Introduction

Delegated legislation is generally a type of law made by the executive authority as per
the powers conferred to them by the primary authority in order to execute, implement
and administer the requirements of the primary authority. It can be said that it is the
law made by any person or authority under the power of parliament. It is also known
as subordinate legislation in administrative law. It allows the bodies beneath the
primary authority or legislature to make laws according to the requirement. Through
an act of Parliament, Parliament has full authority to permit any person or authority to
make legislation. An act of parliament creates a framework of a particular law which
tends to be an outline of the purpose for which it is created. The important object of
this is that any legislation by such delegation should be according to the purposes as
laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any
need without delaying for the new act to be passed by the Parliament. If there is any
requirement then sanctions can also be altered by the delegated legislation as the
technology changes. It is believed that when such authority is delegated by the
Parliament to any person or authority it enables such person or the authority to provide
more detail to the act of the Parliament.

For example, the local authority has power conferred by the superior one to make or
amend laws according to the requirement of their respective areas. The delegated
legislation plays a very important role as the number of them are more than the acts of
the Parliament. It has the same legal standing as the act of Parliament from which it is
created.

There are three forms of delegated legislation i.e., statutory instrument, orders in
council and by-laws.
Statutory instruments
They are the one which is formed by the government. For example – a parent act is an
act which permits the parliament for making the law. Orders in the council are generally
made by the government when there is a need and it can affect the public at large as
well as an individual.

By-Laws
They are created by the local authority which is approved by the Central Government.
There are many reasons for the delegation of the legislature. The parliament does not
have that much time to deliberate and debate about every topic. Therefore, delegated
legislation helps in making laws rapidly than the Parliament and the procedure of the
Parliament is also very slow as the bills for every law needs to pass from every stage.
Further, it is also believed that the Member of Parliament does not possess the technical
ability which is required to make law.

For example – making any law regarding taxation requires knowledge as well as
experience which can be done by the person who is professional in that field. In the case
of welfare purpose, the local authority can understand the needs of the people in his
area more effectively than others. The democratic bodies have many important powers
for the delegated legislation which can be easily used for updating the legislation
according to the requirement which leads to social welfare.

But there should be control over delegated legislation. Delegated legislation is

controlled by the Parliament and the Judiciary. Parliament has the overall control over
the delegated legislation as it takes account with the statutory committees which make
law through bills. The main object of parliamentary control is to look that there is no
abuse or unnecessary use of the powers given to rulemaking authorities.
Cases
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court
that the provision under Section 3(5) of the Essential Commodities Act, 1955, which
explains that any rules framed under the Act must be presented before both the houses
of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no
effect until it is presented in the Parliament.

There are a number of rules in the area of judicial control over the delegation of
legislation which is laid down by the judiciary.

In Chandra Bhan’s case, it was held that the delegation of legislation must be
reasonable and should not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness.
Rules framed which violates the Parent Act are illegal. Rules framed which violates any
other statute should also be considered as void. Delegated legislation made with mala
fide intention is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation.

It has a better version of explanation about the Control Mechanism of Delegated
Legislation.

Factors responsible for the rapid growth of

Delegated Legislation
• Pressure on Parliament – The number of activities in states is expanding
which requires law and it is not possible for the Parliament to devote sufficient
time to every matter. Therefore for this, the Parliament has made certain policies
which allows the executives to make laws accordingly.
 • Technicality – Sometimes there are certain subject matters which requires
technicality for which there is a requirement of the experts who are professional
in such fields and members of Parliament are not experts for such matters.
Therefore, here such powers are given to experts to deal with such technical
problems like gas, atomic, energy, drugs, etc.
• Flexibility – It is not possible for the Parliament to look after each contingency
while passing an enactment and for this certain provisions are required to be
added. But the process of amendment is very slow as well as the cumbersome
process. Thus, the process of delegated legislation helps the executive authority
to make laws according to the situation. In the case of bank rate, policy
regulation, etc., they help a lot in forming the law.
• Emergency – At the time of emergency, it is not possible for the legislative to
provide an urgent solution to meet the situation. In such case delegated
legislation is the only remedy available. Therefore, in the times of war or other
national emergencies, the executives are vested with more powers to deal with
the situation.
• The complexity of modern administration – With the increasing complexity
in modern administration and the functions of the state being expanded and
rendered to economic and social spheres too, there is a need to shift to new
reforms and providing more powers to different authorities on some specific and
suitable occasions. In a country like Bangladesh, where control over private
trade, business or property may be needed to be imposed, and for implementation
of such a policy so that immediate actions can be taken, it is needed to provide
the administration with enough power.

