AMITY UNIVERSITY

AMITY LAW SCHOOL

Assignment of ADMINISTRATIVE LAW

On
Delegation Legislation

Submitted to: Mr. ASHUTOSH SHUKLA

Submitted by: Vipin Jaiswal
Enrollment No.: A8111114078
B.A. LL.B, Sec-B
SEMESTER - IV
 ACKNOWLEDGEMENT

It is indeed a proud privilege to express my deep sense of gratitude to my respected

teacher and guide Mrs.Pooja Kaushik for his valuable guidance, scholarly inspiration,

which he have extended me for the successfully completion of this endeavor. His

effort can be only better expressed by coming up to his expectations.

I have thoroughly study on the topic of BHOPAL GAS TRAGEDY

 CONTENT

 Introduction
 Why delegated legislation becomes inevitable
 Nature and Scope of delegated legislation
 Types of delegation of legislative power in India
 Modes of control over delegated legislation
 Procedural;
 Parliamentary; and
 Judicial control
 Conclusion
 Bibliography
 Introduction

One of the most significant developments of the present century is the growth in the
legislative powers of the executives. The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very important
place in the study of the administrative law. We know that there is no such general power
granted to the executive to make law it only supplements the law under the authority of
legislature. This type of activity namely, the power to supplement legislation been described
as delegated legislation or subordinate legislation.

Why delegated legislation becomes inevitable

The reasons as to why the Parliament alone cannot perform the jobs of legislation in this
changed context are not far to seek. Apart from other considerations the inability of the
Parliament to supply the necessary quantity and quality legislation to the society may be
attributed to the following reasons:
 Certain emergency situations may arise which necessitate special measures. In such
cases speedy and appropriate action is required. The Parliament cannot act quickly
because of its political nature and because of the time required by the Parliament to
enact the law.
 The bulk of the business of the Parliament has increased and it has no time for the
consideration of complicated and technical matters. The Parliament cannot provide
the society with the requisite quality and quantity of legislation because of lack of
time. Most of the time of the Parliament is devoted to political matters, matters of
policy and particularly foreign affairs.
 Certain matters covered by delegated legislation are of a technical nature which
require handling by experts. In such cases it is inevitable that powers to deal with such
matters is given to the appropriate administrative agencies to be exercised according
to the requirements of the subject matter.
“Parliaments” cannot obviously provide for such matters as the members are at best
politicians and not experts in various spheres of life.
 1. Parliament while deciding upon a certain course of action cannot foresee the
difficulties, which may be encountered in its
execution. Accordingly various statutes contain a ‘removal of difficulty clause’ empowering
the administration to remove such difficulties by exercising the powers of making rules and
regulations. These clauses are always so worded that very wide powers are given to the
administration.

1. The practice of delegated legislation introduces flexibility in the law. The rules and
regulations, if found to be defective, can be modified quickly. Experiments can be
made and experience can be profitability utilized.
However the attitude of the jurists towards delegated legislation has not been unanimous. The
practice of delegated legislation was considered a factor, which promoted centralization.
Delegated Legislation was considered a danger to the liberties of the people and a devise to
place despotic powers in few hands. It was said that delegated legislation preserved the
outward show of representative institutions while placing arbitrary and irresponsible power in
new hands. But the tide of delegated legislation was high and these protests remained futile.

Nature and Scope of delegated legislation

Delegated legislation means legislation by authorities other than the Legislature, the former
acting on express delegated authority and power from the later.
Delegation is considered to be a sound basis for administrative efficiency and it does not by
itself amount to abdication of power if restored to within proper limits. The delegation should
not, in any case, be unguided and uncontrolled.

Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects
which is to be exercised by them. It is only a nonessential legislative function that can be
delegated and the moot point always lies in the line of demarcation between the essential and
nonessential legislative functions.

