ITM UNIVERSITY CHHATTISGARH

PROJECT

SUBJECT - Comparative Public Law and

System of Governance

(Topic -JUDICIAL REVIEW ON DELIGATED

LEGISLATION.)

Submitted To: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
FACULTY , LLM

Submitted BY : Pratham Agrawal

LLM Semester - I
 DECLARATION

I hereby declare that the assignment entitled “JUDICIAL REVIEW OF DELEGATED

LEGISLATION.”submitted to the ITM UNIVERSITY , is a record of an original work done by me
under the guidance of _______________________ teacher Department of Law , and this
assignment is submitted in the partial fulfillment of the requirements for the award of the degree of
LLM. The research embodied in this paper have not been submitted to any other University or
Institute for the award of any degree or diploma.
 ACKNOWLEDGEMENT

At the outset, I would like to thank god for his blessings and benevolently granting me vigor and
audacity to complete my assignment successfully . Before submitting my LLM assignment .

It is indeed with a great sense of pleasure and immense sense of gratitude that I acknowledge the
help of these individuals. I would like to thank teacher Department of Law for
her/his support and guidance.

I am thankful to his/her for his/ her invaluable teaching and advise given to me, for helping me in
exploring and understanding the assignment preparation and research methodology better.

PRATHAM AGRAWAL
 4

INDEX

CONTENT PAGE NO.

INTRODUCTION 5
RESEARCH METHODOLOGY 6
OBJECTIVES 6
LIMITATIONS 6
WHAT IS DELEGATED LEGISLATION? 7
1. Meaning…………………………………………………… 7
2. Reasons for Growth……………………………………… 8
3. Types……………………………………………………… 8
4. Criticism………………………………………………….. 9
CONSTITUTIONALITY OF DELEGATED LEGISLATION 9
1. Position in the USA………………………………………… 9
2. Position in UK……………………………………………… 11
3. Position in India…………………………………………… 12
4. Limitations on Delegated Legislation in India…………… 14
DOCTRINE OF ULTRA VIRES 16
1. Substantive Ultra-vires…………..………………………… 16
2. Procedural Ultra-vires……………………………………… 22
CONCLUSION 24
REFERENCES 25

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INTRODUCTION

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 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."1 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."2 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 analyse its various aspects.
In the research project, the author will deal with (1) Need and Types of Delegated
Legislation, (2) Constitutionality of Delegated Legislation in USA and UK, (3) Delegated
Legislation under Indian Constitution, and (4) Judicial Control over Delegated Legislation.

1
Cooley's Constitutional Limitations, Volume I at page 224
2
Cooley, The General Principles Of Constitutional Law In The United States Of America., Section XVI,
available at http://www.constitution.org/cmt/tmc/pcl.htm accessed on 24/09/2018

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RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information about the topic.

Websites, books, journals, articles and reports have been primarily helpful in giving this
project a firm structure.

Footnotes have been provided wherever needed to acknowledge the source.

OBJECTIVES

 To discuss about the concept of Delegated Legislation.

 To study and discuss about Constitutionality of Delegated Legislation in other
countries.
 To discuss about the Judicial Review of Delegated Legislation.

LIMITATIONS

As the topic of research is very vast and, time & no. of pages for research project are limited,
for convenience and detailed discussion the author will focus mainly on Delegated
Legislation in US, UK and India.

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CHAPTER-I: WHAT IS DELEGATED LEGISLATION?

Meaning
Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the
legislature's authority. Often, a legislature passes statutes that set out broad outlines and
principles, and delegates authority to an executive branch official to issue delegated
legislation that flesh out the details (substantive regulations) and provide procedures for
implementing the substantive provisions of the statute and substantive regulations (procedural
regulations). Delegated legislation can also be changed faster than primary legislation so
legislatures can delegate issues that may need to be fine-tuned through experience.
Salmond defines delegated Legislation as, “that which proceeds from any authority other than
soverign power and is therefore, dependent for its continued existence and validity on some
superior or supreme authority”3.
The term delegated legislation may be used in 2 senses:
1. The exercise of law making power by the administrative authority delegated to it by
the legislature; or
2. The actual exercise of law making power itself in the forms of rules and regulations
etc.4

A portion of law-making power of the legislative is conferred or bestowed upon a subordinate

authority. Rules & regulations which are to be framed by the latter constitutes an integral
portion of the statute itself. It is within power of parliament when legislating within its
legislative few, to confer suborbital administrative & legislative powers upon some other
authority. Subordinate legislation, is the legislation made by an authority subordinate to the
sovereign authority, namely, the legislature.
Most of the enactments provide for the powers for making rules, regulations, by-laws or other
statutory instruments which are exercised by specified subordinate authorities. Such
legislation is to be made within the framework of the powers so delegated by the legislature
and is, therefore, known as delegated legislation. Thus all law making which takes place

3
Salmond, Jurisprudence (12th ed.) 116.
4
See, Jain and Jain, Principles of Administrative Law (7th ed.), page no. 26.

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outside the legislature expressed as rules, regulations, bye laws, orders, schemes, directions
or notifications etc is termed as delegated legislation.