And so, therefore for immediate and suitable actions to be taken there has been an
immense growth of delegated legislation in every country and being that important and
useful it becomes a non-separable part in the modern administrative era.
Advantages of Delegated Legislation
• Save time for the legislature.
• Allow for flexibility.
• Expert opinion is required in legislation.
• Parliament is not always present in the session.
• Used as an experimental basis.
• It is restored to use it in a situation of emergency.
• Can be easily Settle down with consulting the required party of the case.

Criticism of Delegated Legislation

• It has a long duration of bearing for legislative control because the legislature is
the supreme organ of the state as it consists of three main organs which are:
Judiciary, Legislative and Executive.
• All of them have to work with or in relation to each other and it should be done
in a balanced way on the basis of power given to each organ for working
effectively. Instead of various advantages, delegated legislation has weakened
the legislative control executive.
• The executive has become stronger with delegated legislation, it can easily
encroach the rules and regulation of legislation by making rules.
• This concept opposes the rule of Separation of Power.
• Lack of relevant discussion before framing the law.
• It is not in acceptance with the principle of rule of law.
• It is not stable in nature, it keeps on fluctuating on the ground of Political
changes.
Classification of Delegated Legislation
Power to bring Act into Action As it is already given that in a specified date this Act
will come into force prescribed by Central or State Government by giving a notice in
the Official Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power
to bring the Act into force and it should not be excessive in delegated power of
legislation. So, here the court rejected the contention that the power was excessive in
nature as per prescribed. It was practically difficult for enforcement. Therefore, power
is given to the executive authority to decide the date of enforcing the act.

Conditional Legislation the rules are framed or designed by the legislature but to
implement or enforce it, is done by the executive organ, so executive has to look that
what all conditions need to be fulfilled to bring it in operation. If all conditions are
satisfied then it is well and good otherwise notice will be issued to bring the law into
operation and it is known as Conditional Legislation.

Condition legislation is of following types

• Power to bring the act into action.

• Power to extend the time period or life of the act.
• Power to extend the application of the act to any territory and to make restriction
or make an alteration in the act itself.
• Exempt the operation on certain ground or subjects of territories.

Power to fill in the blanks of the format – A rough format is prepared by the legislature
and pass on to the executive to fill up with all the necessary blanks or elements needed
by the subordinate legislation.

Power face in removing difficulties – Power to modify the statute maybe given to the
government by removal of difficulties clause.
Control of Delegated Legislation
There are three kinds of Control given under Delegated Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control
3. Executive or Administrative Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s
not only the right but the duty of the legislature to look upon its agent, how they are
working.

It is a fact that due to a delegation of power and general standards of control, the judicial
control has diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because the

executive is responsible to the legislature at two stages of control.

1. Initial stage
2. Direct and Indirect stage

In the Initial stage, it is to decide how much power is required to be delegated for
completing the particular task, and it also observed that delegation of power is valid or
not.Now, the second stage consists of two different parts.

1. Direct control
2. Indirect control
Direct control
Laying is an important and essential aspect under direct control and it is laid down as
per the requirement which means that after making the rule it should be placed before
the Parliament. It includes three important part as per the degree of control needs to be
exercised.

1. Simple Laying
2. Negative Laying
3. Affirmative Laying

And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule
into impact then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular format
then it becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into operation then
it will be directory in nature.

Indirect control

This is a control exercised by Parliament and its committees. Another name for such
type of committee is Subordinate legislation. The main work of the committee is to
examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
 4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the
actual objective of the act. Hence, procedural control means that under Parent act certain
guidelines are given which need to be followed while whether it is mandatory or
directory to follow it or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.

It can be either Mandatory or Directory, to know, certain specified parameters are

given:Scheme of the Act.

1. Intention of Legislature.
2. Language used for drafting purpose.
3. Inconvenience caused to the public at large scale.