The essential legislative functions consist in making a law. It is to the legislature to formulate
the legislative policy and delegate the formulation of details in implementing that policy.
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make notifications and
alterations in an Act while extending it and to effect amendments or repeals in the existing
laws is subject to the condition precedent that essential legislative functions cannot be
delegated authority cannot be precisely defined and each case has to be considered in its
setting.

In order to avoid the dangers, the scope of delegation is strictly circumscribed by the
Legislature by providing for adequate safeguards, controls and appeals against the executive
orders and decisions.

While commenting on indispensability of delegated legislation JusticeKrishnaIyer has rightly

observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that the
complexities of modern administration are so bafflingly intricate and bristle with details,
urgencies, difficulties and need for flexibility that our massive legislature may not get off to a
start if they must directly and comprehensively handle legislative business in their plentitude,
proliferation and particularization Delegation of some part of legislative power becomes a
compulsive necessity for viability.

Types of delegation of legislative power in India

There are various types of delegation of legislative power.

1. Skeleton delegation In this type of delegation of legislative power, the enabling
statutes set out broad principles and empowers the executive authority to make rules for
carrying out the purposes of the Act.
A typical example of this kind is the Mines and Minerals (Regulation and Development) Act,
1948.

2. Machinery type This is the most common type of delegation of legislative power, in
which the Act is supplemented by machinery provisions, that is, the power is conferred
on the concerned department of the Government to prescribe –
1. The kind of forms
2. The method of publication
3. The manner of making returns, and
4. Such other administrative details
In the case of this normal type of delegated legislation, the limits of the delegated power are
clearly defined in the enabling statute and they do not include such exceptional powers as the
power to legislate on matters of principle or to impose taxation or to amend an act of
legislature. The exceptional type covers cases where –

1. The powers mentioned above are given , or

2. The power given is so vast that its limits are almost impossible of definition, or
3. while limits are imposed, the control of the courts is ousted. Such type of delegation is
commonly known as the Henry VIII Clause.
An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the
Provincial Government was authorized to extend, with restrictions and modifications as it
thought fit any enactment in force in any part of India to the Province of Delhi. This is the
most extreme type of delegation, which was impugned in the Supreme Court in the Delhi
Laws Act case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if
the administrative authorities materially interfered with the policy of the Act, by the powers
of amendment or restriction but the delegation was valid if it did not effect any essential
change in the body or the policy of the Act.

Modes of control over delegated legislation

The practice of conferring legislative powers upon administrative authorities though
beneficial and necessary is also dangerous because of the possibility of abuse of powers and
other attendant evils. There is consensus of opinion that proper precautions must be taken for
ensuring proper exercise of such powers. Wider discretion is most likely to result in
arbitrariness. The exercise of delegated legislative powers must be properly circumscribed
and vigilantly scrutinized by the Court and Legislature is not by itself enough to ensure the
advantage of the practice or to avoid the danger of its misuse. For the reason, there are certain
other methods of control emerging in this field.
The control of delegated legislation may be one or more of the following types: –

 Procedural;
 Parliamentary; and
 Judicial control

Procedural Control Over Delegated Legislation

A. Prior consultation of interests likely to be affected by proposed delegated
Legislation From the citizen’s post of view the must beneficial safeguard against the dangers
of the misuse of delegated Legislation is the development of a procedure to be followed by
the delegates while formulating rules and regulations. In England as in America the
Legislature while delegating powers abstains from laying down elaborate procedure to be
followed by the delegates. But certain acts do however provide for the consultation of
interested bodies. andsometimes of certain Advisory Committees which must be consulted
before the formulation and application of rules and regulations. This method has largely been
developed by the administration independent of statute or requirements. The object is to
ensure the participation of affected interests so as to avoid various possible hardships. The
method of consultation has the dual merits of providing as opportunity to the affected
interests to present their own case and to enable the administration to have a first-hand idea of
the problems and conditions of the field in which delegated legislation is being contemplated.
(B) Prior publicity of proposed rules and regulations Another method is antecedent
publicity of statutory rules to inform those likely to be affected by the proposed rules and
regulations so as to enable them to make representation for consideration of the rule-making
authority. The rules ofPublication Act, 1893, S.I. provided for the use of this method. The
Act provided that notice of proposed ‘statutory rules’ is given and the representations of
suggestions by interested bodies be considered and acted upon if proper. But the Statutory
Instruments Act, 1946 omitted this practice in spite of the omission, the Committee on
Ministers Powers 1932, emphasized the advantages of such a practice.
Publication of Delegated Legislation – Adequate publicity of delegated legislation is
absolutely necessary to ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come as a surprise and should
not consequently bring hardships which would naturally result from such practice. If the law
is not known a person cannot regulate his affiars to avoid a conflict with them and to avoid
losses. The importance of these laws is realised in all countries and legislative enactments
provide for adequate publicity.

