RESEARCH PROJECT

“CONSTITUTIONAL VALIDITY OF DELEGATED

ADMINISTRATIVE LAW – 1ST INTERNAL

Guided by-
 Dr. Atmaram Shelke
 Prof. Pallavi Mishra
Submitted by-
Jaskeerat Singh Johar
rd
3 Year BBA.LLB (Hons.)
PRN- 15010126330
Division – D
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INDEX

CONTENTS
PAGINATIONS

Chapter-1 3-4
PRELIMINARY
1.1 Delegated Legislation: An Introduction 3

Chapter-2 5-6
PRE-CONSTITUTION ERA

Chapter-3 6-10
POST-CONSTITUTION ERA
3.1 In Re Delhi Laws Act Case 1950 6
3.2 Different Opinions from the Bench 7
3.3 Overview on the Gwalior Rayon Silk Manufacturing...... Case
8

Chapter-4 10
CONCLUSION

BIBLIOGRAPHY 11

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1. PRELIMINARY

1.1 Delegated Legislation: An Introduction

A trend very much in vogue at the present time in all democratic countries is that only a
relatively small part of the total legislative output emanates directly from the Legislature. The
bulk of the legislation is promulgated by the Executive as a delegate of the Legislature, and this
is known as "delegated legislation". Salmond defines the expression 'Delegated legislation' as
"that which proceeds from any authority other than sovereign power and is therefore dependent
for its continued existence and validity on some superior or supreme authority". 1 Usually, what
happens is that the Legislature enacts a law covering only the general principles and policies
relating to the subject matter in question, and confers rule-making power on the Government, or
on some other administrative agency. The delegation of legislative power is permissible only
when the legislative policy is adequately laid down and the delegate is empowered to carry out
the policy within the guidelines laid down by the legislature. 2 This technique of delegated
legislation is so extensively resorted to in modern administrative process that there is no statute
enacted by the Legislature today which does not delegate some power of legislation to the
Executive. Delegated legislation is so innumerable that the statute book will not only be
incomplete but even misleading unless be read along with the delegated legislation which
amplifies and supplements it.3 In no democratic country does the Legislature monopolize the
whole of the legislative power; it shares this power with the Government and other
administrative agencies. It is now well-established proposition of law that the power of
delegation is a constituent element of legislative power as a whole and that in modern times
legislature enacts laws to meet the challenge of socio-economic problems. The Legislature often
finds it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their
choice for carrying out policy laid down in the Act.4

The term "delegated legislation" is used in two different senses:

(a) the exercise by a subordinate agency of the legislative power delegated to it

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(b) the subsidiary rules themselves which made by the subordinate agency in pursuance of
the power as mentioned in (a).

As administrative lawyers, we are more interested in the "technique", rather than the actual rules
made and so the term "delegated legislation" is used here primarily in the first sense.

In India, quite often the term employed is "subordinate legislation". This term conveys the idea
that the authority making the legislation is subordinate to the Legislature. The technique of
delegated legislation is very extensively used in India. Two illustrations will suffice.

(i) The Imports and Exports (Control) Act, 1947 is a small piece of legislation containing
eight sections. S. 3 authorizes the Central Government to prohibit or restrict the
import or export of goods of any specified description by Order. Under this provision
the Central Government has built up a vast mechanism of control over imports and
exports through delegated legislation promulgated under the statute.
(ii) Under the Essential Commodities Act, 1955, the Central and State Governments have
promulgated a large number of orders and rules. The Act in itself is a small piece of
legislation containing only 16 sections, but under it the Government carries on the
whole operation of controlling and regulating production, movement, supply, sale,
prices of a number of commodities characterized as "essential commodities". 5

Delegated legislation (in the second sense mentioned above) is designated by several names,
such as, rules, regulations, bye-laws, orders etc., through the term "rules" is more commonly
employed. The terms "regulations' and "bye-laws" are usually used to denote the legislation
framed by statutory corporations under delegated legislative power. Generally, in respect of these
corporations there are two levels of delegated legislation: The Government itself has power to
promulgate “rules” and accordingly, to distinguish the government-made “rules” from what the
corporation itself may make, a different terminology (regulations) is used for the later.