Reasons for Growth

Law-making is not a turkey project, readymade in all detail and once this situation is grasped,
the dynamics of delegation easily follows.5 From the above generalization, the factors leading
to the growth of delegated legislation may be particularised as follows:6
1. Law making or ever widening modern welfare and service state is not possible. For
the nature and quality of work required 365 days – may not be sufficient and if
overburdened the parliament can’t give quality legislation. Also it is occupied with
important policy matters and rarely finds time to discuss matters of details.
2. Filling in Details of legislation- The executive in consultation with the experts or with
its own experience of local conditions can better improvise. Also legislation has
become highly technical because of the complexities of a modern govt.
3. Need for flexibility:- Ordinary legislative process suffers from the limitation of lack
of experiment. A law can be repeated by parliament itself, if it required adjustment
administrative rule making is the only answer between two sessions.
4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis
legislation is needed.
5. When Govt. action required discretion – rule making power of administrative
agencies is needed when the government needs to have discretion to carry out the
policy objectives.
6. Direct participation of those who are governed is mere possible in delegated
legislation.

Types
Power to bring an Act into operation: on rule date on the Govt. by notification in the Gazette.
Example: on such date as the government by notification in the gazette because govt. has
better knowledge of the practical exigencies of bringing the law into force.
The Court Cannot Ask the Govt. to bring the law into force. It was held in A.K. Roy. v. UOI7
where the constitution of the Advisory Board was in question and the term qualified to be a

5
Avinder Singh v. State of Punjab, (1979) 1 SCC 137, 147.
6
See, IP Massey, Administrative Law, (8th ed.), page no. 81.

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High Court judge changed to actual or had been a High Court judge. National Security Act.
1980 did not have this provision it was held by the that the court cannot ask the Govt. to
implement.

Conditional Legislation : - The legislation make the law but leaves it to the executive to bring
the act into operation when conditions demanding such operation are obtained.
(a) To bring an act into operation.
(b) To extend the application of any act in force in one territory.
(c) To extend or to except from the operation of an Act certain categories of subjects or
territories.

Criticism
Delegated legislation is criticized for its various main defects which are as follows:-
• It has been suggested that by allowing delegated legislation it has allowed to make
and amend laws.
• It lacks democracy as too much delegated legislation is made by unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary
legislation. Parliament therefore has a lack of control over delegated legislation and
this can lead to inconsistencies in laws. Delegated legislation therefore has the
potential to be used in ways which Parliament had not anticipated when it conferred
the power through the Act of Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made by
statutory instrument the public are not normally notified of it whereas with Acts of
Parliament, on the other hand, they are widely publicized. One reason for the lack of
publicity surrounding delegated legislation is because of the volume of delegated
legislation made and this result in the public not being informed of the changes to law.
There has also been concern expressed that too much law is made through delegated
legislation.

7
AIR 1982 SC 710.

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CHAPTER-II: CONSTITUTIONALITY OF DELEGATED LEGISLATION

Position in the USA:

The position of constitutionality of delegated Legislation in US can be divided under 2 heads:
1. In theory
2. In practice

IN THEORY
Two phenomena operate in the USA namely—
1. Separation of Power and
2. “Delegatus non potest delegare”.
Since Congress was itself a delegate, how can it delegate its power. The framers of
the American Constitution were imbued with the political theories propagated by John Locke
and Montesquieu. Montesquieu had developed this doctrine of separation of powers. The
framers of the American Constitution adopted the doctrine in its full force as seen in the
provisions of the US Constitution:
Art. 1, section 1. All legislative powers herein granted shall be vested in the Congress of the
United States, which shall consist of a Senate and House of Representatives.
Art. 2, section 1. The executive power shall be vested in a President of the United States of
America.
Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress many, from time to time, ordain and
establish.
Alongside this doctrine of separation of powers the American constitutional law had another
doctrine which also negatived the delegation of power. “The rule against the delegation of
legislative powers, if there is such a rule, is broader than any doctrine of separation of
powers. That part of its which forbids the delegation of powers to other branches or the
government comes within the doctrine of separation of powers. That part of it which forbids
the delegation of powers to independent boards or commissions rests upon the maxim
delegata potestas non potest delegare.”8 Therefore the powers thus delegated are not
legislative powers. They are instead administrative or quasi-legislative powers.

8
Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56

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IN PRACTICE

Though, in theory, was not possible for the Congress to delegate its legislative power to the
executive, strict adherence thereto was not practicable. Governmental functions had increased
and it was impossible for the Congress to enact all the statutes with all particulars9.

The Supreme Court could not shut its eyes to this reality and tried to create a balance between
the two conflicting forces:

1) doctrine of separation of powers barring delegation, and

2) inevitability of delegation due to the exigencies of the modern Government.

In Panama Refining Co. v. Ryan10, popularly known as the Hot Oil case, under Section 9 (c)
of the National Industrial Recovery Act (NÌRA), 1933, the President was authorised by the
Congress to prohibit transportation of oil in interstate commerce in excess of the quota fixed
by the State concerned. The policy of the Act was "to encourage national industrial recovery"
and "to foster fair competition". The Supreme Court by majority held that the delegation was
invalid. According to the court the Congress had not declared any legislative policy or
standard.

In Schechter Poultry Corp. v. United States11 (Sick Chicken case), the Supreme Court
unanimously struck down Section 3 NIRA, 1933 which authorised the President to approve
codes of fair competition and violation thereof was made punishable. The court held that the
discretion of the President was virtually unfettered.