Provisions in the parent statute for consulting the interested parties likely to be affected may,
in such cases, avoid all these inconveniences, and the Railway authorities may not act such a
rule after they consult these interests. A simple provision regarding consultation thus assumes
importance.
 Judicial control over delegated legislature

Judicial control over delegated legislature can be exercised at the following two levels:-

1. Delegation may be challenged as unconstitutional; or

2. That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being unconstitutional, excessive or
arbitrary.

The scope of permissible delegation is fairly wide. Within the wide limits, delegation is
sustained it does not otherwise; infringe the provisions of the Constitution. The limitations
imposed by the application of the rule of ultra vires are quite clear.

If the Act of the Legislature under which power is delegated, is ultra vires, the power of the
legislature in the delegation can never be good.

No delegated legislation can be inconsistent with the provisions of the Fundamental Rights. If
the Act violates any Fundamental Rights the rules, regulations and bye-laws framed there
under cannot be better.

Where the Act is good, still the rules and regulations may contravene any Fundamental Right
and have to be struck down.

Besides the constitutional attack, the delegated legislation may also be challenged as being
ultra vires the powers of the administrative body framing the rules and regulations. The
validity of the rules may be assailed as the stage in two ways:—

(i) That they run counter to the provisions of the Act; and

(ii) That they have been made in excess of the authority delegated by the Legislature.

The method under these sub-heads for the application of the rule of ultra vires is described as
the method of substantive ultra vires.

Here the substance of rules and regulations is gone into and not the procedural requirements
of the rule marking that may be prescribed in the statute. The latter is looked into under the
procedural ultra vires rule.
When the Court applies the method of substantive ultra vires rule, it examines the contents of
the rules and regulations without probing into the policy and wisdom of the subject matter. It
merely sees if the rules and regulations in their pith and substance are within the import of the
language and policy of the statute.

The rules obviously cannot go against the intent of statute and cannot be inconsistent with the
provisions of the Act. They are framed for giving effect to the provisions of this Act and not
for nullifying their effect and they should not be in excess of the authority delegated to the
rulemaking body.

Delegated legislation should not be characterised with an excessive exercise of discretion by

the authority. The rules cannot be attacked to the general plea of unreasonableness like the
bye-laws framed by a local body. Reasonableness of the rules can be examined only when it
is necessary to do so for purpose of Articles 14 and 19 of the Constitution.

The rule of procedural ultra vires provides with a very limited method of judicial control of
delegated legislation

Often there are specific saving clauses barring the jurisdiction of the courts to question the
validity of rules and orders. For example, Section 16 of the Defence of India Act, 1939 lay
down as follows:

16 Saving as to orders-

(1) No order made in exercise of any power conferred by or under this Act shall be called in
question in any Court.

(2) Where an order purports to have been made and signed by any power conferred by or
under this Act, a Court shall, within the meaning of Indian Evidence Act, 1872, presume that
such order was so made by that authority.”

Such provisions can only be justified—

(i) On the basis of special circumstances of emergency legislation, and

(ii) On the plea of State necessity.

