OUT SOURCING OF LAW MAKING POWER TO THE

ADMINISTRATION

Submitted By: Submitted To:

Ananya Singh (Roll No. 1537) Prof. (Dr.) I. P. Massey

Amita Sinwar (Roll No. 1535) Dean Faculty of Law

Semester V (Section A) B.A.LL.B.(Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(July - November 2019)

 ACKNOWLEDGMENT
On the completion of this project, we take the opportunity of thanking the people who
contributed in the completion of it. Without whose aid, contribution and help, this project
wouldn’t have seen practicability.
First, we extend our heartfelt gratitude to our Administrative Law Teacher, Prof. (Dr.) I.P.
Massey whose continuous guidance and support provided us with the much needed impetus
and gave us a better insight into the topic. His support and enthusiasm for new endeavours of
learning provided us with a new perspective into our research. We are also grateful to the IT
Staff for providing all necessary sources and facilities for carrying out our research and
executing this work. We thank all members of the Library Staff for providing us the
assistance whenever needed.
We also thank our friends and batch mates for providing us the much needed aid whenever
required. Most importantly, we would like to thank our parents for providing us the much
needed force for accomplishing this project.

TABLE OF CONTENTS

Page | 2
Acknowledgment.......................................................................................................................2

Table of Contents.......................................................................................................................3

Abstract......................................................................................................................................4

Factors Leading to the Growth of Delegated Legislation..........................................................6

Delegation of Legislative Power in Delhi Laws Act Case.........................................................7

Restraints on Delegated Legislation.........................................................................................24

Parliamentary Control......................................................................................................24

Effectiveness of Parliamentary Control...........................................................................30

Procedural Control...........................................................................................................32

Judicial Control: Doctrine of Ultra Vires.........................................................................38

Conclusion................................................................................................................................42

Bibliography.............................................................................................................................44

ABSTRACT
“There would be an end of everything where the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of extracting law, that of
executing the public resolutions and of trying the causes of individuals.”

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 - MONTESQUIEU

The theory of separation of powers signifies three formulations of structural classifications of

governmental powers, namely (i) the same person should not form part of more than one of
the three organs of the Government, for example: ministers should not sit in Parliament; (ii)
one organ of the Government should not interfere in any other organ of the Government; and
(iii) one organ of the Government should not exercise the function assigned to any other
organ.

The aim of this doctrine is to guard against tyrannical and arbitrary powers of the State. The
rationale underlying the doctrine has been that, if all power is concentrated in one and the
same organ, there would arise the danger that it may enact tyrannical laws, execute them in a
despotic manner, and interpret them in an arbitrary fashion without any external control.
Though in the face of the complex socio-economic problems demanding solution in a modern
welfare state, it may no longer be possible to apply the separation theory strictly,
nevertheless, it has not become completely redundant and its chief value lies in emphasizing
that it is essential to develop adequate checks and balances to prevent administrative
arbitrariness. Thus, it has been stated about the doctrine: “Its objective is the preservation of
political safeguards against capricious exercise of power; and incidentally, it lays down lines
of an effective division of functions. Its logic is the logic of popularity rather than strict
classification. The great end of the theory is, by dispensing in some measure the centres of
authority, to prevent absolutism.”1

In India, the doctrine of separation of powers has not been accorded a constitutional status.
Apart from the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic and
dogmatic division of powers.2

The Apex Court in Ram Jawaya Kapoor v. State of Punjab3 held as follows:

“In India, not only is there a functional overlapping but there is personal overlapping also.
The Supreme Court has the power to declare void, the laws passed by the legislature and the
actions taken by the executive if they violate any provision of the Constitution of the law
passed by the legislature in case of executive actions. Even the power to amend the
Constitution by the Parliament is subject to the scrutiny of the Court. The Court can declare
1
S.P. SATHE, ADMINISTRATIVE LAW (7th ed., 2010).
2
Upendra Baxi, Development in Indian Administrative Law, PUBLIC LAW IN INDIA (1982) 136.
3
Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549.

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any amendment void if it changed the basic structure of the Constitution. The president, in
whom the executive authority is vested, exercises law making power in the form of ordinance
making power and also judicial power, by virtue of Article 103(1) and 217(3). The legislature
besides exercising law-making powers exercises judicial powers in cases of breach of its
privilege, impeachment of the President and the removal of the judges. “Indian Constitution
has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the
functions of the different parts or branches of the Government have been sufficiently
differentiated and consequently, it can be very well said that our Constitution does not
contemplate assumption by one organ or part of the State of functions that essentially belong
to another.”

From the above discussion it becomes clear that the doctrine in its classical sense, which is
structural rather than functional, cannot be literally applied to any modern Government
because neither can the powers of the Governments be kept in water tight compartments nor
can any Government run on strict separation of powers. In the same manner, Prof. Wade
writes that the objection of Montesquieu was against accumulation and monopoly rather than
interaction.4 Montesquieu himself never used the term ‘separation’. Therefore, not impassable
barriers and unalterable frontiers but mutual restraint in the exercise of power by the three
organs of the State is the sole of the doctrine of separation of powers. Hence the doctrine can
be better appreciated as a doctrine of “checks and balances” and in this sense administrative
process is not an antithesis of the doctrine of separation of powers.

Thus it reached the state where the legislature could not make the law in full to cope up with
the situation due to the interference of the state in the multiple facets of life. Admittedly, the
legislature in India lacks experience and expertise to make laws taken into account the
present and future requirement in a developing country. A law is made to suppress mischief
and to advance a remedy. The remedy should be beneficial for the society in future too. That
technical know-how and expertise can be attributed only to the executive wing of the
Government. Therefore, basically it was decided that by retaining the policy of law making
with the legislature, the details, the procedures and the method of implementation can be left
to the wisdom of the executive, authorizing them to supply fresh and blood to the skeletal
legislature enacted by the legislature. This transfer of authority to make laws to the executive
is generally known as delegation of legislative power and the law thus made by the executive
as delegated legislation.
4
Delegated Legislation in India, ILI [1964] 166-169.

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 FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION
Some of the main factors responsible for enhanced reliance on delegated legislation can be
summarised as below:

1. Busy Legislature:

Parliament and State Legislature are too busy to deal with the increasing mass of legislations,
which are necessary to regulate daily affairs.

2. Technicality and knowledge:

Modern legislation requires technicality and expertise knowledge of problems of various

fields, our legislators, who are politicians are not expected to have such knowledge.

3. Experiments opportunities:

Subordinate legislations are more flexible, quickly and easily amendable and revocable than
ordinary legislation, in case of failure or defect in its application.

4. Contingencies:

When contingencies arise which were not foreseeable at the time of making it, subordinate
legislation can pass an act quickly to handle them.

5. Emergency Powers:

Quick, effective and confidential decisions are not possible in body of legislatives. So,
executives are delegated with power to make rules to deal with such situations.

DELEGATION OF LEGISLATIVE POWER IN DELHI LAWS ACT CASE

The basic principle of delegates non potest delegare has been diluted to due to the increasing
ambit of administrative law. The increasing domain of State activity has led to the Parliament
and State Legislatures delegating their legislative power to the executive. The importance of
delegated legislation or for that matter sub-delegation is so immense that even in England,
which has no Constitution, this aspect was raised when occasions of conferment of powers on
Sub-ordinate bodies became frequent and assumed large scope, questions about the

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advisability of that procedure were raised and a Committee on the Minister's Powers, what is
generally described as the Donoughmore Committee was appointed.

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

The first case wherein the Supreme Court considered delegated legislation in India, was the
case of In Re: The Delhi Laws Act, 19125. Facts of the case are very simple, however, it
raised the interesting point of law regarding the validity of delegated legislation. The case
was filed under Article 143 of the Constitution of India. The facts of the case being simple
wherefore certain Sections of (a) Delhi Laws Act (13 of 1912), S.7, (b) Ajmer-Merwara
(Extension of Laws) Act (52 of 1947), S.2 and (c) Part C States (Laws) Act (30 of 1950), S.2
were scrutinized by the Court for their constitutionality. The issue thus being simple, whether
they were intra or ulta-vires the Constitution of India. In all the three items of legislation,
mentioned above, there had been, what may be described, as conferment by the legislatures,
which passed the respective enactments, to an outside authority, of some of the powers which
the legislative bodies themselves could exercise.

History surrounding the Case:

To understand the present case better, we have to divide Indian era into basically three: the
pre independence, post independence and the post constitution.

The authority regarding delegated legislation in the pre-independence period was primarily
held by Queen v. Burrah6. In this case, the Act in question (Act XXII of 1869) deals with the
Governor General’s power to bring the Act in effect, determine what laws were to be
applicable and the power to extend application of provisions of the Act. Here an Act was
passed by the Indian legislature to remove Garo Hills from the civil and criminal jurisdiction
of Bengal and vested the powers of civil and criminal administration in an officer appointed
by the Lt. Governor of Bengal. The Lt. Governor was further authorized by S.8 of the Act to
extend any provision of this Act with incidental changes to Khasi and Jaintia Hills. One

5
In Re Delhi Laws Act, AIR 1951 SC 332.
6
Queen v. Burrah, 1873 3 AC 889.

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Burrah was tried for murder by the Commissioner of Khasi and Jaintia Hills and was
sentenced to death.

The question was whether these functions would be categorized as delegated legislation. The
Court held that the above mentioned powers were conferred only on the fulfilment of certain
conditions and hence this was conditional legislation, a concept all together different from
delegated legislation. The court also stated that “it is a general principle of law in India that
any substantial delegation of legislative authority by the legislature of the country is void”. 7
The case thus lays down that substantive delegation i.e. delegation of the important functions
are void in India and that delegation, if at all possible would have to be conditional.

