Administrative Law - Part III - Slides.pdf

Delegated Legislation
Shibam Talukdar

Conceptual Background
• According to Salmond, legislation is either supreme or subordinate.
Whereas the former proceeds from sovereign or supreme power, the latter
flows from any authority other than the sovereign power, and is, therefore,
dependent for its existence and continuance on superior or supreme
authority.
• Delegated legislation, thus, is a legislation made by a body or person other
than the sovereign in Parliament by virtue of powers conferred by such
sovereign under the statute.
• A simple meaning of the expression delegated legislation may be given as
under:
• When the function of legislation is entrusted to organs other than the
legislature by the legislature itself, the legislation made by such organs
is called delegated legislation.

• According to Jain and Jain, the term “delegated legislation” is used
in two senses:
1) exercise by a subordinate agency of the legislative power
delegated to it by the legislature, or
2) the subsidiary rules themselves which are made by the
subordinate authority in pursuance of the power conferred on it
by the legislature.

• In its first application, it means that the authority making the legislation is
subordinate to the legislature. The legislative powers are exercised by an
authority other than the legislature in exercise of the powers delegated or
conferred on them by the legislature itself. This is also known as “subordinate
legislation”, because the powers of the authority which makes it are limited by
the statute which conferred the power and consequently, it is valid only
insofar as it keeps within those limits.
• In its second connotation, “delegated legislation” means and includes all rules,
regulations, bye-laws, orders, etc. Thus, the object of the Minimum Wages
Act, 1948 is “to provide for fixing minimum wages in certain employments”.
The Act applies to employments mentioned in the Schedule. But the Central
Government (executive) is empowered to add any other employment to the
Schedule if, “in the opinion of the Government” the Act should apply.

• The Essential Commodities Act, 1955 enumerates certain commodities as
“essential commodities” under the Act. But the list given in the statute is not
exhaustive and the Central Government is empowered to declare any other
commodity as “essential commodity” and to apply the provisions of the Act to it.
• The Payment of Bonus Act, 1965 empowers the Central Government to exempt
any establishment or a class of establishments from the operation of the Act,
having regard to the financial position and other relevant considerations.
• The Defence of India Act, 1962 authorised the Central Government to make “such
rules as appear to it to be necessary or expedient” for the defence of India and
maintenance of public order and safety.
• The Income-tax Act, 1961 empowers the Board to make rules “for carrying out
the purposes of the Act and for the ascertainment and determination of any class
of income”.

• The statute enacted by the legislature conferring the legislative power
upon the executive is known as the “parent Act” or “primary law” and
the rules, regulations, bye-laws, orders, etc. made by the executive in
pursuance of the legislative powers conferred by the legislature are
known as subordinate laws or subsidiary laws or the “child legislation”.

Subordinate Legislation and Supreme Legislation: Distinction
• Whereas an Act, enactment or a statute is made by the legislature,
subordinate or delegated legislation is created by an executive or
administrative authority. Both are the products of “legislative function” (in
wider sense) of the State having the “force of law” in their application to
subjects. But there is a distinction between the two.
• As Salmond states, an Act of legislature proceeds from supreme power of the
State and has no “rival” in the field. It also does not derive its authority from
any other organ of the State. Subordinate legislation, on the other hand, is
framed by the executive and owes its existence, continuance and validity on
superior or supreme authority, i.e. legislature.
• An executive body can make subordinate legislation only if such power is
conferred on it by a competent legislature, not otherwise. Again, a
subordinate law-making body is bound by the terms of its delegated or
derivative authority.

• In Chief Settlement Commr. v. Om Prakash, AIR 1969 SC 33, the Supreme
Court stated:
• It is essential to emphasise that under our constitutional system the
authority to make the law is vested in Parliament and the State
Legislatures and other law making bodies and whatever legislative
power the executive administration possesses must be derived directly
from the delegation of the legislation and exercised validly only within
the limits prescribed. The notion of inherent or autonomous law-making
power in the executive administration is a notion that must be
emphatically rejected.

• Where Parliament is supreme and sovereign, it is omnipotent and its
legislative power is unlimited, e.g. the British Parliament.
• In Britain it has been said, “Parliament can do every thing, but make a man a
woman and a woman a man.”
• A statute enacted by the British Parliament is not open to judicial review and
cannot be declared ultra vires or unconstitutional by a court of law.
• In India, a law made by Parliament is open to challenge on the ground that it
violates provisions of the Constitution.
• Delegated legislation in India can be challenged as not only being ultra vires
the Constitution but also as being inconsistent with the parent Act.
• Subordinate legislation can be challenged on any of the grounds on which the
plenary legislation is challenged.
• Every subordinate legislation must yield to the plenary legislation.

Delegated Legislation: A Necessary Evil?
• Please refer to your textbook(s).

Reasons behind the growth of Delegated Legislation
• Pressure upon Parliamentary time
• Technicality and complexity of subject matter
• Flexibility
• Experimentation
• Confidentiality
• Emergent situations
• Complexity of modern administration

Classification of Delegated Legislation
(a) Title-based classification
• Delegated legislation may be in the forms of rules, regulations, bye-laws,
notifications, schemes, orders, ordinances, directions, etc.
(b) Discretion-based classification
• A discretion may be conferred on the executive to bring the Act into operation
on fulfilment of certain conditions. Such legislation is called “conditional” or
“contingent” legislation.