Kruse. v. Johnon-
It was laid down that a bye-law would be unreasonable if it is found to be (i) partial or
unequal i.e. its operation as between different classes; (ii) manifestly unjust: (iii) disclosing
bad faith; and (iv) involving such oppressive or gratuitous interference with the right of the
people that it could find no justification in the minds of reasonable men.

Chintaman Rao’s Case:

Article 13 has a specific impact upon the validity of all the rules and bye-laws. In Chintaman
Rao’s case the notification of a Deputy Commissioner prohibiting the manufacture of bee
dies during the agriculture season was invalidated on the ground of its violating Article 19 (1)
(g).

Chadran v. R. (1952)

A rule or bye-law must be within the power entrusted to the legislature. For example an Act
of the U.P. State was devised to control the transport of goods and passengers by ferries and
authorised the Commissioner to make rules for the safety of the passengers and property. But
actually the Commissioner forbade the establishment of private ferries within a distance of
two miles from another ferry. That rule was struck down.

Parliamentary control over delegated legislation

Delegated legislation is often described as that which proceeds from any authority other than
the sovereign power and is, therefore, dependent for its continued existence and validity on
some superior or supreme authority. This dependence can often take the form of checks and
controls, namely, parliamentary or legislative control; procedural control and judicial control.

Delegated legislation is often criticized as an excuse for the legislators, a shield for the
administrators and a provocation for the Constitutional purists. However, the very mechanism
of delegated legislation cannot and should not be reduced to an evil because it is at the end of
the day a necessity. In the modern world where social, economic, technological, and
administrative speed outstrips the placid traditional legislative processes, delegated
legislation is an essential means of survival. Thus, since it is the legislature which delegates
power, it is primarily for it to supervise and control the exercise of this power, and ensure
against its objectionable, abusive & unwarranted use.

Direct General Control

The first form of parliamentary control is exercised at the time of passing the enabling act.
This is the proceedings in the Parliament which are in the nature of general and direct control.

In India, various methods and mechanisms are used such as debates on the delegating bill
which include aspects such as the necessity, extent, type of delegation and the authority to
whom power is delegated. Further, any member may ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under Rule
59 of the Procedure and Conduct of Business in Lok Sabha Rules.

Budget cuts during a vote of grant and discussions on delegation through a private members’
Bill seeking modifications in the parent act or through a debate at the time of discussion on
the address by the President to the joint session of Parliament are also useful.

However, in India as in the U.K. these methods are rarely used. This is purely because of lack
of convention or practice. Scholars however believe that this method should be used
extensively and effectively so as to nip the vices of delegation in the bud.

Direct Special Control

Concern for popular control of increasingly extensive administrative activities has brought
forth various proposals by which congressional supervision can be maintained. Prominent
among these remedies is the device of “laying on the table”, which requires that
administrative “legislation” made under delegated authority be presented to the legislature for
approval.

“Laying” may take various forms such as laying with no further direction wherein the
purpose is to simply inform the House. Laying subject to negative resolution implies the
coming into force of the rules with the exception that it shall cease to have effect if the House
annuls it. Another form is laying subject to affirmative resolution where the rules need
approval for coming into effect or else they cease to be in operation until such resolution. The
process of laying in draft subject to negative resolution means that within 40 days of laying,
the rules will come into force unless disapproved and laying in draft subject to an affirmative
resolution is coupled with the power of modification and then approval.

In America, even though the concept of strict separation of powers makes parliamentary
control rather invisible, Reorganization Acts of 1939 to 1945 provided that the Presidential
organizational plans were not to have any effect for a specified period during which they
could be annulled by any Congress through a concurrent resolution of both the Houses. In six
states, namely, Connecticut, Kansas, Michigan, Nebraska, Virginia and Wisconsin,
provisions exist for laying the rules before the legislative houses.

In England, on the other hand, this requirement of laying is used effectively & extensively.
The Statutory Instruments Act, 1946 clearly lays down uniform provisions such as deferring
the legislation until approval of House; coming into effect of legislation subject to
disapproval by House; sending notification to Lord Chancellor and Speaker of House of
Commons incase such provisions cannot be maintained.