The three questions primarily dealt with whether a law in existence before the independence,
after independence or after the Constitution can be extended to another province or area by a
notification by the Government without legislative deliberation. Specifically, they are: the
limits of delegation were however not laid down in the above case. Under such circumstances
confusion arose in respect of the policy to be followed. India looked into the American
system, where unlimited power cannot be delegated as a consequence of the doctrine of
separation of powers, or the English concept where as much power as necessary can be
delegated due to the unquestioned supremacy of the Parliament. It was left open to the courts
to follow either one of the models. Inadequacies of these models lead the Indians to the
Constitution in search of an answer. But even the Constitution was silent about this concept.
It was in this under these circumstances that the President of India under Article 143 of the
Constitution asked the courts, opinion on the three questions.

1. Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in
what particular or particulars or to what extent ultra vires the Legislature which
passed the said Act?

Section 7 of the Delhi Laws Act, 1912, mentioned in the question runs as follows:

“The Provincial Government may, by notification in the official gazette, extend with such
restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any
enactment which is in force in any part of British India at the date of such notification.”

7
In Re Delhi Laws Act, AIR 1951 SC 332.

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 2. Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof and in what particular or particulars or to what extent ultra vires the
Legislature which passed the said Act?

Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows:–

“Extension of Enactments to Ajmer-Merwara.–The Central Government may, by notification

in the official gazette, extend to the Province of Ajmer-Merwara with such restrictions and
modifications as it thinks fit any enactment which is in force in any other Province at the date
of such notification.”

3. Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and
in what particular or particulars or to what extent ultra vires the Parliament?

“Power to extend enactments to certain Part C States.–The Central Government may, by

notification in the Official Gazette, extend to any Part C State (other than Coorg and the
Andaman and Nicobar Islands) or to any part of such State, with such restrictions and
modifications as it thinks fit, any enactment which is in force in a Part A State at the date of
the notification and provision may be made in any enactment so extended for the repeal or
amendment of any corresponding law (other than a Central Act) which is for the time being
applicable to that Part C State.”

The learned judges while delivering their judgment, highlighted instances of delegation in
America, England, Australia, Canada and some other countries, whose persuasive influence
has to be taken into consideration. Some of these instances will be dealt with presently. Being
a reference case, it is primarily concerned with the different opinions rendered by the judges.
The primary reason for this reference can be traced to Jatinder Nath v. Province of Bihar8 (the
case which holds importance with regard to the post-independence period), where it was held
that in India, there could be no delegated legislation beyond conditional legislation. The court
in this case held the proviso to sub-section (3) of section 1 of the Bihar Maintenance of
Public Order Act, 1947, ultra vires the Bihar Provincial Legislature, by reason of it
amounting to a delegation of its legislative power to an extraneous authority, doubts have
arisen regarding the validity of the three legislative provisions.

The rule against delegated legislation in America has developed as a corollary to the doctrine
of separation of power. This is however not an inevitable corollary. It has on several

8
Jatinder Nath v. Province of Bihar, (1949) 2 FCR 595.

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occasions been relaxed.9 They further added that the same was applicable in Australia.
Though its Constitution is based on the separation of power doctrine, it does not stand in the
way of delegation. The British position was highlighted through New South Wales v.
Commonwealth10, “It is well known in all British communities; yet, except in the United
States, nowhere it has been held that law by itself forbids delegation of legislative power.”
The situation in Canada has been highlighted by the justices by means of Hodge v. The
Queen.11 Here it was argued that the power conferred by the Imperial Parliament on the local
legislature should be exercised in full by that body and by that body alone. The maxim
delegates non potest delegare was relied upon to support the objection.

In the Indian context, to explain the situation in the pre-independence period, they have relied
on Dicey’s comments. According to Dicey, “the Indian Legislatures are in short, within their
own sphere, copies of Imperial Parliament, they are within their own sphere sovereign bodies,
but their freedom of action is controlled by their subordination to the Parliament of the
United Kingdom.”

The trend has not shown much variation in the post-independence era, except for the fact that
once India became a free nation, it was no longer under the control of the parliament of U.K.
They further went on to say that “in the first place, it seems quite clear that the Privy Council
never liked to commit themselves to the statement that delegated legislation was
permissible….they were at pains to show that the provisions impugned before them were
instances of delegation of legislative authority, but they were instances of conditional
legislation” which according to them the Legislatures were competent to enact.

Judicial Opinion on the Issues

In this part we will briefly discuss the opinion of the Justices in the following case concerning
the issues as stated in the previous part of this section.

Minority Views:

1. JUSTICE KANIA:

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:
9
Panama Refining Co. v Ryan, 295 U.S. 495.
10
New South Wales v. Commonwealth, (1990) 169 CLR 482.
11
Hodge v. The Queen, [1883] UKPC 59.

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  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.
 Such power of delegation is not negatived by the instrument by which the legislative
body is created or established; and
 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.

With regard to the three questions he stated that:

Firstly, The Province of Delhi was carved out of the Province of Punjab and was put under a
Chief Commissioner and by section 2 of the Delhi Laws Act the laws in force in the Punjab
continued to be operative in the newly created Province of Delhi. The Province of Delhi had
not its legislative body and so far as this Chief Commissioner’s Province is concerned it is
not disputed that the power to legislate was with the Governor- General in Council in his
legislative capacity. Section 7 of the Delhi Laws Act enables the Government (executive) to
extend by notification with such restrictions and modifications as it thinks fit, to the Province
of Delhi or any part thereof, any enactment which is in force in any part of British India, at
the date of such notification, i.e., a law which was in force not necessarily in the Province of
Punjab only, from which the Province of Delhi was carved out, but any Central or provincial
law in force in any Province

In his opinion, therefore, to the extent section 7 of the Delhi Laws Act permits the Central
executive government to apply any law passed by a Provincial legislature to the Province of
Delhi, the same is ultra vires the Central Legislature. To that extent the Central Legislature
has abdicated its functions and therefore the Act to the extent is invalid. He further relies on
the landmark judgment of Queen v. Burrah. He was of the opinion that as far as extension of
the laws passed by the Central Legislature goes, the Act maybe said to be valid, relying on
the above mentioned precedent. It has however, not considered whether the Province of Delhi
requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare
of the people of the Province or for its government. They are passed by other Provincial
legislatures according to their needs and circumstances It may be noticed that the power to
extend, mutatis mutandis, the laws as contained in sections 8 and 9 of Act XXII of 1869
brings in the idea of adaptation by modification, but so far only as it is necessary for the
purpose.

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Question 2 relates to Ajmer-Merwara (Extension of Laws) Act. Till the Government of India
Act, 1915, there was unitary government in India. By the Act of 1915, Provincial legislatures
were given powers of legislation but there was no distribution of legislative powers between
the Centre and the Provinces. That was brought about only by the Government of India Act,
1935. Section 94 of that Act enumerates the Chief Commissioner’s Provinces. They include
the Provinces of Delhi and Ajmer-Merwara. Under sections 99 and 100 there was a
distribution of legislative powers between Provinces and Centre, but the word “Province” did
not include a Chief Commissioner’s Province and therefore the Central Legislature was the
only law-making authority for the Chief Commissioner’s Provinces. The Ajmer-Merwara Act
was passed under the Government of India Act as adapted by the Indian Independence Act.
Although by that Act the control of British Parliament over the Government of India and the
Central Legislature was removed, the powers of the Central Legislature were still as those
found in the Government of India Act, 1935. The Independence Act therefore made no
difference on the question whether the power of delegation was contained in the legislative
power. The result is that to the extent to which section 7 of the Delhi Laws Act is held ultra
vires, section 2 of the Ajmer-Merwara Act, 1947, should also be held ultra vires.

Finally, with regard to the third question, he states, Article 246 deals with the distribution of
legislative powers between the Centre and the States but Part C States are outside its
operation. Therefore on any subject affecting Part C States, Parliament is the sole and
exclusive legislature until it passes an Act creating a legislature or a Council in terms of
Article 240. Proceeding on the footing that a power of legislation does not carry with it the
power of delegation, the question is whether section 2 of the Part C States (Laws) Act is valid
or not. By that section the Parliament has given power to the Central Government by
notification to extend to any part of such State (Part C State), with such restrictions and
modifications as it thinks fit, any enactment which is in force in Part A State at the date of the
notification. The chief observed that the section although framed on the lines of the Delhi
Laws Act and the Ajmer-Merwara Act is restricted in its scope as the executive government is
empowered to extend only an Act which is in force in any of the Part A States. For the same
reasons he considers certain parts of the two sections covered by Questions 1 and 2 ultra
vires, that part of section 2 of the Part C States (Laws) Act, 1950, which empowers the
Central Government to extend laws passed by any Legislature of Part A State, will also be
ultra vires. To the extent the Central Legislature or Parliament has passed Acts which are
applicable to Part A States, there can be no objection to the Central Government extending, if

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necessary, the operation of those Acts to the Province of Delhi, because the Parliament is the
competent legislature for that Province. To the extent however the section permits the Central
Government to extend laws made by any legislature of Part A State to the Province of Delhi,
the section is ultra vires.

2. JUSTICE MAHAJAN

Justice Mahajan concurred with the views put forward by the Chief and along with the Chief
delivered the minority view in this particular case.

While dealing with the the first question which related to section 7 of the Delhi Laws Act,
1912, and concerns its validity in whole or in part, Justice Mahajan noted that the section
gives a carte blanche to the Governor General to extend to the newly formed province any
enactment in force in any part of British India at the date of the notification and not
necessarily any enactment in force in British India at the date of the passing of the Delhi
Laws Act. No schedule was annexed to the Act of the enactments that were in force in any
part in British India at the date of the passing of the Act. As regards the enactments that may
be in force in any part of British India at the date of any notification, there was no knowing
what those laws would be. Laws that were to be made after 1912, their principle and policy
could not be known to the legislature that enacted section 7 of the Delhi Laws Act. He was of
the view that the legislature could neither have exercised its judgment, nor its discretion in
respect of those laws. It also conferred on the Governor-General power of modifying existing
and future enactments passed by different legislatures in the country. The power of
modification implies within it the power of amending those statutes. In the Justice’s opinion
“the section conferred a kind of a vague, wide, vagrant and uncanalised authority on the
Governor- General”. From his analysis, it would thus seem that within the wide charter of
delegated power given to the executive by section 7 of the Delhi Laws Act, it could exercise
essential legislative functions and in effect it became the legislature for Delhi. This section
therefore, in his opinion, ultra vires the Indian Councils Act, 1861, in the following
particulars:

i. In as much as it permits the executive to apply to Delhi laws enacted by legislatures

not competent to make laws for Delhi and which these legislatures may make within
their own legislative field, and
ii. In as much as it clothes the executive with co-extensive legislative authority in the
matter of modification of laws made by legislative bodies in India.