2. PRE-CONSTITUTION ERA

5
Jain, Cases On Administrative Law, I, 1

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A horde of decisions by Privy Council and Supreme Court has laid emphasis on the concept on
delegated legislation. The Privy Council in the pre-constitution era used to be the highest court of
appeal for any Indian decision. In Queen v. Burah6, the question of constitutionality of delegated
legislation came for the first time in front of Privy Council. The act in question gave widespread
powers to the Lieutenant Governor. The main issue was the power given to Lieutenant Governor
to bring the Act in effect, determine the applicability of the laws and the power to extend the use
of act.7 The Act was passed to remove Garo hills from the jurisdiction of civil and criminal
courts and encompass all or any provisions of the Act in Khasi, Jaintia and Naga Hills in Garo
Hills.8 The main question before the court was whether giving the Lieutenant Governor authority
to extend the application of the law is delegation of power? Privy Council held that Indian
legislature is not an agent or delegate as against Calcutta High Court but was envisioned to have
plenary powers of legislation, and of the same nature of the parliament itself. It was held that
Indian legislature had implemented its judgment as to the place, person, law, powers and what
the governor was obligatory to do was to make it operative upon fulfilment of certain conditions.
This is called conditional legislation which was upheld by the court.

The question of acceptable limits of legislative power became important in Independent India.
Just on the eve of independence, Kania, C.J., in Jatindra Nath 9, observed that there could be no
delegated legislation in India beyond conditional legislation. It was observed that the Provincial
Government could not be permitted to increase the time for which the Bihar Maintenance of
Public Order Act 1948 was to remain. The court said this power to be non-delegable. This led to
a lack of clarity regarding the extent of delegated legislation. The question was whether the
legislature of Independent India should be delimited to the rules laid down in the
abovementioned or should the legislature be given a higher degree of freedom to determine the
extent of delegation? It was left open for the courts to follow either the model in the United
States where the extent of delegation was to austerely defined or the one in the United Kingdom
where the extent of delegation was considered an issue of policy and therefore the courts were
not obliged to interfere.10 Further, Indian constitution is silent on the point that whether
6
1878 3 AC 889 [Hereinafter “Burah”]
7
§9, Act No. XXII. of 1869.
8
Preamble, Act No. XXII. of 1869.
9
Jatindra Nath v Province of Bihar, (1949) 2 FCR 595.
10
M.P. Jain & S.N. Jain, Principles of Administrative Law (LexisNexis Butterworth’s, 6th ed., Reprint 2011), pp.
49-54.

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legislature can delegate or not and as a result such issues could not possible be decided keeping
the text of the constitution as the sole basis.

3. POST-CONSTITUTION ERA

3.1 In Re Delhi Laws Act Case 1950

In order to clear doubts regarding the validity of a number of laws which contained such
delegation of legislative power, the president of India under Article 143 of the Constitution
summoned the Supreme Court's advisory jurisdiction seeking opinion on three questions
submitted for its consideration and report. The three questions were as follows:

 Was section 7 of the Delhi Laws Act, 1912 which give provincial Government the power
to extend to Delhi area to restrict and modify any law in force in any part of British India
as ultra vires? If so, then in what particular or particulars or to what extent.
 Was the Ajmer - Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof ultra vires and in what particular or particulars or to what extent was the same
ultra vires the Legislature which passed the said Act?
 Is Section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof ultra
vires and in what particular or particulars or to what ex tent was it ultra vires the
Parliament?

The seven judges that presided over the case gave 7 different opinions for the final adjudication.
The importance of the case cannot be under estimated in as much as, on one hand it permitted
delegated legislation, while on the other, it restricted the extent of such permissible delegation of
power. The question was related to the extent to which the legislature in India can delegate its
legislative power. To arrive at these common conclusion, the Supreme Court gave 7 different
ways. There was unity of outlook on two points. Firstly, keeping the demands of modern
government in view, Parliament and state legislatures have to delegate the power in order to deal
with multiple problems prevailing in India, as it is very difficult to expect them to come with
complete and comprehensive legislation on all subjects sought to be legislated on. Secondly,
since the legislature derives its power from the Constitution, excessive freedom like in the case
of British constitution cannot be granted and limitations are required. The Hon’ble Judges
differed on the question as to what were the permissible limits within which the Indian

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legislature could delegate its legislative powers. One view advocated that the legislature can
delegate power to the extent that it does not abdicate its own power to have control over the
delegate i.e. it must retain in its hands the ultimate control over the authority so as to be able to
withdraw the delegation whenever delegate did something wrong. The second view reasoned that
the legislature cannot delegate its essential functions which comprised the formulation of policy
etc. This meant that the legislature should lay down the standards or policy in the delegating Act
and the delegate may be left with power to execute the policy.