Classification of Delegated Legislation
(c) Purpose-based classification
• A classification may be based on nature and extent of power conferred and
purposes for which such power can be exercised. Thus, executive can be
empowered to fix an appointed day for the Act to come into force; to supply
details; to extend the provisions of the Act to other areas; to include or to
exclude operation of the Act to certain territories, persons, industries,
commodities; and to suspend or to modify the provisions of the Act, etc.
(d) Authority-based classification
• A statute may also empower the executive to delegate further powers
conferred on it to its subordinate authority. This is known as “sub-delegation”.

Different Forms of Delegated Legislation
1. Central Act to Central Government
2. Central Act to State Government
3. Central Act to Central and State Governments
4. Central Act to Statutory Bodies
5. State Act to State Government
6. State Act to Statutory Bodies
7. State Act to Municipality/Panchayat

Central Act or Parliamentary Law to Central Government
• Central Act  Delegated Legislation  Union Government
• Section 3 of Defence of India Act, 1962
• “Power to make rules.—(1) The Central Government may, by
notification in the Official Gazette, make such rules as appear to
it necessary or expedient for securing the defence of India and
civil defence, the public safety, the maintenance of public order
or the efficient conduct of military operations, or for maintaining
supplies and services essential to the life of the community.”

Central Act or Parliamentary Law to Central Government
• Section 3 of All India Services Act, 1951
• “Regulation of recruitment and conditions of service.—(1) The Central
Government may, after consultation with the Governments of the States
concerned, and by notification in the Official Gazette make rules for the
regulation of recruitment, and the conditions of service of persons
appointed to an All-India Service.
• (1A) The power to make rules conferred by this section shall include the
power to give retrospective effect from a date not earlier than the date of
commencement of this Act, to the rules or any of them but no
retrospective effect shall be given to any rule so as to prejudicially affect
the interests of any person to whom such rule may be applicable.”
• Rules and regulations made by the Central Government to laid before the
Parliament.

Central Act or Parliamentary Law to State Government
• Central Act  Delegated Legislation  State Government
• Section 3 of The Waqf Act, 1995 empowers the State
Governments to make rules specifying qualifications of
“mutawalli” in case a waqf has specified qualifications for the
same.
• Section 8 of The Opium Act, 1878 empowers the State
Governments to make rules to regulate the safe custody of
opium warehouses, the levy of fees for such warehousing, etc.

Central Act to Central and State Governments
• Central Act  Delegated Legislation  Central and State Governments
• The Essential Commodities Act, 1955 empowers the Central
Government to add or remove a “commodity” from its Schedule in
consultation with the State Governments. The Act empowers the Central
and State Governments to fix prices of foodgrains. Section 5 of the Act
permits the Central Government to sub-delegate its power of making
orders and issuing notifications to a subordinate officer or authority or
to a State Government or its subordinate officer or authority.
• The Motor Vehicles Act, 1988, through its several provisions, empowers
the Central and the State Governments to make rules for various
purposes such as licensing, registration, etc.

Central Act to Statutory Bodies
• Central Act  Delegated Legislation  Statutory Bodies
• Section 3 of the Reserve Bank of India Act, 1934 establishes and
incorporates the statutory body, Reserve Bank of India. Section 28A of
the Act empowers the RBI to make regulations, with previous sanction
of the Central Government, in connection with special bank notes and
special one rupee notes.
• Section 3 of the Securities and Exchange Board of India, 1992 establishes
and incorporates the statutory body, SEBI. Section 30 of the Act
empowers SEBI to make regulations consistent with the Act and the
rules made thereunder to carry out the purposes of the Act

State Act to State Government
• State Act  Delegated Legislation  State Government
• Section 148 of the Bombay Prohibition Act, 1949 empowered the Bombay
State to make rules for the purpose of carrying out the provisions of the
Act or any other law for the time being in force relating to excise
revenues—including regulating the import, export, transport, collection,
sale, purchase, bottling, consumption, use or possession of any intoxicant,
[denatured spirituous preparation] or hemp, mhowra flowers or molasses.
• Section 59 of the Gujarat Agricultural Produce Markets Act, 1963
empowers the State Government to make rules, either generally or
specially for any market area or market areas for the purposes of carrying
out the purposes of the Act.

State Act to Statutory Bodies
• State Act  Delegated Legislation  Statutory Bodies
• Section 7 of the Gujarat National University Act, 2003 empowers
the University to make regulations for regulating the affairs and
the management of the University.

State Act to Municipality/Panchayat
• State Act  Delegated Legislation  Municipality/Panchayat
• Municipalities and Panchayats have separate legal existence.
• Section 104 of the Rajasthan Panchayati Raj Act, 1994 empowers
the Panchayats to frame bye-laws to prevent damage to public
streets and Panchayat property, to regulate sanitation,
conservancy and drainage in its Panchayat Circle, to regulate the
disposal of carcasses of dead animals, to regulate the places used
for the sale of meat or fish and wine, etc.