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He was however keen to note that had the Legislature of the adopting country passed this
particular law, then it would be valid.

In answering the third question, he has adopted a similar reasoning. He held that in this case
express power to repeal or amend laws already applicable in Part C States has been conferred
on the Central Government. Power to repeal or amend laws is a power which can only be
exercised by an authority that has the power to enact laws. It is a power co-ordinate and co-
extensive with the power of the legislature itself. In bestowing on the Central Government
and clothing it with the same capacity as is possessed by the legislature itself the Parliament
has acted unconstitutionally. The second question concerns section 2 of the Ajmer-Merwara
(Extension of Laws) Act, 1947, which provides for extension of enactments to Ajmer-
Merwara. The section does not declare any law but gives the Central Government power to
declare what the law shall be. The choice to select any enactment in force in any province at
the date of such notification clearly shows that the legislature declared no principles or
policies as regards the law to be made on any subject. It may be pointed out that under the
Act of 193512 different provinces had the exclusive power of laying down their policies in
respect to subjects within their own legislative field. What policy was to be adopted for Delhi,
whether that adopted in the province of Punjab or of Bombay, was left to the Central
Government. The exercise of this power amounts to making a new law by a body which was
not in the contemplation of the Constitution and was not authorized to enact any laws. He
thus answered this question in the negative, because the policy of those laws could never be
determined by the law making body entrusted with making laws in the present context for
Delhi.

With these opinions, he held all three Acts ultra vires.

The minority view in the present case was expressed by the above two judges. The minority
based its view of the theory of legislative omnipotence of the British Parliament, and its
reflection in the Australian, the Canadian and the Indian Constitutional systems, which
includes power to delegate legislative function, subject to the condition of non-abdication.
They were of the view that the Constitution has never per se warranted delegation powers at
any stage and agreed on the view that legislature can however, conditionally legislate. In
doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or
ascertained according to the decision of another body or the execution authority, the

12
GOVERNMENT OF INDIA ACT, 1935.

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legislation may become applicable to a particular area. This was described as conditional
legislation.

Majority Views:

1. JUSTICE FAZAL ALI

Justice Fazl Ali has successfully delivered the most convincing argument in favour of
delegation. Along with the other judges, he was of the opinion that delegation is in fact
important, and his justifications were based on the following lines.

It is a cardinal principle of our system of government that local affairs shall be managed by
local authorities and general affairs by the central authority. “Such legislation is not regarded
as a transfer of general legislative power, but rather as the grant of the authority to prescribe
local regulations, according to immemorial practice, subject, of course, to the interposition of
the superior in cases of necessity.” 13 He also noted that the Act in question does not enact a
“new law” but merely “transplants” to the territory concerned, laws operative in other parts.
He further suggested that some safeguards should be implemented, such as a one year time
period during which the effectiveness of the delegated function can be judged. He was
however of the opinion that mere absence of the safeguard will not invalidate the said
provision and it is thus intra vires. The power delegated in the first instance, i.e. in the case of
the Delhi Laws Act, 1912 was ministerial in nature such delegation was neither unwarranted
on principle nor without precedent. He relies on the instance of Queen v. Burrah. He adapts
the language used there and a similar reasoning is employed. In the present Act, as originally
enacted, the agency which was to adapt the laws was the Governor General. In 1912, the
Governor-General exercised jurisdiction over the whole of the territories the laws of which
were to be adapted for Delhi. He further stated that, Burrah‘s case has been accepted by this
Court as having been correctly decided, and we may well say that the impugned Acts are
mere larger editions of Act XXII of 1869 which was in question in Burrah‘s case.

Coming to the second Act, namely, the Ajmer-Merwara (Extension of Laws) Act, 1947, we
find that when it was enacted on the 31st December, 1947, the Government of India Act,
1935, as adapted by the India (Provisional Constitution) Order, 1947, issued under the Indian
Independence Act, 1947, was in force. Under that Act, there were three Legislative Lists,
called the Federal, Provincial and Concurrent Legislative Lists. Lists I and II contained a list
of subjects on which the Central Legislature and the Provincial Legislature could respectively
13
Stoutenburgh v. Hennick, (1889) 129 U.S. 141.

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legislate, and List III contained subjects on which both the Central and the Provincial
Legislatures could legislate. Section 100(4) of the Act provided that “the Dominion
Legislature has power to make laws with respect to matters enumerated in the Provincial
Legislative List except for a Province or any part thereof.” Section 46 (3) stated that the word
“Province”, unless the context otherwise required, meant a Governor’s Province. Therefore,
section 100 (4) read with the definition of “Province”, empowered the Dominion Legislature
to make laws with respect to subjects mentioned in all the three Lists for Ajmer-Merwara,
which was not a Governor’s Province. The Central Legislature was thus competent to
legislate for Ajmer-Merwara in regard to any subject, and it had also plenary powers in the
entire legislative field allotted to it. Further, at the time the Act in question was passed, the
Dominion Legislature was simultaneously functioning as the Constituent Assembly and had
the power to frame the Constitution.

Finally, as far as the third Act is concerned, since it is an Act post-Constitution, he has relied
on Article 245 of the Constitution which lays down that “subject to the provisions of this
Constitution, Parliament may make laws from the whole or any part of the territory of India,
and the Legislature of a State may make laws for the whole or any part of the State.” Reliance
was also placed on Under article 246 (4), which states: “Parliament has power to make laws
with respect to any matter for any part of the territory of India not included in [Part A or Part
B] of the First Schedule notwithstanding that such matter is a matter enumerated in the State
List.”

At the time, it was recognized that the Parliament derives power from the Constitution and
has the power to legislate with respect the Part C States and even though the country has
adopted the doctrine of separation of power, this will still not be a bar to the process of
delegation. He thus concluded by stating that “There can be no doubt that the powers which
have been granted to the Government are very extensive and the three Acts go farther than
any Act in England or America, but, in my judgment, notwithstanding the somewhat unusual
features to which reference has been made, the provisions in question cannot be held to be
invalid.”

His conclusions can be summed up as: The legislature,

-Must normally discharge its primary legislative function itself and not through others;

-Can delegate and this power is ancillary to and necessary for the full and effective exercise
of its power of legislation; and

Page | 16
-Cannot abdicate its legislative functions, and does not become a parallel legislature.

2. JUSTICE MUKHERJEE

The learned justice commented that it will be noticed that in all the three items of legislation,
mentioned above, there has been, what may be described, as conferment by the legislatures,
which passed the respective enactments, to an outside authority, of some of the powers which
the legislative bodies themselves could exercise; and the authority in whose favour the
delegation has been made has not only been empowered to extend to particular areas the laws
which are in force in other parts of India but has also been given a right to introduce into such
laws, any restrictions or modifications as it thinks fit.

As regards constitutionality of the delegation legislative powers, he commented that the

Indian Legislature cannot be in the same position as the omnipotent British Parliament and
how far delegation is permissible has to be ascertained in India as a matter of construction
from the express provisions of the Indian Constitution. It cannot be said that an unlimited
right of delegation is inherent in the legislative power itself. This is not warranted by the
provisions of the constitution and the legitimacy of delegation depends entirely upon its being
used as an ancillary measure which the legislature considers to be necessary for the purpose
of exercising its legislative powers effectively and completely. The legislature must retain in
its own hands the essential legislative functions which consist in declaring the legislative
policy and laying down the standard which is to be enacted into a rule of law and what can be
delegated is the task of subordinate legislation which by its very nature is ancillary to the
statute which delegates the power to make it. Provided the legislative policy is enunciated
with sufficient clearness or a standard is laid down, the courts should not interfere with the
discretion that undoubtedly rests with the legislature itself in determining the extent of
delegation necessary in a particular case.

With these observation she said, Section 7 of the Delhi Laws Act, 1912, and S. 2 of the
Ajmer- Merwara (Extension of Laws) Act, 1947, are wholly intra vires and The first portion
of S. 2 of the Part C States (Laws) Act, which empowers the Central Government to extend to
any Part C State or to any part of such State with such modifications and restrictions as it
thinks fit any enactment which is in force in a Part A State, is intra vires. The latter portion of
the said Section, which empowers the Central Government to make provision in any
enactment extended to a Part C State, for repeal or amendment of any law (other than a
Central Act) which is for the time being applicable to that Part C State, is ultra vires.

Page | 17
 3. JUSTICE SASTRI

The learned justice attempted to answer the first two questions together in the following
manner:

Section 7 of the Delhi Laws Act, 1912, fell within the general scope of the affirmative words
of Section 22 of the Indian Councils Act, 1861, which conferred the law-making power on
the Governor General in Council and that the provision did not violate any of the clauses by
which, negatively, that power was restricted. The same line of approach lead the learned
Justice to the conclusion that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947,
was also constitutional and valid. This Act was passed by the Dominion Legislature of India,
and the governing constitutional provision was section 99(1) of the Government of India Act,
1935.