After the two cases mentioned above, however, the Supreme Court took a liberal view and in
many cases, upheld delegation of legislative power. Thus, in National Broadcasting Co. v.
United States12, vast powers were conferred upon the Federal Communication Committee
(FCC) to licence broadcasting stations under the Communications Act, 1934. The criterion
was "public interest, convenience or necessity". Though it was vague and ambiguous, the
Supreme Court held it to be a valid standard.

9
C.K. Takwani, Lecture on Administrative Law, (5th ed.), page no. 73.
10
79 L Ed 446:293 US 388 (1934).
11
79 L Ed 1570: 295 US 495 (1935).
12
87 L Ed 1344: 319 US 190 (1943).

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Similarly, in Yakus v. United States13, under the Emergency Price Control Act, 1942, the
Price Administrator was given the power to fix such maximum price which "in his judgment
will be generally fair and equitable and will effectuate the purposes of the Act". The
Administrator was required, so far as practicable, to give due consideration to the prices
prevailing between 1 October and 15 October 1941, but was allowed to consider a later date
if necessary data were not available, and yet the Supreme Court sustained the delegation,
holding that the standards were adequate. Roberts J (minority view) rightly observed that by
the majority judgment, Sick Chicken case was overruled.

So, here we can see that the US has accepted Delegated Legislation and also has put some
limitations on it.

Position in UK:

In England the Parliament is Supreme, unhampered by any constitutional limitations with

wide legislative powers on the executive. Parliament being supreme and it power to legislate
being unlimited, there is nothing to prevent Parliament from delegating its legislative power
to the executive officers or other subordinate bodies.

Sir Cecil Carr in this "Delegated Legislation" quoted in the Report of the Committee on
Ministers' Powers, usually referred to as the Donoughmore Committee, said : "The first and
by the far smallest part is made by the Crown under what survives of the prerogative. The
second and weightiest part is made by the King in Parliament and consists of what we call
Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King
in Parliament entrusts with legislative power."14 As observed by Sir Cecil Carr, "the truth is
that if Parliament were not willing to delegate lawmaking power, Parliament would be unable
to pass the kind and quantity of legislation which modern public opinion requires." In
England, the practice of delegating legislative power has certainly been facilitated by the
close fusion of the legislative and executive power resulting from the development the
cabinet system of government in England.

13
88 L Ed 834: 321 US 414 (1944).
14
Sir Cecil Carr, Delegated Legislation: Three Lectures, pg 4. Available at
https://archive.org/stream/delegatedlegisla00carr/delegatedlegisla00carr_djvu.txt

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Position in India:

The Privy Council was the highest Court for appeal from India in constitutional matters till
1949. The question of constitutionality came before the Privy Council in the famous case of
R.V.. Burah15. An Act was passed in 1869 by the Indian Legislature to remove Groro Hills
from the civil and criminal jurisdiction of Bengal and vested the powers of civil and criminal
administration in an officer appointed by the Legislative Governor of Bengal. The Legislative
Governor was further authorized by section 9 of the Act to extend any provision of this Act
with incidental changes to Khasi and Jaintia Hills. By a notification the Legislative-Governor
extended all the provisions of the Act to the districts of Khasi and Jaintia Hills. One Burah
was tried for murder by the commissioner of Khasi and Jaintia Hills and was sentenced to
death. The Calcutta High Court declared section 9 as unconstitutional delegation of
legislative power by the Indian legislature. The ground was that the Indian Legislature is a
delegate of British Parliament, therefore, a delegate cannot further delegate. The Privy
Council on appeal reversed the decision of the Calcutta High Court and upheld the
constitutionality of section 9 on the ground that it is merely a conditional legislation. The
decision of the Privy Council was interpreted in two different ways.
(i) Indian legislature was not delegate of British Parliament; there is no limit on the
delegation of legislative functions.
(ii) Since Privy Council has validated only conditional legislation. Therefore, delegation of
legislative power is not permissible.
So, it did not become clear whether full-fledged delegated legislation was allowed or only
conditional legislation was allowed.

FEDERAL COURT
The question of constitutionality of delegation of legislative powers came before the Federal
Court in Jhatindra Nath Gupta V.. Province of Bihar16. On this case section 1(3) of Bihar
Maintenance of public order Act, 1948 was challenged on the ground that it authorized the
provincial government to extend the life of the Act for one year with modification as it may
deem fit. The Federal Court held that the power of extension with modification is
unconstitutional delegation of legislative power because it is an essential legislative Act. In
this manner for the first time it was held that in India legislative powers cannot be delegated.

15
(1878) 3 AC 889
16
AIR 1949 FC 175

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However, Fazal Ali J. in his dissenting opinion held that the delegation of the power of
extension of the Act is unconstitutional because according to him it merely amounted to a
continuation of the Act. Later on, it is submitted that the minor view was correct and the
Supreme Court upheld similar provision in another cases.