Different Forms of Title
• Rules, regulations, orders, bye-laws
• In England, there exists a classification.
• Procedural law made by the executive – Rules.
• Substantive law made by the executive – Regulations.
• Judicial or quasi-judicial decisions of administration – Orders.
• Laws made by the executive in relation to regulating and controlling the
conduct of government bodies – Bye-laws.
• In Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331, it was held that in
India, there exists little or no such distinction.

Purpose-based Delegation
1) Power to bring an Act into force.
2) Power to extend the life of an Act.
3) Power to extend to other territories.
4) Power to include.
5) Power to exclude.
6) Power to adopt.
7) Power to fill in details.
8) Power to prescribe punishment.
9) Power to modify.
10) Power to remove difficulties.

Power to bring an Act into force
• Power given to Central Government to bring the Act into force. The function
which legislature could have performed is delegated to executive, whereby
executive is determining the enforcement of an enactment.
• The Legal Services Authorities Act, 1987
• Section 1(3) states, “It shall come into force on such date as the Central
Government may, by notification, appoint; and different dates may be
appointed for different provisions of this Act and for different States…”
• Came into force on 9th November 1995
• The Chit Funds Act, 1982
• Section 1(3) states that the Act shall come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint,
and different dates may be appointed for different States.

Power to extend life of an Act
• Sometimes legislation may be prescribed for a particular period of
time or territorial area. A part of legislative functions is to determine
the life and application of an enactment.
• Bihar Maintenance of Public Order Act, 1947
• Section 2 contained a provision under which the Provincial
Government, with the assent of both Houses of the State
Legislature, could, by a notification, prolong life of the Act for a
further period of one year than the period already specified
(after 15 March 1948).

Power to extend application of an Act
• Laws may be meant for a particular territory. The power to
extend the application of the law to other territorial areas
might be within the competence of the executive.
• The Tea Districts Emigrant Labour Act, 1932
• Section 38(2) authorised the Central Government to
extend the provisions of the Act to any other land and
premises in Assam in addition to the area already
specified in the Act.

Power to include
• Legislation may include items, persons, groups of persons, or
institutions as being within its purview.
• Power to include refers to power to include more items, persons,
groups of persons, or institutions to the existing list.
• The Minimum Wages Act, 1948
• Section 27 empowers the State Governments to add to either
Part of the Schedule any employment in respect of which
minimum rates of wages should be fixed under the Act. The
Schedule shall in its application to the State be deemed to be
amended accordingly.

Power to exclude/exempt
• Power to exclude/exempt refers to power to exclude items, persons, groups
of persons, or institutions from the existing list (Schedule) for a specified
period or exempt items, persons, groups of persons, or institutions from
the application of the Act.
• The Payment of Bonus Act, 1965
• Section 36 empowers the appropriate Government to exempt an
establishment or class of establishment from all or any of the
provisions of the Act, for such time period and subject to such
conditions as may be specified, if it is of opinion that it will not be in
public interest to apply all or any of the provisions of this Act
thereto, having regard to the financial position and other relevant
circumstances of any establishment or class of establishment.

Power to adopt
• A law which is implemented in one territory could be
adopted and applied to another territory.
• The Union Territories (Laws) Act, 1950
• Section 2 empowered the Central Government to
extend, by way of notification in the Official Gazette, to
implement any enactment which is in force in a State to
certain Union Territories.

Power to fill in details
• Legislature makes skeleton legislation.
• Essential Commodities Act, 1955
• Substantive lawmaking power is given to the Central
and State Governments, whereby they are required to
fill the gaps in the enactment by way of delegated
legislation.

Power to fill in details
• Legislature makes skeleton legislation.
• Essential Commodities Act, 1955
• Substantive lawmaking power is given to the Central and State
Governments, whereby they are required to fill the gaps in the enactment
by way of delegated legislation.
• Export (Quality Control and Inspection) Act, 1963
• Section 7 gives wide-ranging powers to the Central Government to
establish, recognise, or withdraw recognition from agencies for quality
control or inspection or both. Section 8 empowers the Central
Government to recognise or establish marks to denote conformity with
standard specifications.

Power to prescribe punishment
• Prescribing punishment for defined offences could be done
by the executive through delegated legislation.
• Indian Electricity Act, 1910
• The Central Electricity Board may, in making any rule
under this Act, direct that every breach thereof shall be
punishable with fine which may extend to three
hundred rupees, and in the case of a continuing
breach, with a further daily fine which may extend to
fifty rupees.

Power to modify
• Executive has the power to make changes without changing the very
character of the law.
• Modification—
1) Incidental Modification
2) Substantial Modification
• Rajnarain Singh v. The Chairman, Patna Administration, 1954 AIR 569
• Lachmi Narain v. Union of India, AIR 1976 SC 714
• In the cases, it was held that executive, through delegated
legislation, can make modification which are incidental in nature.
Modification cannot amount to substantial modification. If done
so, it is/shall be invalid.

Power to remove difficulties (Henry VIII Clause)
• If in the implementation of a law, any difficulty arises where it
becomes inoperative, executive can come up with a certain legislation
to make it functional. This is known as the power to remove
difficulties.
• Income-tax Act, 1961
• Section 298 provides that if any difficulty arises in giving effect
to the provisions of the Act, the Central Government may, by
general or special order, do anything not inconsistent with such
provisions which appears to it to be necessary or expedient for
the purpose of removing the difficulty.