The Indian Independence Act, 1947, authorised the removal of certain restrictions on the
lawmaking powers of the Central Legislature and section 108 of the Constitution Act was
omitted; but the material words in section 99(1) which granted the legislative power remained
the same, namely, “may make laws for the whole or any part of the Dominion.” No doubt, as
between the Dominion and the Provinces there was a distribution of legislative power
according to the Lists in Schedule VII, but such distribution did not affect the power of the
Dominion Legislature to make laws for what are known as Chief Commissioners’ Provinces,
of which Ajmer-Merwara is one. This was made clear by section 100 (4) read with section 46.
Section 2 of the impugned Act was, therefore a “law” which the Dominion Legislature was
competent to make and the restrictive words “subject to the provisions of this Act” had no
application to the case, as no provision was brought to their notice which affected the validity
of the law. There was also some confusion as to the scope and meaning of the words
“restrictions” and “modifications”. He dismissed these contradictions by stating that, however
wide a meaning may be attributed to the expression; it would not affect the constitutionality
of the delegating statute.

Thirdly, section 2 of the Part C States (Laws) Act, 1950, is framed on the same lines as the
other two impugned provisions, save for the addition of a clause empowering repeal or
amendment of any corresponding law (other than a Central Act) which is for the time being in
force in the State. This additional clause, however, need not detain us, for, if there is no
constitutional inhibition against delegation of legislative power under the present
Constitution, delegation can as well extend to the power of repeal as to the power of

Page | 18
modification and the Court cannot hold such delegation to be ultra vires. The Constitutional
validity of the additional clause thus stands or falls with that of the first part of the section
and the only question is: What is the position in regard to delegated legislation under the
present Constitution?

To answer this, the learned justice relies on the positions in America and U.K and states
“there is no difference between the English and the American decisions on this point. In both
countries it is recognized that the correct way of resolving such problems is to look to the
terms of the constitutional instrument, and to find out whether the impugned enactment falls
within the ambit of the lawmaking power conferred on the legislature which passed the
enactment and, if so, whether it transgresses any restrictions and limitations imposed on such
power. If the enactment in question satisfies this double test, then it must be held to be
constitutional.”

He relies thus on the Constitution and just as the other justices have done, brings to light, at
this the context, Articles 245 and 246(4) of the Constitution. He states that the Act passed by
Parliament was in accordance with the prescribed legislative procedure, and hence there is no
reason why it should not be regarded as a law. Further there is nothing in these provisions
which could possibly attract the wrath of Part III of the Constitution. It should thus be
considered valid.

He also dismissed the argument by the council with respect to the Latin maxim expression
unis est exclusio alterious. He was of the opinion that an express provision was not necessary
for the process of delegation. Further, the maxim is not one of universal application, and it is
inconceivable that the framers of the Constitution could have intended to deny to the Indian
Legislatures a power which, as we have seen, has been recognized on all hands as a desirable.

With these observations, he held all three Acts in their entirety as valid an intra vires.

4. JUSTICE BOSE

The learned justice who was in favour of delegated legislation, also concurred with the
opinion above. He has briefly though explicitly stated that he is in full concurrence with the
majority. The Indian Parliament can legislate along the lines of Queen v. Burrah, that is to
say, it can leave to another person or body the introduction or application of laws which are,
or may be, in existence at that time in any part of India which is subject to the legislative
control of Parliament, whether those laws are enacted by Parliament or by a State Legislature

Page | 19
set up by the Constitution. But delegation of this kind cannot proceed beyond that; it cannot
extend to the repealing or altering in essential particulars laws which are already in force in
the area in question. He was also of the opinion that the term “modification” does not
necessarily mean a change in policy, it merely means an alteration within the permissible
limits set by the policy. This keeps the policy intact and at the same time introduces sufficient
flexibility to suit the different needs of the society.

He thus held Section 7 of the Delhi Laws Act, 1912, and S. 2 of the Ajmer-Merwara
(Extension of Laws) Act, 1947, are wholly intra vires. Further, the first portion of S. 2 of the
Part C States (Laws) Act, which empowers the Central Government to extend to any Part C
State or to any part of such State with such modifications and restrictions as it thinks fit any
enactment which is in force in a Part A State, is intra vires. The latter portion of the said
section, which empowers the Central Government to make provision in any enactment
extended to a Part C State, for repeal or amendment of any law (other than a Central Act)
which is for the time being applicable to that Part C State, is ultra vires.

5. JUSTICE DAS

The opinions of the learned justice can be summarized as follows:

 The principle of non-delegation of legislative powers founded either on the doctrine

of separation of powers or the theory of agency has no application to the British
Parliament or the legislature constituted by an Act of the British Parliament;
 In the ever present complexity of conditions with which governments have to deal, the
power of delegation is necessary for, and ancillary to, the exercise of legislative power
and is a component part of it;
 The operation of the act performed under delegated power is directly and immediately
under and by virtue of the law by which the power was delegated and its efficacy is
referable to that antecedent law;
 If what the legislature does is legislation within the general scope of the affirmative
words which give the power and if it violates no express Condition or restriction by
which that power is limited, then it is not for the court to inquire further or enlarge
constructively those conditions or restrictions;
 While the legislature is acting within its prescribed sphere there is, except as herein
after stated, no degree of, or limit to, its power of delegation of its legislative power, it
being for the legislature to determine how far it should seek the aid of subordinate

Page | 20
 agencies and how long it shall continue them, and it is not for the court to prescribe
any limit to the legislature’s power of delegation;
 The power of delegation is however subject to the qualification that the legislature
may not abdicate or efface itself, that is, it may not, without preserving its own
capacity intact, create and endow with its own capacity a new legislative power not
created or authorised by the Act to which it owes its existence;
 The impugned laws may also be supported as instances of conditional legislation
within the meaning of the decision in Queen v. Burrah.

With these opinions, he held all sections in question in the present case valid in their entirety.
The majority in this case has held all the sections to be perfectly valid. The majority based its
opinion on the maxim expressio unis est exclusion alterious and ruled that an express
provision permitting delegation, contained in article 357 would mean uncontrolled legislation
was not permitted under the Constitution. Essential functions could not be delegated under
any condition.

Summary of Judgment

The opinions delivered by the judges in the present case went on to shape the way the
concept of delegation was viewed in India. The Supreme Court took the following view and
the 7 opinions were based on the same:

 “Separation of powers” is not a part of Indian Constitution.

 Indian parliament was never considered as an agent of anybody. Therefore doctrine of
delegates non potest delegare is not applicable.
 Parliament cannot completely abdicate itself by creating a parallel authority.
 Only ancillary functions can be delegated.
 There is a limitation on delegation of power. Legislature cannot delegate its essential
functions. Essential functions involve laying down the policy of the law and enacting
that policy into binding rules of conduct.

Analysis of the Judgment

From a study of the above judicial opinions it is humbly submitted that there is not much
material difference between the majority and minority opinion in the present case. The
majority is of the opinion that only non-essential functions, i.e. the power of policy making
accompanied with annexation of sanction can be delegated even if there is an explicit
mention allowing the delegation, while the minority stands firm on its decision that most
functions can be delegated, subject to the condition of non-abdication. It has to be noticed

Page | 21
here that, the power of abdication is in fact an essential legislative function. The majority has
also expressed its view that the Legislature cannot create a parallel authority with the same
powers and functions that it now enjoys.

The case has been quoted as the “Bible of delegated legislation”. What it means that, it is
considered as a comprehensive document on delegated legislation which has clearly laid
down the importance and the necessity of delegation and at the same time indicates the
safeguards necessary to ensure there is no excessive delegation.

The judgment achieved two ends:

1. it legitimized delegation of legislative power by the Legislature to administrative

organs; and
2. it imposed an outer limit on delegation by the Legislature. No Indian Legislature can
delegate unlimited legislative power to the Administration. If delegation is too broad,
the courts can declare the same as excessive and hence, invalid. This has come to be
known as the ‘Doctrine of Excessive Delegation of Legislative Power’.
In this case, the difficulty arose due to the fact that the Parliament had to directly legislate in
certain areas. The object of the Act was to promote good administration; hence, the object
was achieved by giving the administrative power to extend any law made by a State
Legislature. However, giving the executive, the power to modify the laws before applying
them and repealing existing laws, would have given them unbridled powers, and resulted in
delegating the essential legislative function, and hence, was correctly declared invalid.

Hence, the Supreme Court realized prudently, far back in 1951, that delegated legislation is a
necessity. And, with the evolution of the “doctrine of excessive delegation” whereby the
Courts can keep a check on the delegated legislation, the Courts have ensured that delegated
legislation promotes good administration, and does not result in excessive delegation. The
present case is the first case in which the Court has curtailed the power of delegation by
laying down two conditions while declaring the Acts to be valid.

Page | 22
 RESTRAINTS ON DELEGATED LEGISLATION
This section of the project would elaborate on the various measures that are undertaken to
ensure that delegation of law making power are within the confined corners of the
Constitution. There are three main control mechanism, namely, (i) Legislative Control; (ii)
Procedural Control; and (iii) Judicial Control.

PARLIAMENTARY CONTROL
Every delegate is subject to the authority and control of the principal and the exercise of
delegated power can always be directed, corrected or cancelled by the principal. Hence
parliamentary control over delegated legislation should be a living continuity as a
constitutional remedy. The fact is that due to the broad delegation of legislative powers and
the generalized standard of control also being broad, judicial control has shrunk, raising the
desirability and the necessity of parliamentary control.

Legislative control over delegated legislation is exercised at two levels. The first control
exercised at the time of passing the enabling act while the second control is exercised when
the legislation scrutinizes the delegated legislation.