SUPREME COURT
The decision in Jatindra Nath Case created doubts about the limits of delegation of
legislative powers. Therefore, in order to clarify the position of law for the future guidance of
the legislature in matters of delegation of legislative function, the President of India sought
the opinion of the Court under Article 143 of the Constitution on the constitutionality of three
Acts which conferred extension of area and modification power to the executive.
The Delhi Laws Act case17, among them, said to be the Bible of delegated legislation. Seven
judges heard the case and produced separate judgments. The case was argued from two
extreme points.
Argument-1: Power of legislation carries with it the power to delegate. If the legislative don’t
abdicate itself, there can be no limitation on delegation of legislative powers.
Argument-2: As there is in the Constitution the separation of powers and delegatus non
potest delegare, so there is an implied prohibition against delegation of legislative powers.
The Supreme Court took the moderate view and held-
(i) Doctrine of separation of powers is not a part of the constitution.
(ii) Indian Parliament is never considered an agent of anybody and therefore doctrine of
delegatus non potest delegare has no application.
(iii) Parliament cannot abdicate or efface itself by creating a legislative body.
(iv) Power of delegation is ancillary to the power of legislation.
(v) The limitation upon delegation of power is that the legislature cannot part with its
essential legislative power that has been expressly vested in it by the constitution. Essential
legislative power means laying down the policy of the law and enacting that policy into a rule
of conduct.
So, the delegation was held to be valid except with repealing and modification of legislative
power.

17
AIR 1951 SC 332

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Limitations on Delegated Legislation in India:

The courts with the passage of time has given specific guidelines as to what power shall not
be delegated, i.e. the powers that form part and parcel of Essential Legislative Function.
Which are summed up as below:
1. The Legislature cannot delegate Essential Legislative Functions which consist in the
determination or choosing of the Legislative Policy and of formally enacting that
policy into a binding rule of conduct18.
2. Thus what is permitted is the delegation of ancillary or subordinate legislative
functions or a power to fill up the details.
3. Whether any particular legislation suffers from Excessive Delegation has to be
decided by courts having regard to the subject-matter, the scheme, the provisions of
the statute including its preamble, and the facts and circumstances in the background
of which the statute is enacted19.
4. Essential Legislative Functions include the power to repeal or modify a law and
cannot be delegated.
5. In the absence of an express or implied power to that effect, Delegated Legislation, be
it a rule, bye-law or a notification, cannot have retrospective operation20.
6. A power to Tax or levy any fee cannot be inferred from mere generality of the powers
conferred by the enabling enactment. Such power of imposition of tax or fee by
Delegated Authority must be very specific and there is no scope of implied authority
for imposition of such tax or fee21.
7. One of the important conditions prescribed under Section 23 of the General Clauses
Act, 1897 is that the authority having power to make the rules or bye-laws shall,
before making them, must publish a draft of the proposed rules or bye-laws for the
information of person likely to be affected thereby.
8. Where the delegating statute itself is ultra vires to the Constitution of India, the rules
made under such statute are also unconstitutional.

18
In re, Article 143, Constitution of India, AIR 1951 SC 332.
19
Bhatnagar & Co. v. Union of India, AIR 1957 SC 478.
20
India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326.
21
Ahemdabad Urban Development Authority v. Sharad Kumar Jayanti Kumar Pasawalla, AIR 1992 SC 1393.

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9. The power to modify the parent statute is limited to bringing aboutconsequential

changes and cannot be exercised to subvert the policy laid down by the legislature. No
radical changes in the enacted law is permitted22.
10. The legislature is the master of policy and if the delegate is free to switch policy it
may be usurpation of legislative power itself23.
11. Delegated Legislation may also be declared invalid on the following grounds:
A. Violation of the Constitution of the India.
B. Violation of the Enabling Act.
C. Violation of Principles of Natural Justice when the Statute itself provides of such
requirement.

22
Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.
23
Supra note 5.

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CHAPTER-III: DOCTRINE OF ULTRA-VIRES

In India, judicial review of Administrative rule making is subject to normal rules

governing the review of administrative action. Nevertheless, the principles on which
constitutionality of a statute is judged and that of sub-ordinate legislation is different.24 A
subordinate legislation could not enjoy the same degree of immunity as the legislative act
would.25 In State of Kerela v. K.M.C. Abdulla & Co.26, the court held that validity of rules can
still be challenged even in face of such a phrase as “shall not be called in question in any
court” in the enabling act.

Grounds on which delegated legislation may be challenged

The doctrine that is relied upon by the Judiciary to Review the Delegated Legislation
is mainly based on Doctrine of Ultra Vires, so Judicial review can hence be divided into two
heads:
1) Substantive Ultra Vires
2) Procedural Ultra Vires

SUBSTANTIVE ULTRA-VIRES
1. Enabling Or Parent Act Is Unconstitutional:

In India, there is supremacy of the Constitution and therefore an act passed by the
Legislature is required to be in conformity with the constitutional requirement and if it is
found to be in violation of the constitutional provisions, the court declares it unconstitutional
and void. If enabling or parent act (i.e the act providing for the delegation) is void and
subordinate or delegated legislation made under the act will also be declared to be
unconstitutional and therefore void27. The limits of the Constitution may be express and
implied.
Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution.
Article 13(1) provides that all laws in force in the territory of India immediately before the
commencement of the constitution in so far as they are inconsistent with the provisions of