Delegated Legislation in the USA
• Field v. Clark (1892)
• The US Supreme Court held that Congress cannot delegate its
legislative powers.
• This universally recognised principle, which maintains the integrity of
the system of governance, is ordained by the Constitution.
• There are two principles under which delegated legislation cannot be
permitted in the USA (Frankfurter, J.):
1) Separation of powers
2) Delegatus non potest delegare
• People delegated their lawmaking power to the Congress and
Congress cannot further delegate the same to the executive.

• Panama Refining Co. v. Ryan (1935)
• Section 9(c) of the National Industrial Recovery Act of 1933
authorised the President to prohibit the transportation in
interstate and foreign commerce of petroleum and
petroleum products or withdrawn from storage in excess of
the amounts permitted by state authority.
• Any violation of an order of the President issued under the
said subsection shall be punishable by a fine, not to exceed
$1,000, or imprisonment not to exceed six months, or both.

• The President then delegated that power to the Secretary of the
Interior through a series of executive orders that required all
petroleum companies to provide monthly statements under oath
verifying details of their business practices and to retain all work-
related documents for potential inspection by the Department of
the Interior, among other things.
• Two Texan oil companies, Panama Refining Co. and Amazon
Petroleum Corp. filed separate lawsuits challenging the Secretary
of the Interior’s regulations and Section 9(c) of the NIRA.

• The District Judges in both cases sided with the companies against
the government, but the Fifth Circuit Court of Appeals ruled in favor
of the federal government and directed that both lawsuits be thrown
out.
• The cases then appeared together before the Supreme Court under
the name Panama Refining Co. v. Ryan.
• The Court ruled 8-1 that Section 9(c) of the National Industrial
Recovery Act unconstitutionally delegated legislative power to the
President, which also rendered the executive orders invalid.

• The majority opinion was that the attempted delegation was plainly void
because the power sought to be delegated was legislative power, but
nowhere in the statute did Congress declare or indicate any policy or
standard to guide or limit the President when acting under the delegation.
• Dissent:
• Justice Benjamin Cardozo felt that the “declaration of policy” in Section
1 of the Act, stating that there was a national emergency, was a
sufficient definition of a standard to make the statute valid.
• It is not dignifiable on the part of the Court to search for such standard
and policy.
• If legislature retains the power of repeal, anything can be delegated.

• A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935)
• The US Supreme Court invalidated Section 3 of the National Industrial
Recovery Act of 1933 (NIRA) in violation of the nondelegation
doctrine.
• The case concerned Congress’ delegation of legislative power to the
executive branch to administer NIRA as well as the federal
government’s power to oversee intrastate commerce.
• NIRA authorised the National Recovery Administration to create
industry-wide “codes of fair competition”, with input from both
businesses and labor unions, to replace existing antitrust laws.

• Under NIRA, the National Recovery Administration formulated
the “Live Poultry Code”, which set rules for the poultry industry
regarding hours, wages, health and safety, and other practices.
• Schechter Poultry Corporation was charged and convicted of 19
code violations by the US District Court for the Eastern District of
New York.
• Schechter appealed the District Court’s decision, but the US
Court of Appeals for the 2nd Circuit sustained all but two of the
convictions.

• Schechter petitioned the US Supreme Court; one of the arguments
was that NIRA violated the nondelegation doctrine by unlawfully
delegating legislative authority to the National Recovery
Administration.
• The United States Supreme Court ruled unanimously in favor of
Schechter, holding that Section 3 of NIRA violated Article I of the U.S.
Constitution by delegating legislative power to the executive branch
without first establishing an intelligible principle—effectively allowing
the president “to exercise an unfettered discretion to make whatever
laws he thinks may be needed.”

• In particular, NIRA authorized the National Recovery Administration
to create industry-wide codes of fair competition but failed to define
the parameters of fair and unfair competition.
• The absence of these definitions played a significant part in the
majority opinion’s argument that NIRA represented an
unconstitutional delegation of congressional power.
• Justice Benjamin Cardozo concurred with the court’s judgment but
argued that because of its attempt to regulate intrastate matters such
as hours and wages, even Congress did not have sufficient authority
to enforce the Live Poultry Code.

• National Broadcasting Co., Inc. v. United States, 319 U.S. 190 (1943)
• The Communications Act of 1934 authorised the Federal
Communications Commission (“FCC”) to promulgate regulations that
encouraged the larger and more effective use of radio in the public
interest, convenience, or necessity.
• Although this delegation of legislative authority was expansive, it was
not unconstitutionally vague and indefinite because the statutory
public interest standard guided the FCC’s determinations.
• The FCC was allowed to issue special regulations designed to correct
the abuses disclosed by its investigation of radio stations engaged in
network broadcasting.

• National Broadcasting Co., Inc. v. United States, 319 U.S. 190
(1943)
• The US Supreme Court held that the Act confers broad power
upon the FCC to regulate broadcasters in the public interest.
• The Act defined the public interest as the interest of the listening
public in “the larger and more effective use of radio.”
• The Court also rejected the argument that the public interest
standard is sufficiently vague to represent an unconstitutional
delegation of power.
• Initiation of acceptance of delegated legislation in the USA.