The issue of delegated legislation has been one of the most debated issues in the domain of
legal theory because of its various implications. Scholars have consistently presented

Page | 23
differing and even contradicting views about delegation of power to legislate and have thus
taken different stands on the issue. While Delegated Legislation has been a widespread
practice in modern times and is almost an accepted norm, there have been contrary views. For
instance Cooley has expressed a staunchly critical view of the power to delegate. He has
stated that “One of the settled maxims in constitutional law is that the power conferred upon
the legislature to make laws cannot be delegated by that department to any other body or
authority. Where the sovereign power of the State has located the authority, there it must
remain; and by the constitutional agency alone the laws must be made until the constitution
itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative
has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon
which the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to confide this
sovereign trust.” Further he has also observed that “No legislative body can delegate to
another department of the government, or to any other authority, the power, either generally
or specially, to enact laws. The reason is found in the very existence of its own powers. This
high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to
those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead
of executing it.” While such positions do raise the questions about the propriety of delegating
the power to legislate by higher legislative bodies to the lower ones, the fact remains that this
has been a general practice followed in all modern democratic countries. Hence it is
important to understand what is firstly meant by delegated legislation and then analyses its
various aspects.

Legislation is an inherent and inalienable right of Parliament and it has to be seen that this
power is not usurped nor transgressed under the guise of what is called subordinate
legislation. It can control the following:

1. Normal Delegation: - a) Positive: - where the limits of delegation are clearly defined in
the enabling Act; b) Negative: - does not include power to do certain thing (these not
allowed).

2. Exceptional Delegation: - a) Power to legislate on matters of principle (policy); b) Power

is amend Act of parliament (In re Delhi laws Acts).

Page | 24
W.B. State Electricity Board v. Desh Bandhu Gosh14 it was held that Regulation 34 of the
West Bengal State Electricity Regulation which had authorized the Board to terminate the
Service of any permanent employer on three months’ notice or pay in lieu thereof. This hire
& fire rules of regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport
Corporation Limited v. Brojo Nath Ganguly 15 wherein rule 9 of the service rules of the
CIWTC conferred power to terminate on similar lines as in the case of Desh Bandhu Ghosh
the court went on to say that No apt description of Rule 9(i) can be given than to call it “the
Henry VIII clause”. It confers absolute and arbitrary power upon the Corporation and
therefore invalid.

Parliamentary control over delegated legislation can be effectively exercised by two methods
firstly, direct and secondly indirect control.

Direct General Control:

There are several methods for exercising direct but general control over delegated legislation
such as through debating the extent, necessity, and type of delegation and authority to which
the power is delegated; through questions or notices on the aspects where there is non-clarity;
through moving resolutions and notices in the House; through vote on grant; through private
member bill.

Direct Special Control:

This control mechanism is exercised through the technique of “Laying on the Table” of the
House rules and regulations framed by the administrative authority. It is a very common
method, followed in almost all commonwealth countries is considered to bring the legislature
into a close and constant contact with the administration. 16 This method helps in achieving the
two fold purposes. Firstly, it helps in keeping the legislature well informed about the rules
that the executive authorities have enacted in respect to the power of legislation conferred
upon the latter and secondly, it provides a scope and opportunity to the former to question or
challenge the rules enacted to proposed to be enacted by them.

14
W.B. State Electricity Board v. Desh Bandhu Gosh, (1958) 3 SCC 116.
15
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly, AIR 1986 SC 1571.
16
M. K. Papiah & Sons v Excise Commr., [1975] 1 SCC 492; State of M.P. v Mahalaxmi Fabric Mills Ltd., AIR
1995 SC 2213.

Page | 25
Laying on table can be of several types depending upon the extent of legislative control
necessary for the case. Broadly, they can be divided into seven categories. 17 Firstly, Laying
without further supervision for control wherein the in accordance with the parent Act the
rules are laid before the Parliament. On such date of laying, the rules become operative. In
some exceptional cases, they can even become operative before they are so laid. This method
only helps in informing the Parliament about the nature and scope of rules made by the
executive authorities.

Secondly, Laying with deferred operation whereby the Parliament acquires more control due
to linking of the laying of bill with the postponement of operation of the rules.

Thirdly, Laying with immediate effect but subject to annulment wherein the rules come into
force when laid before the Parliament but cease to remain in operation if disapproved by it
within a specified period. Being the most common form of Parliamentary control, it is also
known as a “negative resolution” procedure.

Fourthly, Laying in draft subject to resolution that no further proceedings be taken, whereby
although the draft of statutory rules are laid before the Parliament but the Parent Act
mandates that the rules should not be made effective until a particular period has expired.

Fifthly, Laying in draft and requiring affirmative resolution, also known as belonging to the
realm of positive resolution, it provides for a stringent parliamentary supervision over
delegated legislation. In order to bring the rules into effect i.e. operative an affirmative
resolution approving the same is to be passed by the Parliament. Before providing with their
assent, an opportunity to discuss is given to the members.

Sixthly, Laying with operation deferred until approval given by affirmative resolution,
whereby rules are effectively made but do not come into operation until and unless
specifically approved by the Parliament.

Seventhly, Laying with immediate effect but requiring affirmative resolution as a condition
for continuance. An effective tool of laying in cases where prompt operation of delegated
legislation is essential but parliamentary supervision is also necessary. The confirmatory
resolution keeps the delegated legislation alive, which otherwise would die.

17
Delegated Legislation in India, ILI [1964] 166-169.

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As far as the Indian scenario is concerned, there is no statutory provision requiring laying of
all delegated legislation.18 However, as per the Committee on delegated legislation, the
statutes contain four methods of laying i.e. firstly requirement of mere publication of rules in
the official gazette, secondly, requirement of such publication and laying on Table, thirdly,
modification done by the Parliament (if permissible under the statutes) and lastly,
requirement of laying of rules for a specified period before they are published in the Official
Gazette.

Control: Mandatory or Directory?

Whether the requirement or provision of laying is directory or mandatory is dependent on the

scheme of the Act, language used in it, consequences enumerated in the relevant law and
certain other considerations. The question was considered and discussed in detail by the Apex
Court in the case of Atlas Cycle Industries Ltd. v State of Haryana19. It was observed and held
that the use of word ‘shall’ in the statute is not conclusive or decisive of the matter. An
essential determining factor that the court has to ascertain is the intent of the legislature. 20 In
addition to this the considerations that are considered as relevant, according to the court are
that the absence of a provision for contingency of a particular provision not being complied
with and serious general inconvenience and prejudice likely to result to general public if the
act is declared invalid for non-compliance with the provision.

Effect of Laying:

The parent Act has a substantial impact of the effect of laying. Where according to the parent
act, laying of rules before the Parliament is the only condition, on fulfilment of this condition,
such rules shall come into effect. No further action is required post such laying. On the other
hand, if the parent act provides for annulment of rules by the Parliament the rules come into
force immediately but cease to be operative if disproved by the Parliament. If the parent Act
demands for an affirmative action by the Parliament for the draft rules placed before it, in
such circumstances, a positive action is a condition precedent. The rules would come into
force only after they are approved by the Houses.

Laying and Judicial Review:

18
J.C.K. THAKKER, ‘ADMINISTRATIVE LAW’ (2nd edn, Eastern Book Company, 2012).
19
Atlas Cycle Industries Ltd. v State of Haryana, AIR 1979 SC 1140.
20
I.T.C. Bhadrachalam Paperboards v Mandal Revenue Officer, [1996] 6 SCC 634.

Page | 27
The procedure of laying is concerned with the aspects of applicability and enforceability of the
rules. The question of validity of granting the rules an equal status as that of the Act is completely
different. A court of law is not precluded from deciding the vires of the Act. In the case of Dai-
Ichi Karnataka Ltd. v Union of India 21, the Apex Court had held that the mere laying of the
notification before the Parliament creates no substantial difference with regard to the jurisdiction
of the court to pronounce its validity.

Effect of Failure to Lay:

In cases where laying is a condition precedent to the enforcement of the rules, in cases if such
condition is not fulfilled, the outcomes as to the effect is a grey area of law i.e. not free from
doubt. Different case laws portray different positions. In the case of Express Newspaper (P)
Ltd. v Union of India22, the Supreme Court in its obiter dicta had observed that the condition
regarding laying is mandatory. On the other hand, in the case of Re: Kerala Education Bill23,
it was observed that once the rules are laid before the Houses of Parliament they may be
amended or altered and it is then that they become effective.

In the case of Jan Mohammad v State of Gujarat24 it was observed that despite the fact that
rules were not laid before the legislature, they were valid from the date when they were made.
Since the Act did not provide for their being rendered invalid due to failure of placing them
before the legislature, hence were valid.

In the case of M.K. Papiah v Excise Commissioner25, while holding that the rules under the
Parent Act came into force as soon as they were formed, it was observed that:

“The dilution of Parliamentary watch dogging of delegated legislation may be deplored but
in the compulsions and complexities of modern life cannot be helped.”

Indirect Control through Scrutiny Committees:

It has been observed that laying on table as mode of Parliamentary control over delegated
legislation has been held not to be mandatory. Moreover, apart of laying, it is also required
that the rules are adequately studied and scrutinised. Hence, in order to fulfil these objectives
and views of strengthening the Parliamentary control over delegated legislation, Scrutiny
Committees are established. As far as the Indian scenario is concerned, so far two scrutiny

21
Dai-Ichi Karnataka Ltd. v Union of India, AIR 2000 SC 1741.
22
Express Newspaper (P) Ltd. v Union of India, AIR 1958 SC 548.
23
Re: Kerala Education Bill, AIR 1958 SC 956.
24
Jan Mohammad v State of Gujarat, AIR 1966 SC 385.
25
M.K. Papiah v Excise Commissioner, AIR 1975 SC 1007.

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committees have been established firstly, the Lok Sabha Committee on Subordinate
Legislation and secondly, the Rajya Sabha Committee on Subordinate Legislation.

As far as the functions of these committees are concerned, their role is concerned with
scrutinising and reporting to the respective Houses that whether the power to make rules,
regulations, sub-rules, bye-laws etc. as conferred by the Constitution or delegated by the
Parliament are being judiciously exercised within such delegation.

“They act as watch dogs which bark and arouse their master from slumber when they find
that an invasion on the premises has taken place.”26

These committees have made several suggestions and recommendations such as the power of
judicial review should not be taken away or curtailed by the rules, the rules must be in
simple, unambiguous and clear language, the rules must be made without inordinate delay,
defects as pointed out to the administration must be cured as soon as possible, the rules must
be sufficiently published, rules should not be given a retrospective operation, interpretation of
rules should not rest with the administration, rules must not be discriminatory etc.