And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council
Judicial Control
Public administration exercises a large volume of power to meet the citizens need in modern democratic
welfare state. Today administration is not concerned with only pure administrative function but also
involved with a large number of quasi-legislative and quasi-judicial functions. In this respect they have
a number of chances to become arbitrary or master of the citizens. So it is very necessary to control
them. By judicial control is meant the power of
the courts to examine the Legality of the officials act and thereby to safeguard the fundamental and
other essential rights of the citizens.
The underlying object of judicial review is to ensure that the authority does not abuse its power and the
individual receives just and fair treatment and not to ensure that the authority reaches a conclusion,
which is correct in the eye of law. It comprises the power of a court to hold unconstitutional and
unenforceable any law or order based upon such law or any other action by a public authority which is
inconsistent or in conflict with the basic law of the
land The role of judiciary in protecting the citizens against the excesses of officials has become all the
more important with the increase in the powers and discretion of the public officials in the modern
welfare states. But the courts cannot interfere in the administrative activities of their own accord.

They can intervene only when they are invited to do so by any person who feels that
his rights have been abrogated or are likely to be abrogated as a result of some action of the
public official. Secondly, the courts cannot
interfere in each and every administrative act, as too much of Judicial action may make the
official too much conscious and very little of it may make them negligent of the rights of
citizens.
Generally judicial intervention in administrative activities is confined to the following cases:

a) Lack of Jurisdiction:
f any public official or administrative agency acts without or beyond his or her authority or
jurisdiction the courts can declare such acts as ultra-virus. For instance, according to
administrative rules and procedures, in all organizations, the competent authority is identified for
taking decisions and actions. If any authority or person other than the competent authority takes
action, the court’s intervention can be sought under the provisions of lack of jurisdiction.
b) Error of Law:
This category of cases arises when the official misconstrues the law and imposes upon the citizen
obligations, which are absent in law. This is called misfeasance in legal terminology. The courts
are empowered to set right such cases.

c) Error of Fact:
This category of cases is a result of error in discovering cases and actions taken on basis of
wrong assumptions. Any citizen adversely affected by error of judgment of public official can
approach courts for redressal.

d) Error of Procedure:
“Due procedure” is the basis of governmental action in a democracy. Responsible government
means a government by procedure. Procedure in administration ensures accountability, openness
and justice. Public officials must act in accordance with the procedure laid down by law in the
performance of the administrative activities. If the prescribed procedure is not followed the
intervention of the courts can be sought and legality of administrative actions can be questioned.

e) Abuse of authority:
If a public official exercises his or her authority vindictively to harm a person or use authority for
personal gain, court’s intervention can be sought. In legal terms, it is called malfeasance. The
courts can intervene to correct the malfeasance of administrative acts.

Forms of Judicial control over public Administration

Judicial Review
The judicial review implies the power of the courts to examine the legality and constitutionality
of administrative acts of officials and also the executive orders and the legislative enactments.
This is very important method of judicial control The statutes made by Parliament and State
Assemblies itself provide that in a particular type of administrative action,’ the aggrieved party
will have a right of appeal to the courts or to a higher administrative tribunal.
Sometimes, legislative enactment itself may provide for judicial intervention in certain matters.
Statutory Appeals The statutes made by Parliament and State Assemblies itself provide that in a
particular type of administrative action the aggrieved party will have a right of appeal to the
courts or to a higher administrative tribunal. Sometimes, legislative enactment itself may provide
for judicial intervention in certain matters. The
State is liable for the tortuous acts of its officials in respect of the non-sovereign functions only.

Criminal and Civil Suits against Public Officials

In India civil proceedings can be instituted against a public official for anything done in his
official capacity after giving two months notice. When criminal proceedings are to be instituted
against an official for the acts done in his official capacity, previous sanctions of the Head of the
State i.e., the President or the Governor is required. Some functionaries like the President and the
Governor are immune from legal proceedings even in respect of their
personal acts. Ministers, however, do not enjoy such immunity.