24
Supra note 6, at page no. 130.
25
State of kerela v. Unni, (2007) 2 SCC 365.
26
AIR 1965 SC 1985.
27
Supra note 17.

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Part III (fundamental rights) shall, to the extent of the contravention, be void. According to
article 13(2), the state shall not make any law which takes away or abridges the rights
conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this
clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for
this purpose, unless the context otherwise requires , law includes any ordinance, order, by –
law, rule, regulation, notification, custom or usage having in the territory of India, the force
of law. The legislature, thus, cannot violate the provisions of part III of the constitution
granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental
Rights granted by part III of the constitution, it will be declared by the court as
unconstitutional and void, and the subordinate or delegated legislation made under the act
will also be held to be unconstitutional and void.
Article 245 makes it clear that the legislative powers of the parliament and that of the
state legislatures are subject to the provisions of the constitution. Parliament may make laws
for the whole or any part of the territory of India and the legislatures of a state make laws for
the whole or any part of the state. No law made by the parliament shall be deemed to be
invalid on the ground that it would have extra territorial operation. The state legislature can
make law only for the State concerned and, therefore, the law made by the state legislature
having operation outside the state would be invalid28. In the matter of Cauvery Water
Disputes Tribunal29, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was
declared unconstitutional on certain grounds including the ground that it had extra territorial
operation inasmuch as it interfered with the equitable rights of Tamil Nadu and Pondicherry
to the waters of Cauvery River.
In short, no law made by Parliament shall be deemed to be invalid on the ground that
it would have extra territorial operation. However, the law made by the state legislature may
be challenged on the ground of extra territorial operation. If the parent act is declared to be
unconstitutional, then the delegated legislation made under such act would also be declared to
be unconstitutional and thus, void.
Article 246 makes provisions in respect of the distribution of powers between the
powers between the Parliament and the State legislatures. From article 246 and the seventh
schedule, it becomes clear that the subjects have been divided into three categories – Union
list, State list and Concurrent list. Parliament has exclusive power to make laws with respect

28
Clarence v. Great N. of England Rly., (1845) 13 M and W 706 (721)
29
In The Matter Of Cauvery Water ... v. Date Of Judgment22/11/1991 on 22 November, 1991: Equivalent
citations: 1992 AIR 522, 1991 SCR Supl. (2) 497 .

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to any of the matters or subjects enumerated in the Union list and of the legislature of any
state has power to make laws for such state or any part thereof with respect to any of the
matters or subjects enumerated in the State list. Parliament and State Legislatures both have
power to make laws with respect to any of the matters or subjects enumerated in the
Concurrent List, but In the case of conflict between the law made by Parliament and a law
made by the State Legislature with respect to such matter or subject, the law made by
Parliament shall prevail and the laws made by the State Legislature, to the extent of
repugnancy. be void, unless the law made by the State Legislature has received the assent of
the President.
Implied limit: If the Enabling or Parent Act violates the implied limit of the
Constitution, it will be ultra vires the Constitution and therefore It will be void and the
delegated legislation made under the Act will also be unconstitutional and void. The implied
limit of the Constitution Is that essential legislative function entrusted to the legislature by the
Constitution cannot be delegated by it. The essential legislative function consists of the
determination of the legislative policy and its formulation as a rule of conduct30. The
legislature delegating its legislative power must lay down the legislative policy and
guidelines regarding the exercise of tin delegated power by delegate. The delegation of
essential legislative function is taken as abdication of essential legislative function by the
Legislature and this is not permitted by the Constitution.
In a case31 the Supreme Court has made it clear that the essential legislative function
which consists of the determination of the legislature policy cannot be delegated. Such
delegation would amount to abdication of the essential legislative functions.
The Supreme Court has made it clear that the excessive delegation is not
permissible32. The doctrine of excessive delegation has played an important role in
controlling the practice of delegated legislation. Excessive delegation is taken as abdication
of essential legislative function by the legislature33. The delegation must not be unguided and
uncontrolled. If the delegation is excessive, the Enabling Act or Parent Act will be
unconstitutional and therefore void and the delegated legislation made under such Enabling
or Parent Act will also be unconstitutional and void.

30
Vasant lal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4
31
Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. V.. The Asstt. Commissioner of Sales Tax & Ors, 1974 AIR 1660
32
Supra note 5.
33
Harishankar Bagla v. The State of Madhya Pradesh, 1954 AIR 465

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2. Subordinate Or Delegated Legislation Is Ultra Vires The Constitution:

Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but
the subordinate or delegated legislation made under It violates the provisions of the
Constitution. Such subordinate or delegated legislation will be unconstitutional and void,
though the Enabling or Parent Act is perfectly valid. Thus, the subordinate or delegated
legislation, (e.g., rules, regulations, by- laws, etc.) made under the Enabling or Parent Act
may be unconstitutional while the Enabling or Parent Act is constitutional34.
In Dwarka Prasad Laxmi Narain v. State of U.P., s. 3(1) of U.P. coal control order issued u/s
3 of Essential Supplies (Temporary powers) act, 1946 provided that no one can carry on
business in coal except under licence. Rule 3(2)(b) further laid down that the state coal
controller can exempt any person from license requirement. The court held the rule to be
Ultra-vires Article 19(1)(g) as it places unreasonable restriction by granting arbitrary powers
to the executive.
Article 31-B of the Constitution of India is also notable here. The Acts and Regulations
Included in the IXth Schedule of the Constitution are protected under Article 31-B against the
ground of Infringement of any of the Fundamental Rights, but not against other grounds. The
protection of Article 31-B is available only to the Acts or Regulations placed In the IXth
Schedule of the Constitution. If an Act Is placed under the IXth Schedule, the protection of
Article 31-B will be available to such Act, but this protection will not be available to the
delegated legislation made under It. Thus, the delegated legislation may be challenged on the
ground that it violates the Constitution, even though the Enabling or Parent Act under, which
it has been made is protected by Article 31-B35.