As far as the efficacy of the scrutiny committees is concerned, in the word of Sir Cecil Carr
“it is a vigorous and independent body”. The working of the committee can be broadly
classified as being satisfactory and a fairly effective body with regard to the matters of
properly examining and effectively improving upon Delegated Legislation in India. 27 One of
the most significant part in the result of Committee’s’ vigilance does not lie in the fact that it
puts regulations to debate in the Parliament but that it implicates the governmental
departments with a sense of lively consciousness that there are certain critical eyes upon
them. It is immaterial that out of a certain number of instruments being scrutinised, relatively
very few are reported in the Houses because this method serves as a part of measure of
committees’ success in establishing a standard.

EFFECTIVENESS OF PARLIAMENTARY CONTROL

One of the landmark shift in the legislative process across the globe is the shift of the
constitutional centre of gravity away from the Parliament towards the Executive. The
principal reason behind rise in delegated legislation has been the sheer amount of volume of
legislation and other governmental activity is so large that the existing parliamentary

26
Delegated Legislation in India, ILI [1964] 201.
27
WADE AND FORSYTH, ADMINISTARTIVE LAW (11 ed., Oxford Publication, 2009) 766.

Page | 29
machinery is unable to handle it.28 However, one of the reasons for the failure of the
Parliament behind effectively supervising delegation is also the same. The growth of
delegated legislation has led to reduction in the role of the Parliament in making detailed laws
thereby increased the powers of bureaucracy. If the modes of laying under direct special
control is exercised, there is hardly any opportunity for control. Laying is just equal to
advertising of regulations to the members.29

Due to quantum growth in the both volume and complexity of its functions, lack of time and
expertise has been observed on the part of Parliament to control the administration. In
countries like India, the size of Parliament poses yet another problem. Being very large in
size, the fulfilment of primary functions becomes so unmanageable thereby rendering a lot of
activities ineffective. In certain situations, the executive enjoys immense support in the
Parliament. This leads to reduction in the possibility of effective criticism.

Parliamentary control over delegated legislation is also termed as sporadic, general and
mostly political in nature.30 In countries where there is no strong and steady opposition, there
is no automatic machinery for effective scrutiny on behalf of the Parliament as a whole as a
result, lack of effective parliamentary control is observed.

In particular, legislative control over delegated legislation in India is not as strong and
effective as that of United Kingdom. The latter has an effective procedure for laying of rules
by subjecting them to the control of Parliament through the Select Committee on Statutory
instruments. However, in the Indian scenario, lack of statutory provisions regarding ‘laying’
of delegated legislation complicates the process.

We submit that controls are rather limited. One of the factors behind the same that delegation
of legislative powers is carried out through enabling provisions that set parameters under the
Parent Act. Prima facie, the subordinate authorities are granted special powers and full
authority to act. This renders the Parliament with very limited powers. In cases of affirmative
resolutions, where Parliamentary vote is required to approve them, certain Parliamentary
control exists. However, here also the parent act plays a determining role as it stipulates the
occasions where vote is required. As far as practical terms are concerned, there are very few
occasions where statutory provisions mandate for the same. There are certain matters of
28
WADE AND FORSYTH, ADMINISTARTIVE LAW (11 ed., Oxford Publication, 2009) 765.
29
Id, 766.
30
Kumar Bharat, Effectiveness of Delegated Legislation over Delegated Legislation (05 August 2015)
<http://www.legalservicesindia.com/article/article/effectiveness-of-parliamentary-control-over-delegated-
legislation-1879-1.html> last accessed 02 March 2018.

Page | 30
prime importance or politically sensitive which may attract public attention and become
subject of questions. However, this may not be the same for all matters. They may not be
politically sensitive but would still require attention which they do not attract.

PROCEDURAL CONTROL
Executive legislating under delegated legislation is ordinarily free from rigid procedural
requirements unless the legislature makes it mandatory for the executive to abide by a certain
procedure. This is because rigid procedural requirements may turn out to too time consuming
and cumbersome and they may defeat the very purpose of delegated legislation. However,
communication in one form or other to the general public still remains indispensable for the
law to be legally valid and binding. Hence procedural control means certain procedures
which are laid down in the parent Act which have to be followed by the authorities while
making the rules.

Delegated legislation may be challenged on the ground that it has been in accordance with the
procedure prescribed by the Enabling Act. However, rules become invalid on the ground of
non-compliance with prescribed procedure only if such procedure is mandatory.

Non-compliance with the directory provisions does not render them invalid. It becomes a
case of procedural alternatives. One has to see whether the procedure is mandatory or
directory. Procedural control mechanism operates in three components:

(i) Drafting

(ii) Pre-publication and consultation with an expert body or approval of an authority.

(iii) Publication of delegated legislation.

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This procedural control mechanism may be either mandatory or directory. For the purpose of
mandatory or directory control mechanisms few important parameters should be taken into
account viz (a) Scheme of Act; (b) Intention of legislature i.e. whether treated mandatory or
directory; (c) language in which the provision is drafted; and (d) serious inconvenience being
caused to the public at large.31

1. Drafting

The drafting of delegated legislation by an expert draftsman who is, at the same time, in a
position to advise whether the proposed rules and regulations are intra vires is obviously a
valuable safeguard.32 It is no denying the fact that, in the absence of this safeguard, in India
poorly drafted rules, in many situations, create great hardship for the people by increasing
avoidable litigation. Therefore, the Committee on Subordinate Legislation in India rightly
recommended that the language of rules should be simple and clear and not complicated and
ambiguous.

In Daiichi Sankyo Co. Ltd. v. Jayaram Chigurupati 33, the Supreme Court emphasised that
“object and reason clause” must also be introduced in delegate legislation, as it would help in
proper interpretation of administrative rule making. Throughout Australia the bulk of
delegated legislation is either drafted or checked by parliamentary draftsmen. By a long-
standing convention, all delegated legislation to be made or approved by the Governor of
New South Wales is submitted for the opinion of the Attorney General as to its validity. 34

2. Consultation and Pre-publication

Pre-Publication:

In India there is no separate law governing the procedure of administrative rule-making, and
the parent Act may or may not provide for procedural requirement. However, in some cases
the parent Acts have provided for pre-publication or antenatal publicity. For example, Section
15 of the Central Tea Board Act, 1949; Section 30(3) of the Chartered Accountants Act, 1949;
and Section 43 of the Co-operative Societies Act, 1912 provided that the rules must first be
published in draft form to give an opportunity to the people to have their say in the rule-
making.35

31
Raza Buland Sagar Co. v. Rampur Municipal Council, AIR 1965 SC 895.
32
I.P. MASSEY, ADMISITRATIVE LAW, (9th ed. 2017) 120 [hereinafter “IP MASSEY ON ADMIN LAW”].
33
Daiichi Sankyo Co. Ltd. v. Jayaram Chigurupati, (2010) 7 SCC 449.
34
BENJAFIELD AND WHITMORE, PRINCIPLES OF AUSTRALIAN ADMINISTRATIVE LAW (1976) 106.
35
IP MASSEY ON ADMIN LAW 121.

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The “modus-operandi” is regarded as a valuable safeguard against the misuse of legislative
power by the executive authorities. The effect of the term previous publication according to
S.23 of General Clause Act, 189736 is that:

i. The rules should be published in draft form in Gazette.

ii. Objections and suggestions be invited by a specific date mentioned there in, and
iii. Those objection and suggestions be considered by rule-making authority.

It may, however, be noted that the procedure prescribed in the General Clauses Act, 1897
applies only to rules, regulations and bye-laws, and the administrative rule making appearing
under any other name is not governed by it.

The US experience shows that antenatal publicity is most beneficial in practice because those
subject to administrative regulations tend to be members of trade or business organisations
which perform the routine task of scanning the Federal Register and alert their members
about the proposed rule making. Keeping in view the utility of the antenatal publicity, Section
4 of the Federal Administrative Procedure Act, 1946 provide for the publication of proposed
rules in the Federal Register.

In Britain, unlike in the US, the emphasis is on informal procedural requirements. The
original rules of antenatal publicity and prior consultation laid down in the Rules Publication
Act, 1893 have been repealed by the Statutory Instruments Act, 1946 which now provides for
publication of rules. In England, the law contains no general requirement for antecedent
publicity or any right to hearing. However, in individual cases, Parliament may provide for
antenatal publicity and prior consultation.

Consultation:

In India, there is no general law which provides for prior consultation with affected persons
before rules and regulations are framed by the administrative authorities. Therefore, the
provisions of prior consultation are sometimes provided in the enabling Act itself. Such a
provision if contained in the enabling Act is considered as mandatory and its violation is
visited with the invalidity of the rules.37 However, if the prior consultation has not been made
mandatory by the Parent Act, failure to consult will not affect the validity of the rules.

Section 16(5) of the Electricity (Supply) Act, 1948 makes provisions for consultation with the
State Electricity Consultative Council before raising tariffs. The Supreme Court in Hindustan

36
GENERAL CLAUSE ACT, 1897, § 23.
37
Banwarilal Agawalla v. State of Bihar, AIR 1961 SC 849.

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Zinc Ltd. v. A.P. SEB38 held that the failure to consult does not render the exercise of power
invalid because consultation with the council has not been made mandatory, in the sense that
no consequence is provided in the absence of such consultation.39

The provisions for prior consultation may take various forms:

a. Official consultation with a named body: The central govt. is required to make rules
u/s 52 of the Banking Companies Act, after consulting the Reserve Bank of India.
b. Consolation with statutory bodies in charge of a particular subject: Under the Tea
Board Act, 1949, the Tea Board has been constituted as a statutory body in charge of
the whole subject of tea cultivation, development, marketing, etc. The Act makes it
obligatory to consult with the Board before the Government can frame rules under the
Act.
c. Consultation with Administrative boards: The Mines Act, 1901 sets up
Administrative Boards to advise the Government and makes obligatory prior
consultation with the Board before the Central Government can make rules under the
Act.
d. Consultation with interested persons: Municipalities, before tax imposition have to
publish draft rules in a Hindi daily and consult the inhabitants of the
area. Amendments to the Food Adulteration Rules and Standards for food items are
similar for drugs and cosmetics as well as rates of minimum wages call for
representations and suggestions from the general public by publishing the draft rules
in the Official Gazette. Under the Industries Development and Regulations Act, 1951
representations from the industry and public are invited.
e. Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers
owner of a time to frame or to draft rules themselves for safety etc. n mines and
submit them to inspector of mines. Such rule becomes operative on being approved
by the government.