It is also important to assess the legal consequences of non-compliance with laying

provisions. In England Section 4(2) of the Statutory Instruments Act, 1946 makes laying
provisions mandatory and hence, any violation would lead to nullity of the legislation or
rendering the rule void.

However, in India, the dichotomy remains as the courts judge if they are mandatory or
directory and then proceed to judge the legal consequences. A careful analysis of few cases
will show the confusion inherent.

In the case of Narendra Kumar v Union of India, Section 3(6) of the Essential
Commodities Act, 1955 which reads as, “Every order made under this section by the Central
Government or by any officer or authority of the Central Government shall be laid before
both Houses of Parliament, as soon as may be, after it is made” was called mandatory
primarily because of the words “shall be laid”.

Even assuming that the above was not really a deviation as it was due to certain special
circumstances, the ruling in Atlas Cycle Industries v State of Haryanawas clearly a very
doubtful.

In Atlas Cycle Industries case, the same provision of the Essential Commodities Act, 1955
was under consideration as in the Narendra Kumar case. The Court gave a surprisingly
different verdict when it left the tool of literary interpretation to lay down different standards
in case of delegated legislations. It held that, “Two considerations for regarding a provision
directory are (i) Absence of any provision for the contingency of a particular provision not
been complied with and (ii) Serious general inconvenience and prejudice to the general
public, if rules are declared invalid. On applying these two principles to the facts in hand, it
held that Section 3(6) does not stipulate negative or affirmative resolution by either Houses.
It is not subject to the approval or disapproval of Parliament. Further, the section does not
stipulate any period of time or a penalty for non-observance. Hence, simple use of the words
“must” or “shall” do not determine the nature of the laying provisions.

It is therefore seen that lack of a uniform and general law has lead to very ambiguous
interpretations which do not give any clear direction as to the position of law.

Indirect Control

This form of control is exercised by the Parliament through its Committees. In 1950, the then
Law Minister made a suggestion that Indian Parliament should also have a Committee on the
lines of those present in England. Pursuant to this, The Committee on Subordinate
Legislation of Lok Sabha was appointed on December 1, which comprised 15 members
nominated by the Speaker for one year. The Chairman is appointed by the Speaker from
amongst its members. A similar Committee was established in the Rajya Sabha in 1964. In
England, it is a rather healthy tradition to appoint the Leader of Opposition as Chairman.

The main functions are to examine whether rules comply with the general object of the Act
and the Constitution; whether the Act is better equipped to deal with matters delegated in the
rules; does the delegated authority deal with imposition of tax.
 Conclusion
A careful analysis of Indian parliamentary control over delegated legislation will show that
it is very weak and undeveloped or rather under-utilized. Reasons for this include lack of
legal skills with parliamentarians; lackadaisical attitude of ruling parties; too much
dependence on courts for any problem.

Generally speaking, any ground on which judicial review may be justified can logically be
classifiedas a branch of ultra vires doctrine; here we have dealt with straight forward cases
where ultra vires was the solitary or principal justification for judicial review.

On the whole, judicial review of delegated legislation is more of symbolic value rather than
of muchpractical value as a control mechanism over delegated legislation. To make judicial
control moreefficacious it is necessary that delegating legislation does not confer power in
two broad andgeneralized language. In such a case the Court may find extremely difficult to
hold a rule as fallingoutside the scope of power delegated. This is what is envisaged by the
doctrine of excessive delegation.In that case, delegated legislation will be ultra vires if it goes
beyond basic policy underlying theParent Act passed by the legislature
 Bibliography
http://www.lawkgteacher.net/free-law-essays/constitutional-law/parliamentary-control-of-
administrative-rule-making-constitutional-law-essay.php#ixzz45G2pziCs

https://www.cshvjdh.com/doc/71912750/Delegated-Legislation

http://upsc.ourleducation.in/delegated-legislation/