3. Delegated Legislation Is Ultra Vires The Enabling Or Parent Act:

The validity of the subordinate or delegated legislation can be challenged on the ground that
it is ultra vires the Enabling or Parent Act. The challenge to the constitutionality of
Administrative rule making on the ground that it is ultra vires the enabling act can be
sustained on the following grounds:

34
Narendra Kumar v. UoI, AIR 1960 SC 430.
35
Prag Ice & Oil mills v. UoI, 1978 AIR 1296.

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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;36
Every order made under a statutory provision must not only be within the authority
conferred by statutory provision, but should also stand the test of constitutionality.
Parliament can’t be presumed to have intended to confer power on an authority to act
in contravention of constitutional provisions. It is a basic constitutional assumption
underlying every statutory grant of power that the authority on which the power is
conferred should act constitutionally and not in violation of constitution.37
ii) Inconsistency with parent act; the validity of the delegated legislation can be
challenged on the ground that it is ultra vires the parent act or the delegating statute.
In Ram Prasad v. State38, the U.P. Panchayat Raj Act, 1947, provided in s. 49 that
every case triable in panchayat adalat must be tried by a bench constituted in the
manner laid down in the act. Rule 87 stated that a bench of 3 members would
constitute a forum, which was less than the number provided in the act. The said rule
was struck down as it was in direct conflict with the parent act. Also, conflict with the
enabling act may arise with reference to the “Objects and Purposes” of the enabling
act. Delegated legislation should promote rational and accountable policy
implementation as laid down in the act.39
iii) Delegated legislation must be reasonable or do not suffer from unreasonableness.
This has been ruled in Chandra Bhan’s case40. Also, the Supreme Court in Indian
Express Newspapers (Bombay) (P) Ltd. v. Union Of India41held that subordinate
legislation does not enjoy the same degree of immunity as substantive legislation.
“Unreasonableness” is one of the grounds of Judicial review to check the valisity of
delegated legislation. Supreme Court has held that, unreasonableness is not what the
court thinks that it goes further than “is necessary” or it doesnot contain something
which in the opinion of court could have been a better option. It must be shown to be
manifestly unjust, capricious, inequitable or partial in operation.42

36
Supra note 34.
37
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
38
AIR 1952 All 843.
39
Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570.
40
Ibid, AIR 1983 SC P.803.
41
(1985) 1 SCC 641
42
Maharashtra State Board of Secondary and Higher Secondary Education v. Parotosh Bhupeshkumar Seth,
(1984) 2 SCC 1.

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iv) Delegated legislation shall not be arbitrary or suffer from arbitrariness.43 This is
necessary to protect the “rule of law”.
v) Delegated legislation made with malfides or improper motives are held illegal;44
the opinion of supreme court is not consistent on the point and there is cleavage of
opinion45. But in Sarbananda Sonowal(II) v. Union of India46 the court has held the
act of Central Government of issuing orders so as to nullify the order of court given in
the case of Sarvananda Sonowal47, as a cover-up to non-implementation of order and
opined that the actions were not bona fide. It has also been held that “the court can
tear the veil to decide the real nature if the facts and circumstances warrants such a
course”48.
vi) Forbidding sub-delegation and the powers being delegated49 or delegatee
exceeding the powers50 are equally held void;
vii) ‘Retrospective effect’ clauses giving effect to the law51 or rules with retrospective
effect.52 Such clauses not only reverses the reasonable anticipation of the people and
may also deprive people of their accrued rights;53 It is well settled that delegated
legislation cannot have any retrospective effect unless such a power is conferred by
the enabling act.54 There is no doubt that unlike legislation made by a sovereign
legislature, subordinate legislation made by a delegate cannot have a retrospective
effect unless the rule making power in the concerned statute expressly or by necessary
implication confers powers in this behalf55.
viii) Exclusion Of Judicial Review; Finality clauses in Statutes or rules made thereunder,
exclusive evidence clauses56 or ‘as if enacted clauses’57 were also reviewed on the
basis of their compliance with the principles of natural justice and also in the light of

43
Supra note 41.
44
D.C.Wadhwa V.. State of Bihar, AIR 1991 Sc P.526. Issuing large number of ordinances was viewed as
‘colorable exercise of powers by the executive’, disapproved by the apex court.
45
Supra note 9, at page no. 134
46
(2007) 1 SCC 174; see also, S.P. Mittal v. Union of India, (1983) 1 SCC 51.
47
(2005) 5 SCC 665.
48
Indira Sawhney v. Union of India, AIR 2000 SC 498;
see also Keshavanand Bharati v. State of kerela, AIR 1973 SC 1461.
49
Ajaile Singh V.. Gurubachan Singh AIR 1965 SC P.1619.
50
Radhakrishnan Laxminarayan V.. State AIR 1952 Nag P.387.
51
Art 20(1) of the Constitution.
52
B.S.Yadav’s Vase (1981) SCC (L&S) P.343.
53
See A.V.Nachane’s case AIR 1982 SC P.1126.
54
Supra note 9, at page no. 146
55
State of M.P. v. Tikamdas, AIR 1975 SC 1429, 1431.
56
Union of India V.. Tarachand Gupta, AIR 1971 SC P.1558.
57
Chief Inspector of Mines V.. Karam Chand thaper AIR 1961 SC P.838.