Extraordinary Remedies
Apart from the methods of judicial control already discussed, there are the extraordinary
remedies in the nature of writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo
Waranto. These are called extraordinary remedies because the courts grant these writs except the
writ of Habeas Corpus, in their discretion and
as a matter of right and that too when no other adequate remedy is available. A writ is an order of
the court enforcing compliance on the part of those against whom the writ is issued. In India
these writs are available under the provisions of the Constitution. While the Supreme Court is
empowered to issue these writs or orders or
directives only for the enforcement of Fundamental Rights, the High Courts are empowered to
issue these writs not only for the enforcement of Fundamental Rights but also for other rights.
We will discuss these writs now.

Habeas Corpus:
Habeas Corpus literally means to have the body of. This writ is an order issued by the court
against a person who has detained another to produce the latter before the court and submit to
its orders. If it is found that the person in unlawfully or illegally detained, he will be set free.

Mandamus:
Mandamus literally means command. If a public official fails to perform an act which is a part of
his public duty and thereby violates the right of an individual, he /she will be commanded
to perform the act through this writ.

Prohibition:
It is a judicial writ issued by a superior court to an inferior court, preventing it from usurping
jurisdiction, which is not vested with it. While Mandamus commands activity, Prohibition
commands inactivity. This writ can be issued only against judicial or quasijudicial authorities to
prevent exercise of excess of jurisdiction by a subordinate court. As such, its significance as a
method of judicial control over administration is limited.
Certiorari:
While Prohibition is preventive; Certiorari is both preventive and curative. It is a writ issued by a
superior court for transferring the records of proceedings of a case from an inferior court or
quasijudicial authority to the superior court for determining the legality of the proceedings.

Quo Waranto:
Literally, Quo Waranto means ‘on what authority’. When any person acts in a ‘public office’ in
which he/she is not
entitled to act, the court by the issue of this writ, will enquire into the legality of the claim of the
person to that office. If the said claim is not well founded, he or she will be ousted from that
office. It is, thus, a powerful instrument against the usurpation of’public offices’

Limitations of judicial control over administration

The effectiveness of judicial control over administration is limited by many factors. Some of
these limitations are:

1. Unmanageable volume of work:

the judiciary is not able to cope up with the volume of work. In a year the courts are able to deal
with only a fraction of cases brought before it. Thousands of cases have been pending in
Supreme Court, High Courts and Lower Courts for years together for want of time. There is an
increase in the cases of litigation without a commensurate expansion of judicial mechanism. This
excessive delay in the delivery of justice discourages many to approach the court. The feeling of
helplessness results in denial of justice to many.

2.Post-mortem nature of judicial control:

In most of the cases the judicial intervention comes only after enough damage is done by the
administrative actions. Even if the courts set right the wrong done, there is no mechanism to
redress the trouble the citizen has undergone in the process.

3. Prohibitive Costs:
The judicial process is costly and only rich can afford it. There is some truth in the criticism of
pro-rich bias of judicial system in India. As a result, only rich are able to seek the protection of
courts from the administrative abuses. The poor are, in most cases, the helpless victims of the
administrative arbitrariness and judicial inaction.

4. Cumbersome procedure:
Many legal procedures are beyond the comprehension of common man. The procedural tyranny
frightens many from approaching the courts. Even though the procedures have a positive
dimension of ensuring fair play, too much of it negates the whole process.

5. Statutory limitations:
the courts may be statutorily prevented from exercising jurisdiction in certain spheres. There
are several administrative acts, which cannot be reviewed by courts.

6. Specialized nature of administrative actions:

The highly technical nature of some administrative actions act as a further limitation on judicial
control. The judges, who are only legal experts, may not be able to sufficiently appreciate the
technical implications of administrative actions. As a result, their judgments may not
be authentic.

7. Lack of awareness:
In developing societies, most of the people who are poor and illiterate are not aware of judicial
remedies and
the role of the courts. As a result they may not even approach the court to redress their
grievances. The courts which can intervene only when it is sought may be helpless in this
situation. The general deprivation of people also results in deprivation of justice to them.

8. Erosion of autonomy of judiciary:

There is executive interference in the working of judiciary. The quality of judiciary mostly
depends on the quality of the judges. The Law Commission made many recommendations to
ensure the judicial standards of the bench. The suggestion to create Judicial Commission
with responsibility for judicial appointments deserves serious consideration. In recent years,
there are many allegations of corruption against judges. This undermines the prestige
and the effectiveness of the judiciary.