• Yakus v. United States, 321 U.S. 414 (1944)
• The Emergency Price Control Act of 1942, as amended,
empowered the Price Administrator with the legislative power
of Congress to control commodity prices in time of war.
• The purpose of the Act is to prevent wartime inflation.
• The Act provides for the establishment of an Office of Price
Administration under the direction of a Price Administrator
appointed by the President.

• The Administrator is authorised, after consultation with representative
members of the industry so far as practicable, to promulgate
regulations fixing prices of commodities which “in his judgment will be
generally fair and equitable and will effectuate the purposes of this
Act” when, in his judgment, their prices “have risen or threaten to rise
to an extent or in a manner inconsistent with the purposes of this Act.”
• The Administrator is directed in fixing prices to give due consideration,
so far as practicable, to prices prevailing during a designated base
period, and to make adjustments for relevant factors of general
applicability.

• The essentials of the legislative function are preserved when Congress
has specified the basic conditions of fact upon whose existence or
occurrence, ascertained from relevant data by a designated
administrative agency, it directs that its statutory command shall be
effective.
• The standards prescribed by the Act, with the aid of the “statement of
considerations” required to be made by the Administrator, are
sufficiently definite and precise to enable Congress, the courts and the
public to ascertain whether the Administrator, in fixing the designated
prices, has conformed to those standards.

Delegated Legislation in Pre-independence India
• Queen v. Burah [1878] UKPC 1
• The Act XXII of 1869 passed by the Indian Legislature dealt with the
Governor General’s power to:
• bring the Act in effect,
• determine what laws were to be applicable, and
• extend application of provisions of the Act to other areas.
• The Act was passed to remove Garo Hills from the civil and criminal
jurisdiction of Bengal and vest the powers of civil and criminal
administration in officers appointed by the Lt. Governor of Bengal.
• The Lt. Governor was further authorised by S. 9 of the Act to extend any
provision of the Act with incidental changes to Khasi, Naga and Jaintia Hills.

• One Burah was tried for murder by the Deputy Commissioner of Khasi
and Jaintia Hills and was sentenced to death.
• The question was whether the functions of the Lt. Governor would be
categorised as delegated legislation.
• The matter went before the Calcutta High Court which found S. 9 to be
ultra vires the powers of the Indian Legislature since it was a
delegation of the British Parliament.
• The Calcutta High Court held that delegation of legislation by the
Indian Legislature was impermissible.

• The Privy Council observed that the Indian Legislature is not an agent
or delegate of the British Parliament and was intended to have
plenary powers of legislation.
• It was observed that the Indian Legislature had exercised its judgment
as to the place, person, law, powers and what the Lt. Governor was
required to do was to make it effective upon fulfilment of certain
conditions.
• This is called conditional legislation which was upheld by the court.

• Emperor v. Benoari Lal Sarma, 1945 (47) BomLR 260
• The Governor General promulgated the Special Criminal Courts
Ordinance of 1942 on the ground of declaration of an emergency on
the outbreak of war under the powers vested in him by Section 42 of
the Government of India Act, 1935.
• The Ordinance delegated the power to the provincial governments in
to declare this law applicable in their case of an emergency.

• Emperor v. Benoari Lal Sarma, 1945 (47) BomLR 260
• The Privy Council validated this delegation on the ground of
conditional legislation.
• The Privy Council observed that it was a piece of conditional legislation
as the legislation was complete and what had been delegated was the
power to apply the law on the fulfilment of certain conditions.

• Jatindra Nath v. Province of Bihar, (1949) 2 FCR 595
• On the eve of independence, the Federal Court had held that
there could be no delegated legislation in India except for
• Section 1(3) of the Bihar Maintenance of Public Order Act,
1948 vested powers on the provincial government to stretch
the life of the Act to that of a year as it may deem fit.
• The validity of the section was challenged.

• Jatindra Nath v. Province of Bihar, (1949) 2 FCR 595
• Two questions before the Federal Court:
• Can executive extend the life of an Act through delegated legislation?
• Can executive modify an Act through delegated legislation?
• The Federal Court held that delegated legislation is not permissible.
• It was further held that delegated legislation cannot extend the life of an
Act or modify the same.
• With this decision, confusion was created among the courts regarding
the limits of delegation of legislative powers.

Delegated Legislation in Post-independence India
• Delhi Laws Act, 1912, re (AIR 1951 SC 332)
• The President of India, under Article 143 of the Constitution of India, sought the opinion
of the Supreme Court on the question of the constitutionality of the three following Acts:
1) Section 7 of the Delhi Laws Act, 1912
• Empowered the provincial government to extend to the Delhi area any law which Is
in force in India with modification and restriction.
2) Section 2 of the Ajmer-Merwara Act, 1947
• Empowered the provincial government to extend to the province of Ajmer-Merwara
any law in force in other province with modification and restriction.
3) Section 2 of the Part C States (Laws) Act, 1950
• Empowered the Central Government to extend to Part C States any Act which is in
force in any Part A States with such modification and restriction as it thinks fit.
• Section 2 states that while extending any law, the Government is empowered to
repeal or amend any corresponding law which is in force in Part C.