By a majority, the Court laid down, in the instant case, that the legislature should not delegate its
essential legislative function which comprises the formulation of policies and implementing
them. According the Supreme Court. The legislature is the creature of the Constitution, the
constitution makers have placed their faith in the legislature and the constitution has bestowed
the legislative power in the elected representatives of the people. It is for the legislature to give
the delegate the power to make rules for executing the policies of the legislature.

3.2 Different opinions from the bench

According to learned Attorney General, M. C. Setalvad, the Parliament could delegate because
of the legislative power carried with it is power to delegate. This was reject by Chief Justice
Kania, Justice Mahajan and Justice Mukherjea saying that constitution had never per se justified
delegation of powers at any stage and all of them agreed on the outlook that legislature can
however, conditionally legislate. However, Justice Shastri and Justice Das, agreed to the
contention of the Attorney General and therefore differed from the majority. Their decision was
based on the theory of Parliamentary sovereignty and they observed that power to make law
comes along with the power to delegate.

The questions related to delegation of power to make modifications and alterations is answered
by most of the judges in affirmative. Only Chief Justice Kania and Justice Mahajan differed.
They said that only the legislature has the authority to change and alter the law in any substantive
sense. Justice Mukherjee held that change does not mean change of policy but it is confined to
alterations which helps to keep the policy intact and introduces changes appropriate to suit the
prevailing conditions. Justice Bose also was of the same opinion. In this way, the majority felt
that the executive authority could be authorized to modify the law but not in essential and
intrinsic sense.
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On the matter that whether the power to repeal a law can be delegated or not the court held that
the power to repeal a law is mainly a legislative power and delegating it is ultra vires. The
majority based its view on the maxim of unius est exclusio alterius and held that an express
provision permitting delegation contained in Article 357 would mean that unrestrained
legislation was not allowed under the constitution. Essential functions could not be delegated
under any circumstance. The minority based its opinion on the theory of legislative omnipotence
of the British Parliament, and its reflection in the Australian, the Canadian and the Indian
Constitutional systems, which include the power to delegate legislative functions, subject to the
condition of non-abdication.

3.3 Overview on the “Gwalior Rayon Silk Manufacturing (Weaving) Company Limited vs.
Asst. Commissioner of Sales Tax” 11 Case

After In Re Delhi Laws Act Case, the question which arose was related to the limits of
delegation and the grounds for such limitation. The first case which encountered this question
was Gwalior Rayon.

According to Sec. 8(2)(b) of the Central Sales Tax Act 1956, the tax payable by any dealer on
his turnover, in so far as it relates to the sale of goods the course of inter-state trade or
commerce, not falling within sub-sec. (1) in, case of goods other than declared goods, shall be
calculated at the rate of percent or at the rate applicable to the safe or purchase, of such goods
inside the appropriate state, whichever is higher. The short question which arose for
determination in this case was whether the provisions of sec. 8(2)(b) of the Central Sales Tax
Act, 1956 suffer from the vice of excessive delegation because the parliament, in not fixing
the rate itself and in adopting the rate applicable to the gate or purchase of goods inside the
appropriate State had not laid down any legislative policy and thus abdicated its legislative
function.

The Constitution bench of the Supreme Court upheld the validity of the Sec 8(2)(b). Justice
Khanna propounded the “Standard Test” which was accepted by Justice A.N. Ray and Justice
P.N. Bhagwati. On the other hand, Justice Matthew along with Justice A. Alagiriswami, in his
separate opinion, endorsed the “Abdication Test” which the majority refused to accept.