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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 legislation58.

PROCEDURAL ULTRA-VIRES
When a delegated legislation fails to comply with procedural requirements prescribed by the
parent act or by a general law, it is known as procedural Ultra-vires59.
Failure to observe the procedural requirements does not always invalidate the rules. This is
because there is a distinction between mandatory and directory requirements. ”It is well
settled that an absolute enactment must be obeyed exactly, but it is sufficient if a directory
enactment be obeyed or fulfilled substantially”60
The two procedural requirements may now be discussed:
 Publication
As “ignorance of law is no excuse”, it becomes important that the public must have access to
the law and they should get opportunity to know the law.
“It is essential, therefore, that adequate means are adopted to publicise delegated legislation
so that people are not caught on the wrong foot in ignorance of the rules applicable to them in
a given situation. The system should be such that delegated legislation is not only made
known to people, but it is also easy to locate as and when necessary.”61
In the case of Harla v. State of Rajasthan62, the legislation passed by the council was not
published nor it was made known to the general Public. The court held that, publication is
necessary and if not publicized it can nevertheless effect the lives, liberty and property of
people.63 It has also been held in a case that a notification can be said to have been published
only when it is known to people at large.64
The same law is applied in US and UK.
 Consultation
One of the techniques adopted by the courts to control exercise of power by executive against
abuse of power is the process of consultation with affected interests before the delegated

58
Id. at 845.
59
Supra note 9, at page no. 152.
60
Raza Buland Sugar Co. v. Municipal Board, Rampur, 1965 AIR 895.
61
Jain & Jain, Principles of Administrative law, Vol. I (2007) 190.
62
AIR 1951 SC 467.
63
Id. at 468
64
CCE v. New Tobacco Co., AIR 1998 SC 668.

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legislation is prepared. “Consultation” means a conference of 2 or more persons, it is a

process which requires meeting of minds between the parties65
As Wade and Philip remark on object of Consultation: “one way of avoiding a clash between
department exercising legislative powers and the interests most likely to be affected is to
provide for some form of consultation”66
In India though there is no general statutory provision for consultation, but the statutes may
provide for:
(a) Official consultation: for eg. Central government is required u/s 52 of Banking
Companies act, 1949 to make rules with consultation of RBI.
(b) Consultation with statutory bodies: for eg., Central government is empowered to make
rules u/s 6 & 12 of Drugs Act, 1940 after consultation with drug Advisory board.
(c) Consultation with advisory bodies: for eg., Mining boards are constituted under Mines
Act to assist and advice the government in making rules.
(d) Draft rules by affected interests: for eg., u/s 61 of Mines act, the owner of mines have to
submit to the Inspector of Mines a draft of bye-laws for prevention of accidents, safety,
convenience and discipline of those employed in mines, which is to be further approved
by the central government.

Nullity of the made rules depends upon the mandatory of directory nature of the provison of
consultation. In T.B. Ibrahim v. RTA67, not taking consultation of municipality by the
transport authority was held valid by the Supreme court as the provision was directory. On
the other hand, in Banwarilal Agrawalla v. State of Bihar68, Supreme court held the
consultation of Mining board by Central government u/s 59 of the Indian Mining act, to be
mandatory.
M.P. Jain69 rightly observes: “The consultation process can be a statutory safeguard against
improper use of power of delegated legislation as it infuses democratic norms in bureaucratic
legislation”.

65
Union of India v. S. H. Seth, (1977) 4 SCC 193.
66
Supra note 9, at page no. 162
67
AIR 1952 SC 79.
68
AIR 1961 SC 849.
69
Supra note 4, at page no. 207.

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CONCLUSION

Delegated or subordinate legislation means rules of law made under the authority of
an act of parliament. Although law making is the function of legislature, it may, by a statute,
delegate its power to other bodies or persons. The statute which delegates such power is
known as enabling act. By enabling act the legislature, lays down the broad guidelines and
detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the
Indian constitution. It exists in form of bye rules, regulations, orders, bye laws etc. There are
many factors responsible for its increase: parliament and state legislature are too busy to deal
with the increasing mass of legislations, which are necessary to regulate daily affairs. Modern
legislation requires technicality and expertise knowledge of problems of various fields, our
legislators, who are politicians are not expected to have such knowledge. Subordinate
legislations are more flexible, quickly and easily amendable and revocable than ordinary
legislation, in case of failure or defect in its application. When contingencies arise which
were not forceable at the time of making it, subordinate legislation can pass an act quickly to
handle them. 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. These are the main factors, besides many others, for the fast increase in delegated
legislation today.
Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes
beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground. It is a mechanism to curb
down the exploitation of power by the administrative authority as we all know that “power
corrupts and absolute power corrupts absolutely". However in this field as there is lack in
development of law, and the field of law is also comparatively new, it can’t be said to be all
as the courts may come up with new interpretations in new times.