• Five questions arose in this case:
• Can delegated legislation extend a law?
• Can delegated legislation modify a law?
• Can delegated legislation restrict a law?
• Can delegated legislation repeal a law?
• Can delegated legislation amend a law?

• Arguments advanced:
• There were two extremist views put forth by the counsels.
• MC Setalvad took the view that power of delegation comes along
with the power of legislation and the same does not result in
abdication of the powers.
• The opposing counsel took the view that there exist separation of
powers in the country and India follows delegatus non potest
delegare. Therefore, there is an implied prohibition on delegation of
power.

• The Supreme Court declared delegated legislation to be valid, but the power to
repeal or amend cannot be delegated.
Name of Judge Q1 (extend) Q2 (modify) Q3 (restrict) Q4 (repeal) Q5 (amend)
Justice HJ Kania Invalid Invalid Invalid Invalid Invalid
Justice Fazal Ali Valid Valid Valid Valid Valid
Justice Patanjali Sastri Valid Valid Valid Valid Valid
Justice Mehr Chand Mahajan Invalid Invalid Invalid Invalid Invalid
Justice BK Mukerjea Valid Valid Valid Invalid Invalid
Justice SR Das Valid Valid Valid Valid Valid
Justice Vivian Bose Valid Valid Valid Invalid Invalid

• Summary of Judgments:
• “Separation of powers” is not a part of the Constitution of India.
• Indian parliament was never considered as an agent of anybody.
Therefore, the doctrine of delegatus non potest delegare is not
applicable.
• Parliament cannot completely abdicate itself by creating a parallel
authority.
• Only ancillary functions can be delegated.
• Essential legislative functions cannot be delegated. Essential functions
involve laying down the policy of the law and enacting that policy into
binding rules of conduct.

• Minority Judgment:
• Chief Justice Kania, formed part of the minority along with Mahajan, J.
• The Chief Justice declared that, whether sovereign or subordinate, the
legislative authority can delegate if it stands the three basic tests:
1) It must be a delegation in respect of a subject or matter which is within the
scope of the legislative power of the body making the delegation.
2) Such power of delegation is not negatived by the instrument by which the
legislative body is created or established; and
3) It does not create another legislative body having the same powers and to
discharge the same functions which it has, if the creation of such a body is
prohibited by the instrument which establishes the legislative body itself.

• Hamdard Dawakhana v. Union of India, AIR 1960 SC 554
• Section 3 of the Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 laid down a list of diseases for which
advertisement was prohibited and authorized the Central
Government to include any other disease in the list.
• The Supreme Court held the provision to be invalid as no criteria,
standards or principles had been laid down therein, and the power
delegated was unguided and uncontrolled.
• It may be noted that the legislative policy had already been laid down
in the Preamble and title of the Act.

• Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. The Assistant Commissioner of
Sales Tax & Ors., 1974 AIR 1660
• S 8(2)(b) of the Central Sales Tax Act, 1956 authorised levying of sales
tax on interstate sales at the rate of 10% or at the rate applicable to sale
or purchase of goods in that state, whichever is higher.
• This provision was challenged on the ground that Parliament, in not
fixing the rate itself and in adopting the rate applicable within the
appropriate state, has not laid down any legislative policy and had
abdicated its legislative function.
• The provision was upheld to be valid by all the five judges.

• Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax
& Ors., 1974 AIR 1660
• Justice Khanna gave the “Standard Test”: When legislature confers powers on an
authority to make delegated legislation it must lay down policy, principle or
standard for the guideline for the authority concerned.
• Justice Mathew gave the “Abdication Test”: As long as the legislature can repeal
the parent act conferring power on the delegate and withdraw the authority and
discretion it had vested in the delegate, the legislature does not abdicate its
powers. (Abdication refers to conferment of arbitrary power by the legislature upon
a subordinate body without reserving for itself control over that body.)
• The majority refused to accept this test.

• MK Papiah and Sons v. Excise Commissioner, (1975) 1 SCC 492
• Sections 22 and 71 of the Mysore Excise Act, 1965 delegated power to fix
rates of excise duty to the Government by making rules. Rules made under
the Government were to be laid before the State Legislature.
• The question was whether the legislature has abdicated its essential
legislative function.
• Justice Mathew observed that the laying of the rules before the legislature
was a sufficient check on the power conferred on the delegate.

• MK Papiah and Sons v. Excise Commissioner, (1975) 1 SCC 492
• Justice Matthew reinforced the “Abdication Test” in this case and held the
legislation to be valid.
• “The dilution of parliamentary watch-dogging of delegated legislation may be
deplored but, in the compulsions and complexities of modern life cannot be
helped.”
• Welcoming the departure, HM Seervai stated that the unanimous judgment in
MK Papiah showed that “after twenty-five years of wandering in the legal maze
of its own creation, the Supreme Court of India, like the Supreme Court of the
United States has come round to the rig expressed by the Privy Council in 1878.”