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AIR 1974 SC 1660

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 Standard Test

According to Justice Khanna the growth of the legislative power of the executive is a significant
development of the twentieth century. The theory of laissez-faire has been given a go-by and
large and comprehensive powers are being assumed by the State with a view to improve social
and economic well-being of the people. The practice of empowering the executive to make
subordinate legislation within a prescribed sphere has evolved out of practical necessity
and pragmatic needs of a modern welfare state. The most important principle related to delegated
legislation is that the legislature must lay down the guidelines principles or policy for the
authority to whom power to make subordinate legislation is entrusted. The correct position of
law thus is that an unlimited right of delegation is not 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 is in ancillary measure which the legislature considers to be
necessary for the purpose of exercising its legislative powers effectively and completely. The
legislatures must retaining its own hands the essential legislative functions which consist in
declaring the legislative policy and laying down the stand 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 laid down. The courts cannot and should not
interfere with the discretion that undoubtedly rests with the legislature itself in determining the
extent of delegation necessary in a particular case.

 Abdication Test

According to Justice Matthew delegation often involves the granting of discretionary authority to
another, but such authority is purely derivative. The ultimate power always remains in the
delegator and is never renounced. Some writers think that a legislature does not 'abdicate'
unless it withdraws from the field and surrenders its responsibility therefor and to some, there
seems to be 'abdication' whenever a legislature while remaining in the field and retaining its
responsibility therefore entrusts to others the formulation of policy, otherwise than with a
definite standard or purpose laid down by it. The crucial point is, whether the legislature
preserved its capacity intact and retained perfect control over the delegate inasmuch as it
could at any time repeal the legislation and withdraw the authority and discretion it bid vested

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on the delegate. In other words, as long as the legislature can repeal the parent act conferring
power on the delegate, the legislature does not abdicate its powers. This view was rejected by the
majority of the judges.

4. CONCLUSION

Delegation of 'law making' power is the dynamo of modem government. Delegation by the
legislature is necessary in order that the exertion of legislative power does not become a futility.
Today, while theory still affirms legislative supremacy, power floats back increasingly to the
Executive. One must not take lightly and say that there can be transfer of legislative power under
the guise of delegation which would tantamount to abdication. At the same time, one must be
aware of the practical reality that the parliament cannot go into details of all legislative matters.
The making of law is only a means to achieve a purpose. It is not an end in itself. That end can
be attained by the legislature making the law. But many topics or subjects of legislation are such
that they require expertise, technical knowledge and a degree of adaptability to changing
situations etc., which parliament might not possess and, therefore this end is better secured by
extensive delegation of legislative power. The legislative process would frequently bog down if a
legislature were required to appraise beforehand the myriad situations to which it wishes a
particular policy to be applied and to formulate specific rules for each situation.

In the end we can conclude that the delegated legislation is important in the wake of the rise in
the number of legislations and technicalities involved. But at the same time with the rise in
delegated legislation, the need to control it also arises because with the increase in the delegation
of power also increases the chance of the abuse of power. The judicial control apart from the
legislative and procedural control is the way how the delegation of power can be controlled.
Thus, the delegated legislation can be questioned on the grounds of substantive ultra vires and on
the ground of the constitutionality of the parent act and the delegated legislation. The latter can
also be challenged on the ground of its being unreasonable and arbitrary.

BIBLIOGRAPHY

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BOOKS

 M.P. Jain & S.N. Jain, Principles of Administrative Law, 6th Ed., Lexis Nexis, 2016.
 I.P. Massey, Administrative Law, 5th Ed., Eastern Book Company, 2001.
 M.C. Jain Kagzi, The Indian Administrative Law, 7 th Ed., Universal Law Publishing Co.,
2014

ARTICLES/ JOURNALS

• Aditya Thejus Krishnan, (2015). Delegated Legislation: Re Delhi Laws Act Case from
https://www.lawctopus.com/academike/delegated-legislation-re-delhi-laws-act
• Dashrath Yata, (2016). In Re Delhi Laws Act Case: Landmark In Concept Of Delegated
Legislation In India from http://manupatra.com/roundup/333/Articles/In%20re%20Delhi
%20Laws%20Act%20Case.pdf

ONLINE DATABASES
1. Manupatra (www.manupatra.com)
2. SCC Online (www.scconline.in)
3. JSTOR (www.jstor.org)
4. Lexis Nexis (www.lexisnexis.com)

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