -
First, keeping the urgent demand of the modern government in view,
Parliament in India need to delegate legislative power if they are to be
able to cope with multitudinous problems facing the country, for it is
neither practicable nor feasible to expect that each of the legislative
bodies could turn out complete & comprehensive legislation on all
subjects that need to be legislated upon.
Second, since the legislatures derive their powers from the written
Constitution which creates them, they could not be allowed the same
freedom as the British Parliament in the matter of delegation; some
limits should be set on their capacity to delegate.

2. Harishankar Bagla vs. State of M.P. AIR 1954 SC 465: -

S/3 of the Essential Supplies (Temporary Powers) Act, 1946 authorised the
Central Government to make rules for the purpose of maintaining or
increasing supplies of essential commodities & for securing equitable
distribution at fair price. S/6 further provided that the orders made shall
effect notwithstanding anything contained in any law for the time being in
force. The Supreme Court held the delegation valid on the ground that S/3
lays down the legislative policy with sufficient clarity within which the
government can operate. The court also upheld the validity of S/6 on the
ground that it is not a delegation of power to repeal but only an attempt to
bypass difficulty.

3. Edward Mills Co. Ltd. vs. State of Ajmer AIR 1955 SC 25: -
In this case, the Supreme Court decided an interesting question arising under
the Minimum Wages Act, 1948. This Act contains a list of industries to
which the Act has been made applicable by Parliament, and the “appropriate
government” has been authorised to add any industry to which it would also
apply. The Supreme Court upheld the validity of this delegation, observing
that the legislative policy23 which was to guide in the selection of industries
is clearly indicated in the Act i.e. to fix minimum wages to avoid
exploitation of labour due to unequal bargaining power or other reasons.
22
Refer – Impermissible Delegation – Unlimited power of modification
23
Refer - Impermissible Delegation – Essential legislative Function; Refer – Excessive delegation- Essential
legislative function – Legislative policy
 4. Jalan Trading Co. (P) Ltd. vs. Mill Mazdoor Sabha AIR 1967 SC 691: -
With reference to the “removal of difficulties” clause in S/37 of the Payment
of Bonus Act, 1965, which not only empowered the government to remove
the difficulties (by passing an Order), but also made such an Order final. The
Supreme Court held that the clause was invalid on the ground of excessive
delegation. The reasoning of the majority can be summed up as follows –
 Firstly, the government was made the sole judge of whether any
difficulty had arisen.
 Secondly, it was also the sole judge of whether it was necessary to
remove such a difficulty.
 Thirdly, it was also the sole authority to decide whether its order was
consistent whether its order was consistent with the Act.
 Lastly, such an order of the government was declared to be “final”.24
But later, the minority view was appreciated and followed.
5. M.P. High Court Bar Association vs. Union of India (2004) 11 SCC 766: -
The Supreme Court declared that under the Constitution, the power to
legislate lies with the legislature. Hence, the power to make laws cannot be
delegated by the legislature to the executive. In other words, a legislature
can neither create a parallel legislature nor destroy its legislative character.
Essential legislative functions must be retained by the legislature. It is
always open to the legislature to delegate executive ancillary power of rule
making.

6. Food Corporation of India vs. Bhanu Lodh (2005) 3 SCC 618: -

In this case, S/6(2) of the Food Corporation Act, 1964 has empowered
government to issue “policy instruction” to the Board of Directors of the
Corporation. In the exercise of this power, the government issued policy
instructions regarding recruitment policy. However, after receiving
complaints of corruption in appointments, the government issued further
instructions declaring those appointments as void. The question before the
court was – Whether these later instructions are the power of the government
under the Act and hence constitutional? Upholding the constitutionality of
instruction, the court opined that policy instruction may include instructions
not only with regard to the organisation & management but also with regard
to the corruption in recruitment as it would in the long run may affect the
interest of the consumers and producers for whom the Food Corporation of
India is established.
24
Refer – Impermissible Delegation – Removal of Difficulty clause
Conclusion: -
Delegated legislation can be declared unconstitutional only in case of clear
violation of a statute or the Constitution beyond all reasonable doubts. The
judiciary in India has become liberal towards Delegated Legislation as delegation
of some part of legislative powers is a compulsive necessity due to complexities of
modern concept of State.