In Ibrahim vs. Regional Transport Authority40 (Air 1953 SC 79), consultation with the
Municipality was required to be made the Transport Authority before certain routes for buses
were fixed. The S.C. held it to be merely directory.

3. Publication (post natal publicity)

38
Hindustan Zinc Ltd. v. A.P. SEB, (1991) 3 SCC 299.
39
IP MASSEY ON ADMIN LAW 123.
40
Ibrahim vs. Regional Transport Authority, AIR 1953 SC 79.

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It is a fundamental principal of law “ignorantia jris non excusat” (ignorance of law is no
excuse) but there is also another equally established principle of law that the public must
have the access to the law and they should be given an opportunity to know the law. All laws
ought either to be known or at least laid open offend against them under pretence of
ignorance. It is essential that adequate means are adopted to publicize the rules so that people
are not caught on the wrong foot, in ignorance of the rules applicable to them in a given
situation.” Thus, postnatal publicity is a necessary element in the rule-making process
because the dictum that ignorance of law is no excuse is based on the justification that laws
are accessible to the public at large.

In India, there is no general law prescribing the mode of publication of rules; therefore, the
practice of publication differs from statute to statute. In some cases the statute lays down that
the rules must be published in the Official Gazette, but in other cases the administrative
authority is left free to choose its own mode of publication. In such cases, publication is
necessary in any ‘recognisable’ or ‘customary’ manner. Where the parent statute prescribes a
mode of publication, that mode must be followed. Where the parent statute is silent, rules
framed by the administrative authority may prescribe the manner of publication, and such
mode of publication may be sufficient if reasonable. If rules do not prescribe the mode of
publication or if the rules prescribe an unreasonable mode of publication, then the rules shall
take effect only when published through the customary recognised official channel, namely,
the Official Gazette or some other reasonable mode of publication.41

There may be rules and regulations which are concerned with a few individuals or are
confined to a small local area. In such cases publication by other means may be sufficient.
Thus, if a statutory provision requires publication of any notice for the benefit of those who
are likely to be affected thereby but the language of notice is not prescribed, it is reasonable
to expect that the language of the notice would be the local language and the mode of
publication will be a local newspaper.42

Thus, in Harla v. State of Rajasthan43 the council by resolution enacted the Jaipur opium Act
which made rule that if a person carried opinion beyond a certain limit then it was an offence
committed and penalty had to be imposed on the accused & act was never published. One
Harla was prosecuted for the contravention of this law because he was in possession of opium

41
IP MASSEY ON ADMIN LAW 125.
42
State of Orissa v. Sridhar Kumar, AIR 1985 SC 1411.
43
Harla v. State of Rajasthan, AIR 1951 SC 467.

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in more quantity than permitted. He contended that it was a case of procedural
ultravires. Holding that the law was not enforceable the Supreme Court observed.
“promulgation or publication of some sort is essential otherwise it would be against
principles of natural justice to punish the subject under a law of which they had no
knowledge and of which they could not even with the exercise f reasonable diligence be said
to have acquired any knowledge.”

In Narendra Kumar v. U.O.I.44, Section 3 of Essential commodities Act, 1955 required all the
rules to be made under the Act to be notified in official gazette. The principles applied by
licensing authority for issuing permits for the acquisition of non-ferrous metals were not
notified. The SC held the rules ineffective because the mode of publication i.e. in Official
Gazette was held to be mandatory.

Necessity of publication

Whether the requirement as to be mode of publication of rules is mandatory or directory?

Will the rules be valid if to published in official gazette but circulated in any other mode?

Form the point of view of the individual it is unfair to publish the rule is obscure publication.
First publication in required mode creates certainty in the mind of the individual that rules
have been duly made. Secondly it enables him to have say access ability to the rules.

In Raza Buland Sugar Co. v. Rampur Municipality 45 for the S.C. Wanchoo, J. Observed, that
‘The question whether a particular provision of statute which on the face of it appears
mandatory or is merely directory cannot be laying down any general rule and depends upon
the facts of each case and for that purpose the object of the statute in making the provision is
the determining factor. The language of the provision has to be taken into account in arriving
at the conclusion whether particular provision is mandatory or directory.” Further, the
medium of publication has been held to be a mandatory requirement.

44
Narendra Kumar v. U.O.I., AIR 1960 SC 430.
45
Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 896.

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 JUDICIAL CONTROL: DOCTRINE OF ULTRA VIRES
Judicial review of legislation has always been an essential feature of the Indian Constitutional
law. At one time, it was contended before the Calcutta High Court that the limits on the
powers of the Indian Legislature are political, and not legal, and that the validity of its
legislation is not a justiciable issue. The Court rejected the plea saying:

“The theory of every government with a written constitution forming the fundamental and
paramount law of the nation must be that an Act of the legislature repugnant to the
constitution is void. If void, it cannot bind the Courts, and oblige them to give it effect; for
this would be to overthrow in fact what was established in theory, and make that operative in
law which not law.”

The Privy Council approved the interpretation of the Calcutta High Court of the functions of
the Court, and the question of validity of an Act has ever since been treated as an ordinary
matter of construction of the Constitution Act.46

The Indian Constitution has established a Welfare State 47 which mandates that the State shall
legislate on innumerable activities touching human lives in order to promote the maximum
happiness of the maximum number of people.48 Consequently the State has to undertake
legislation on a variety of subjects. In view of this increasing legislative activity, the
legislatures will not find adequate time to legislate on every minute detail and limit
themselves to policy matters and leaving a large volume of area to executives to frame rules
to carry out the purposes of legislation. Thus, the need for delegation became indispensable
and it was sought to be justified on grounds of ‘speed’, flexibility and adoptability’. The
application of law to changing circumstances was made feasible through the instruments of
‘rules’ framed by the executive. It is not a surprise to find that during the years (1973-77)
46
State of Madras v. V.G. Row, AIR 1952 SC 197.
47
Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 306.
48
Bentham Theory of Utility.

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spanning a period of 4 years Parliament enacted 300 statutes but the rules framed by the
executive exceeded 25000. This has been observed by the apex court in the Arvind Singh’s
case.

Legislatures having delegated their powers, have to bear the responsibility to ensure that the
delegatee shall not over-step the legitimate domain and commit a violation by exceeding or
abusing the powers delegated. Thus, the legislatures have to control the delegated legislation
and if not, executives may exercise the delegated power to become a potential dictator or
even becoming a parallel legislature. This legislative control over delegated legislation has
become a ‘living continuity as a constitutional necessity’. The rule of majority in democratic
systems has virtually made legislative controls ineffective. A similar statement is found in
Wade & Forsyth. A more serious observation has been made by Mr. Lloyd George to the
effect that ‘legislatures have no control over the executive”. All these observations are
pointers to the view that had the Parliamentary control over delegated legislature been
effective, the need for judicial control would not have arisen or probably reduced to the
minimum. This has not been so, hence, judicial control has become an inevitable necessity to
prevent executives acting as super-legislatures or potential dictators.49

Pre-constitutional control to post-constitutional judicial control found a big shift from the
scrutiny of delegated legislation confined to the area of sub-delegation from British
Parliament to Indian legislature and laying down a fundamental principle of delegation in the
post-constitutional era50 which can be stated as follows:-

“Legislatures cannot delegate their essential legislative powers. Essential legislative powers
relate to the determination of the policy of the legislature and of rendering that policy into a
binding rule of conduct”.

In other words, delegation of legislative power can be confined to ‘non-essentials’ or

subsidiary matters. Delegation of legislative powers of essential nature would be invalid. This
has come as a first principle laid down in the area of judicial control and subsequently
expanded to a number of rules laid down by the judiciary. These principles can be stated as
follows:-

49
C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW (5th ed., 2012) 172.
50
In Re Delhi Laws Act, AIR 1951 SC 332.

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 I. If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which
is constitutional. In other words, an unconstitutional legislation cannot be legalized
by a valid Parent Act;
II. Rules farmed violating Parent Act are illegal;51
III. Rules framed violating any other Statute or inconsistent with any other law are also
illegal and void;52
IV. Delegated legislation must be reasonable or do not suffer from unreasonableness.
V. Delegated legislation shall not be arbitrary or suffer from arbitrariness. This is
necessary to protect the rule of law;
VI. Delegated legislation made with mala fides or improper motives are held illegal;53
VII. Forbidding sub-delegation and the powers being delegated54 or delegatee exceeding
the powers55 are equally held void;
VIII. ‘Finality clauses’ in Statutes or rules made there under, exclusive evidence, clauses
or ‘as if enacted clauses’56 were also reviewed on the basis of their compliance with
the principles of natural justice and also in the light of Art 226 and Art 32 of the
constitution vesting powers in the High Courts and Supreme Court respectively.
Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;57
IX. ‘Retrospective effect’ clauses giving effect to the law 58 or rules with retrospective
effect.59 Such clauses not only reverses the reasonable anticipation of the people
and may also deprive people of their accrued rights;60
X. Delegated legislation exercised being against public standards or public morality. 61
(In this case marks sheets of the daughter of CM were altered);
XI. Doctrines like ‘Proportionality’62, legitimate expectations,63 and public
accountability64, have become grounds of judicial review of the law and rules
framed; and
XII. Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not
following the procedures which are mandatory in framing the rules.