• Kerala State Electricity Board v. Indian Aluminum Co., 1976 AIR 1031
• Section 2(a) of the Kerala Essential Articles Control (Temporary Powers)
Act, 1961 defines “essential article” as meaning any article (not being an
essential article as defined in Essential Commodities Act, 1955) which may
be declared by the Government by a notification to be an essential article.

• Kerala State Electricity Board v. Indian Aluminum Co., 1976 AIR 1031
• The Supreme Court held that legislature cannot delegate the essential legislative
functions, which means that the Legislature must declare the policy of the law
and provide a standard for the guidance of the subordinate lawmaking authority.
• The Kerala Act authorizes the Government to declare any article as essential
except those mentioned in the Essential Commodities Act, 1955 without laying
down any definite criteria or standards. This is surrendering unguided and
uncanalised power to the executive. The Act cannot be called an instance of
• The powers conferred on the Government by the Kerala Act exceed the limits of
permissible delegation.

• St. John Teachers Training Institute v. National Council for Teacher Education,
(2003) 3 SCC 321
• The Supreme Court emphasised on the need and necessity of delegated
legislation.
• It was observed that the legislature cannot possibly foresee every
administrative difficulty that may arise in operating a statute. Delegated
legislation fill those gaps and details.
• Rules framed by the executive in exercise of delegated power, however, cannot
supplant the law enacted by the legislature but can supplement it. Delegated
legislation made in exercise of power under the parent Act is supporting
legislation and has the force and effect, if validly made, as the Act itself.

• Kiran Gupta v. State of Uttar Pradesh, (2000) 7 SCC 719
• Section 9 of the Uttar Pradesh Secondary Education Services Commission
and Selection Boards Act, 1982 was challenged on the ground that
essential legislative function prescribing guidelines for recruitment of
teachers had been delegated to the Commission.
• Reading Section 4 (Composition of Commission), the Supreme Court held
that the Commission was a body composed of experts (one sitting or
retired member of judiciary and other experts in the field of education)
and could be entrusted with the duty of selection of teachers.

• Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group
(2006) 3 SCC 434
• The Supreme Court held that the presumption as regards the
constitutionality of law is available not only in case of law enacted by
Parliament or State Legislature but also in case of delegated legislation.

• Madhya Pradesh High Court Bar Assn. v. Union of India (2004) II 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.

• Madhya Pradesh High Court Bar Assn. v. Union of India (2004) II SCC 766
• Essential legislative functions must be retained by the legislature itself.
• Such functions consist of determination of legislative policy and its
formulation as a binding rule of conduct.
• But it is equally well-settled that once essential legislative function is
performed by the legislature and the policy has been laid down, it is always
open to the legislature to delegate to the executive ancillary and
subordinate powers necessary for carrying out policy and purposes of the
Act as may be necessary to make the legislation complete, effective and
useful.

Conditional Legislation
• “Conditional legislation” may be described as “a statute that
provides controls but specifies that they are to go into effect only
when a given administrative authority fulfils the existence or
conditions defined in the statute.”
• In conditional legislation, legislature makes the law. It is full and
complete.
• No legislative function is delegated to the executive; but the
parent Act is not brought into force, and it is left to the executive
to bring the Act into operation on fulfilment of certain conditions
or contingencies.

Categories of Conditional Legislation
1) Where the legislation is “full and complete” but leaves its
future applicability to the executive authority.
2) Where the legislation is enforced, but leaves the power to
be withdrawn from operation of the Act in a given area or
in given situations to the executive authority.
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.

Cases on Conditional Legislation
• Field v. Clark, 36 L Ed 294
• The Tariff Act of 1890 authorised the President by proclamation to
suspend the operation of the Act, permitting free introduction into the
US of certain products, upon his finding that the duties imposed upon
such products were reciprocally unequal and unreasonable.
• The Supreme Court held the Act valid on the ground that the Act was
complete and the President was a mere agent of Congress to ascertain
and declare the contingency upon which the will of Congress was to take
effect.
• The legislature cannot delegate its powers to make a law but it can make
a law to delegate a power to determine some fact or state of things
upon which the law intends to make its own action depend.

• King Emperor v. Benoari Lal Sarma, AIR 1945 PC 48
• By promulgating an Ordinance, the Governor General was empowered
to set up special courts, but the operation of the Ordinance was left to
the Provincial Government on being satisfied that emergency had come
into existence.
• The Calcutta High Court held that there was excessive delegation and
the Ordinance was, therefore, invalid. The Federal Court confirmed the
decision of the Calcutta High Court.
• The Privy Council reversed the decision and upheld the validity of the
Act by stating that it was a piece of conditional legislation as the
legislation was complete and what had been delegated was the power
to apply the Act on fulfilment of certain conditions.

• Sardar Inder Singh v. State of Rajasthan, AIR 1957 SC 510
• The Rajasthan Tenants’ Protection Ordinance was promulgated
for two years.
• Under Section 3 of the Ordinance, 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.

• M.P. High Court Bar Assn. v. Union of India, (2004) II SC 766
• The Madhya Pradesh Reorganisation Act, 2000 empowered the
State Government to abolish State Administrative Tribunal.
• The validity of the provision was challenged on the ground that
the delegation of power conferred on the State to abolish the
tribunal was in the nature of “excessive delegation” as it was
“essential legislative function” or “legislative policy”.