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REFERENCES

Acts/Statutes

1. Constitution Of India, 1950

Books

1. JAIN and JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, SEVENTH EDITION

(2013 REPRINT), LEXIS NEXIS BUTTERWORTH WADHWA, NAGPUR
2. MASSEY, I.P., ADMINSITRATIVE LAW, EIGHTH EDITION (2015 REPRINT),
EASTERN BOOK COMPANY
3. TAKWANI, C.K., LECTURES ON ADMINISTRATIVE LAW, FIFTH EDITION
(2014 REPRINT), EASTERN BOOK COMPANY

Web References

1. Cooley, The General Principles Of Constitutional Law In The United States Of

America., Section XVI, available at http://www.constitution.org/cmt/tmc/pcl.htm
accessed on 24/09/2016

2. Sir Cecil Carr, Delegated Legislation: Three Lectures, pg 4. Available at

https://archive.org/stream/delegatedlegisla00carr/delegatedlegisla00carr_djvu.txt
accessed on 24/09/2016

3. Dr. Ketan Govekar, Delegated Legislation in India, available at

http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-LT-2-Ketan.pdf
accessed on 23/09/2016

Cases Referred
1. A.K. Roy. v. UOI, AIR 1982 SC 710

2. A.V.Nachane’s case AIR 1982 SC P.1126.

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3. Ahemdabad Urban Development Authority v. Sharad Kumar Jayanti Kumar

Pasawalla, AIR 1992 SC 1393.

4. Ajaile Singh V.. Gurubachan Singh AIR 1965 SC P.1619.

5. Avinder Singh v. State of Punjab, AIR 1979 SC 321.

6. B.S.Yadav’s Case (1981) SCC (L&S) P.343.

7. Banwarilal Agrawalla v. State of Bihar, AIR 1961 SC 849.

8. Bhatnagar & Co. v. Union of India, AIR 1957 SC 478.

9. CCE v. New Tobacco Co., AIR 1998 SC 668.

10. Chandra Bhan’s case, AIR 1983 SC P.803.

11. Chief Inspector of Mines V.. Karam Chand thaper AIR 1961 SC P.838.

12. Clarence v. Great N. of England Rly., (1845) 13 M and W 706 (721)

13. D.C.Wadhwa V.. State of Bihar, AIR 1991 Sc P.526.

14. Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC
570.

15. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. V.. The Asstt. Commissioner of Sales Tax &
Ors, 1974 AIR 1660

16. Harishankar Bagla v. The State of Madhya Pradesh, 1954 AIR 465

17. Harla v. State of Rajasthan, AIR 1951 SC 467.

18. In re, Article 143, Constitution of India, AIR 1951 SC 332.

19. In The Matter Of Cauvery Water ... v. Date Of Judgment22/11/1991 on 22 November,

1991: Equivalent citations: 1992 AIR 522, 1991 SCR Supl. (2) 497 .

20. India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326.

21. Indian Express Newspaper V.. Union of India, AIR 1985 SC P.525.

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22. Indira Sawhney v. Union of India, AIR 2000 SC 498;

23. Jhatindra Nath Gupta V.. Province of Bihar, AIR 1949 FC 175

24. Keshavanand Bharati v. State of kerela, AIR 1973 SC 1461.

25. Maharashtra State Board of Secondary and Higher Secondary Education v. Parotosh
Bhupeshkumar Seth, (1984) 2 SCC 1.

26. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

27. Narendra Kumar v. UoI, AIR 1960 SC 430.

28. National Broadcasting Co. v. United States, 87 L Ed 1344: 319 US 190 (1943).

29. Panama Refining Co. v. Ryan, 79 L Ed 446:293 US 388 (1934).

30. Prag Ice & Oil mills v. UoI, 1978 AIR 1296.

31. R.V.. Burah (1878) 3 AC 889

32. Radhakrishnan Laxminarayan V.. State AIR 1952 Nag P.387.

33. Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.

34. Ram Prasad v. State, AIR 1952 All 843.

35. Raza Buland Sugar Co. v. Municipal Board, Rampur, 1965 AIR 895.

36. S.P. Mittal v. Union of India, (1983) 1 SCC 51.

37. Sarbananda Sonowal v. Union of India (2005) 5 SCC 665.

38. Sarbananda Sonowal(II) v. Union of India (2007) 1 SCC 174;

39. Schechter Poultry Corp. v. United States, 79 L Ed 1570: 295 US 495 (1935).

40. State of Kerela v. K.M.C. Abdulla & Co.AIR 1965 SC 1985.

41. State of kerela v. Unni, (2007) 2 SCC 365.

42. State of M.P. v. Tikamdas, AIR 1975 SC 1429, 1431.

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43. T.B. Ibrahim v. RTA, AIR 1952 SC 79.

44. The Delhi Laws Act case, AIR 1951 SC 332

45. Union of India v. S. H. Seth, (1977) 4 SCC 193.

46. Union of India V.. Tarachand Gupta, AIR 1971 SC P.1558.

47. Vasant lal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4

48. Yakus v. United States 88 L Ed 834: 321 US 414 (1944).

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