51
Municipal Corporation of Greater Bombay v. Nagpal Printing Mills, AIR 1988 SC 1009.
52
Hindustan Times v. State of U.P., AIR 2003 SC 250.
53
D.C.Wadhwa Vs. State of Bihar, AIR 1991 SC 526.
54
Ajaile Singh Vs. Gurubachan Singh, AIR 1965 SC 1619.
55
Radhakrishnan Laxminarayan Vs. State, AIR 1952 Nag 387.
56
Keshavananda Bharati v. State of Kerala, AIR 1961 Kerala 23.
57
Chief Inspector of Mines v. Karam Chand Thaper, AIR 1961 SC 838.
58
CONSTITUTION OF INDIA, 1950, art. 20(1).
59
B.S. Yadav’s Case, (1981) SCC (L&S) 343.
60
A.V. Nachane’s Case, AIR 1982 SC 1126.
61
Shivaji Rao Nilangekar v. Mahesh Madhav Gosavi, AIR 1987 SC 294.
62
Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161.
63
State of M.P. v. Hazarilal, (2008) 3 SCC 273.
64
State of Bihar v. Subesh Singh, AIR 1997 SC 1390.

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Since ‘Judicial review’ forms an important feature of the basic structure of the Constitution, it
cannot be taken away even by an amendment to the Constitution. This has now raised a few
problems relating to judicial control over delegated legislation, such as:

i. How to make the Judiciary responsible for exceeding its legitimate limits?
ii. How to ensure that judiciary acts only in cases where the delegated legislation
assumes the character of its being a super-legislatures or parallel legislature?
iii. How to ensure that Judicial Control to preserve the ‘rule of law’; and
iv. How to ensure proper exercise of power by Judiciary.

In the fitness of things, it would be proper to suggest that the rules laid down by the Judiciary
may be codified, so as to confine its powers to the norms already laid down. It is also
necessary that the Supreme Court must frame rules under Art 141, which would be law
binding under Art 144 limiting its powers judiciously and not to overstep its legitimate
sphere. In other words, self–imposed rules by the supreme court may be a good solution to
the problems of Judicial control being made accountable, legitimate and confined to
constitutional limits to protect and preserve the Constitution and ‘rule of law’. It would be
worthwhile to remember the famous observation of Justice Frankfurter65 which is in these
words: “Judicial review is not immune against human weakness. It also must be on guard
against encroaching beyond its bounds, and not the less so, since only restraint upon it is self-
restraint”. It is hoped that the apex court will frame rules relating to its power of review in the
sphere of delegated legislation, so that it could serve as guidelines to all High Courts and also
to the Govt., to keep in mind while framing rules as well to the legislatures, while enacting
laws. It will go a long way in preserving the constitutional powers and the rule of law in a
democratic society like ours.

65
Trop Vs. Dulles 356 US 86 (158); Union of India Vs. Hindustan Development Corporation (1993)3 SCC 499.

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 CONCLUSION
Delegated legislation has a number of issues attached with it which have to be tackled
carefully for efficient administration. Even though various issues delegated legislation is
considered indispensible due to its various advantages which overpower the small
disadvantages caused. If the issues involved are considered efficiently and are dealt with then
delegated legislation can prove to be very beneficial. Though various factors for the need of
delegated legislation have been enlisted above the most prominent and dominating reasons
are :-

1. The area for which powers are given to make delegated legislation may be technically
complex, so much so, that it may not be possible and may even be difficult to set out
all the permutations in the statute.

2. The executive may require time to experiment and to find out how the original
legislation was operating and thereafter to fill up all other details.

3. It gives an advantage to the executive in the sense that a government with an onerous
legislative time schedule may feel tempted to pass skeleton legislations with the
details being provided by the making of rules and regulations.66

The Re Delhi Laws Act judgment as discussed in this case was successful in achieving two
ends: (i) It legitimized delegation of legislative power by the legislature to administrative
organs; and (ii) it imposed an outer limit on delegation by the legislature. The case has
formed the foundation on which issues regarding the possibility and extent of delegation of
legislation started to become unambiguous. It laid down the groundwork and has left it to the
judicial system to carry forward this fundamental principle.

The case specifically lays down that the British or the American model cannot be
implemented as such in India. The Indian system, though it has borrowed extensively from
other systems round the world, deserves better. It is humbly submitted by this author that, the
position in this case be regarded as the “Indian model on Delegated Legislation” set forth for
other countries to consider

Therefore it can be finally concluded that delegated legislation is necessary and beneficial for
the government to apply as it has many advantages which overpower the cons making them
easier to be overlooked.
66
Agricultural Market Committee v. Shalimar Chemical Works Ltd, AIR 1997 SC 2502.

Page | 41
 BIBLIOGRAPHY

Cases
A.V. Nachane’s Case, AIR 1982 SC 1126................................................................................40
Agricultural Market Committee v. Shalimar Chemical Works Ltd, AIR 1997 SC 2502.........42

Page | 42
Ajaile Singh Vs. Gurubachan Singh, AIR 1965 SC 1619........................................................40
Atlas Cycle Industries Ltd. v State of Haryana, AIR 1979 SC 1140........................................27
B.S. Yadav’s Case, (1981) SCC (L&S) 343..............................................................................40
Banwarilal Agawalla v. State of Bihar, AIR 1961 SC 849......................................................34
Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 306................................................38
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly, AIR 1986 SC
1571......................................................................................................................................25
Chief Inspector of Mines v. Karam Chand Thaper, AIR 1961 SC 838....................................40
D.C.Wadhwa Vs. State of Bihar, AIR 1991 SC 526.................................................................40
Dai-Ichi Karnataka Ltd. v Union of India, AIR 2000 SC 1741...............................................28
Express Newspaper (P) Ltd. v Union of India, AIR 1958 SC 548...........................................28
Harla v. State of Rajasthan, AIR 1951 SC 467........................................................................36
Hindustan Times v. State of U.P., AIR 2003 SC 250................................................................39
Hindustan Zinc Ltd. v. A.P. SEB, (1991) 3 SCC 299................................................................34
Hodge v. The Queen, [1883] UKPC 59....................................................................................10
I.T.C. Bhadrachalam Paperboards v Mandal Revenue Officer, [1996] 6 SCC 634................27
Ibrahim vs. Regional Transport Authority, AIR 1953 SC 79...................................................35
In Re Delhi Laws Act, AIR 1951 SC 332...................................................................................8
Jan Mohammad v State of Gujarat, AIR 1966 SC 385............................................................29
Jatinder Nath v. Province of Bihar, (1949) 2 FCR 595.............................................................9
Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161.........................................................40
Keshavananda Bharati v. State of Kerala, AIR 1961 Kerala 23..............................................40
M. K. Papiah & Sons v Excise Commr., [1975] 1 SCC 492....................................................26
M.K. Papiah v Excise Commissioner, AIR 1975 SC 1007......................................................29
Municipal Corporation of Greater Bombay v. Nagpal Printing Mills, AIR 1988 SC 1009....39
Narendra Kumar v. U.O.I., AIR 1960 SC 430.........................................................................36
New South Wales v. Commonwealth, (1990) 169 CLR 482.....................................................10
Panama Refining Co. v Ryan, 295 U.S. 495............................................................................10
Queen v. Burrah, 1873 3 AC 889...............................................................................................8
Radhakrishnan Laxminarayan Vs. State, AIR 1952 Nag 387..................................................40
Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549......................................................5
Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 896.......................................37
Re: Kerala Education Bill, AIR 1958 SC 956.........................................................................28
Shivaji Rao Nilangekar v. Mahesh Madhav Gosavi, AIR 1987 SC 294..................................40
Page | 43
State of Bihar v. Subesh Singh, AIR 1997 SC 1390.................................................................40
State of M.P. v Mahalaxmi Fabric Mills Ltd., AIR 1995 SC 2213..........................................26
State of M.P. v. Hazarilal, (2008) 3 SCC 273..........................................................................40
State of Orissa v. Sridhar Kumar, AIR 1985 SC 1411.............................................................36
Stoutenburgh v. Hennick, (1889) 129 U.S. 141........................................................................15
Trop Vs. Dulles 356 US 86 (158).............................................................................................41
Union of India Vs. Hindustan Development Corporation (1993)3 SCC 499..........................41
W.B. State Electricity Board v. Desh Bandhu Gosh, (1958) 3 SCC 116..................................25

Statutes
CONSTITUTION OF INDIA, 1950................................................................................................40
GENERAL CLAUSE ACT, 1897...................................................................................................33
GOVERNMENT OF INDIA ACT, 1935..........................................................................................14

Articles
Delegated Legislation in India, ILI [1964] 201.......................................................................29
Kumar Bharat, Effectiveness of Delegated Legislation over Delegated Legislation (05 August
2015)....................................................................................................................................31
Upendra Baxi, Development in Indian Administrative Law, PUBLIC LAW IN INDIA (1982) 136
................................................................................................................................................4

Books
BENJAFIELD AND WHITMORE, PRINCIPLES OF AUSTRALIAN ADMINISTRATIVE LAW (1976) 106
..............................................................................................................................................33
C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW (5th ed., 2012) 172..............................39
I.P. MASSEY, ADMISITRATIVE LAW, (9th ed. 2017) 120.............................................................32
J.C.K. THAKKER, ‘ADMINISTRATIVE LAW’ (2nd edn, Eastern Book Company, 2012)............27
S.P. SATHE, ADMINISTRATIVE LAW (7th ed., 2010)......................................................................4
WADE AND FORSYTH, ADMINISTARTIVE LAW (11 ed., Oxford Publication, 2009) 765..........30
WADE AND FORSYTH, ADMINISTARTIVE LAW (11 ed., Oxford Publication, 2009) 766..........30

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