• M.P. High Court Bar Assn. v. Union of India, (2004) II SC 766
• Negativing the contention and holding the provision as conditional
legislation and referring to earlier decisions, the Supreme Court stated:
“In the case on hand also, the Act of 2000 as enacted by Parliament
was full and complete when it left legislative chamber. There was,
therefore, no question of delegation of legislative power by the
legislature in favour of the executive. What was left to the executive
was merely to decide whether to continue the Administrative Tribunal
or to abolish it. The State Government, after considering the facts and
circumstances decided not to continue the Tribunal which was within
the power of the State Government and, hence, no objection can be
raised against exercise of such power.”

Conditional Legislation and Delegated Legislation:
Distinction
Ground of Distinction Conditional Legislation Delegated Legislation
Need to supplement the
Parent Act
The Parent Act is “full and complete”. The
subordinate law does not need to fill any
void.
The Parent Act might contain gaps. The
subordinate law might be required to fill
those gaps.
Discretion Duty of the executive to apply the law
after performing the function of fact-
finding.
Discretion of the executive whether to
exercise the power delegated to or not.
Extent of powers
[Hamdard Dawakhana v.
Union of India, AIR 1960
SC 554]
Limited/restricted powers: power to
determine when the legislative-declared
rule of conduct shall become effective.
Wide-ranging powers: delegation of rule-
making power which constitutionally may
be exercised by an administrative agent.
Threat of excessive
delegation
[State of Tamil Nadu v.
K. Sabanayagam, (1998)
I SCC 318]
Conditional legislation contains “no
element of delegation of legislative
power” and is not open to attack on that
ground (excessive delegation).
Delegated legislation confers “some”
legislative power on an outside authority
(executive) and as such is open to attack
on the ground of excessive delegation.

Sub-delegation
• When a statute confers some legislative powers on an executive
authority and the latter further delegates those powers to
another subordinate authority or agency, it is called “sub-
delegation”.
• Thus, in sub-delegation, a delegate delegates.
• This process of sub-delegation may go through many stages.
• If we may call the enabling Act the “parent” and the delegated
and sub-delegated legislation the “children”, the “parent” in its
own lifetime may beget “descendants” up to four or five degrees.

Sub-delegation and Sub-sub-delegation
• Section 3 of the Essential Commodities Act, 1955 empowers the
Central Government to make rules.
• This can be said to be the first-stage or “parent” delegation.
• Under Section 5, the Central Government is empowered to delegate
powers to its officers, the State Governments and their officers.
• This can be said to be the second-stage or “descendant” delegation
(sub-delegation).
• When the power is further delegated by the State Governments to
their officers, it can be said to be the third-stage delegation (sub-
sub-delegation).

Sub-delegation: Illustration
• Under Section 3 of the Essential Commodities Act, 1955, the
Sugar Control Order, 1955 was made by the Central Government
(first-stage delegation).
• Under the Order, certain functions and powers were conferred
on the Textile Commissioner (second-stage delegation).
• Clause 10 to empowered the Textile Commissioner to authorise
an officer to exercise on his behalf all or any of his functions and
powers under the Order (third-stage delegation).

Object of Sub-delegation
• The necessity of sub-delegation can be supported, inter alia, 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 subvert the
authority which the legislature delegates to the executive.

Express Power of Sub-delegation
• Where a statute itself authorises 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.
• In Central Talkies Ltd. v. 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.
An order granting permission by the Addl. District Magistrate to
whom the powers were delegated was held valid..

• In Allingham v. Minister of Agriculture and Fisheries, (1948) I All
ER 780 (DC), under the relevant statute, the Committee was
empowered by the Minister of Agriculture to issue directions.
The Committee sub-delegated its power to its subordinate
officer, who issued a direction, which was challenged.
• The court held that sub-delegation of power by the committee
was not permissible and the direction issued by the subordinate
officer was, therefore, ultra vires.

• In Ganpati Singhji v. State of Ajmer, AIR 1955 SC 188, the parent
Act empowered the Chief Commissioner to make rules for the
establishment of proper system of conservancy and sanitation at
fairs.
• The rules made by the Chief Commissioner empowered the
District Magistrate to devise his own system and see that it was
observed. The Supreme Court declared the rules ultra vires as
the parent Act conferred the power on the Chief Commissioner
and not on the District Magistrate and, therefore, the action of
the Chief Commissioner sub-delegating that power to the District
Magistrate was invalid.

• In A.K. Roy v. State of Punjab (1986) 4 SCC 326, 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, viz.
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 sub-delegation unauthorised and
quashed the notification.

• Sometimes, a statute permits sub-delegation to authorities or officers
not below a particular rank or in a particular manner only.
• As per settled law, if the statute directs that certain acts shall be done in
a specified manner or by certain persons, their performance in any other
manner than that specified or by any other person than one of those
named is prohibited.
• In Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619, under the relevant
statute, the Central Government was empowered to make rules for
detention of any person by an authority not below the rank of District
Magistrate.
• Where the order of detention was passed by an Addl. District
Magistrate, the action was held bad.

Implied Power of Sub-delegation
• Refer to textbook.

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