ADMINISTRATIVE LAW

TOPIC: DELEGATED LEGISLATION

SUBMITTED TO:
DR. SHRUTI BEDI
SUBMITTED BY:
KAMINI, 27/14, SEC.-A
B.A.LL.B (Hons.)

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ACKNOWLEDGEMENT
I have been taught the subject of Administrative Law by Respected Teacher,
Dr. Shruti Bedi who helped me all through in the accomplishment of this
project. My sincerely thanks to the Respected Teacher, who helped me to
gather the various sources which I could give final shape to the topic under
study. She not only provided us a platform to compile but also guided us at
all levels.
I, also thank the members of the library staff, computer section and my
friends, for the cooperation in making available the books and accessing the
internet even during their free time.

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INDEX
Sr. No. TOPIC PAGE NO.

1 Introduction 4
2 Nature and scope of 5
Delegated legislation
3 Factors leading to growth 7
of delegated legislation
4 Classification of Delegated 9
Legislation
5 Conclusion 12
6 Bibliography 13

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1. INTRODUCTION
One of the advances in the realm of administrative process made during
these days is that apart from pure administrative function, the executive
performs legislative function as well. Due to a number of reasons, there is
rapid growth of administrative legislation.

A great deal of legislation takes place outside the Legislature i.e., in

Government Departments. There is no such general power granted to the
executive take law. It only supplements the law under the authority of the
Legislature. This type of activity, namely, the power to supplement
legislation, has been described as delegated or subordinate legislation. The
term delegated legislation may also mean the total output of laws made
by the executive as the delegate of the Legislature.

This paper concern with the nature and scope of Delegated Legislation,
factors leading to growth of Delegated Legislation and classification of
Delegated Legislation.

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2. NATURE AND SCOPE OF
DELEGATED LEGISLATION
The term delegated legislation is difficult to define. However, even if
defined, it is equally difficult to determine with certainty the scope of such
delegated legislation.

The Committee on Ministers Power1 has pointed out that the expression
delegated legislation is used in two senses. In one sense delegated
legislation means the exercise of the power of rule making, delegated to the
executive by the Legislature. In the second sense, it means the output the
exercise of that power, viz., rules, regulations, orders, ordinances, etc. the
expression is used in the first sense; where the emphasis is on the output of
concrete rules the term is employed in the second sense.

Plainly speaking, delegated legislation is legislation by the authorities other

than the Legislature. The Central Government, the State Government, and
other administrative bodies are given power to make rules for carrying out
the purposes of enacted statutes. The administrative bodies, although have
no legislative functions of their own still they exercise certain legislative
powers on behalf of and on the authority given by the Legislature in
discharge of its legislative function. They act as delegates of the legislature
and exercise only the delegated authority.

The situation today has reached a point where delegated legislation out
numbers the legislative enactments. Prof. Upendra Baxi has rightly
remarked this connection .The situation in regard to delegated
legislation, the volume of which is immensely greater than that of usual
legislation, is even more. The Indian parliament enacted from the period
1973 to 1977 a total of 302 laws; as against this total number of statutory
orders and rules passed in the same period were approximately 2544.

Justice P.B. Mukherjee very well observed in this respect:

1
A Committee appointed in England in the year 1929 to examine the growing powers of the administration
and to report on the constitutional validity of delegated legislation. It submitted its report in 1932.

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Delegated legislation is an expression which covers a multitude of
confusion. It is an excuse for the legislators, a shield for the administrators
and a provocation to the constitutional jurists

As stated in Halsburys Laws of England,2 When an instrument of a

legislative nature is made by an authority in exercise of power delegated or
conferred by legislature it is called subordinate legislation.

Generally, delegated legislation means the law made by the executive

under the powers delegated to it bye the legislature. A simple definition of
the term delegated legislation may be given as follows:

When the function of legislation is entrusted to organs other than the

legislative itself, the legislation made by such organ is called delegated
legislation.3

3. FACTORS LEADING TO THE GROWTH

OF DELEGATED LEGISLATION
In modern time there has been an enormous increase in delegated
legislation. The development is not an isolated fact, but rather a
concomitant to the increased functions of the State. Individualism which
dominated the 19th century political thought, laid emphasis on the fact that
the individual was the best judge of his own interests and that the state
should let him free in his right of free trade and business. The only
legitimate function of the state was the maintenance of law and order both
within and without the country. The position is different today. Now the
state is assuming more and more responsibilities in promoting the welfare
its citizens, supervising their health, education and employment, regulating
trade, industry and commerce, and providing a great variety of other
services. The concept of Laissez Faire State has turned into a welfare State.
All this has involved the necessity entrusting the executive with greater

2 Halsburys Laws of England, 4th Edn., Vol.44, pp.981-84.

3 Upadhya , JJR, 9th edition, 2014, page no. 68.
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powers, including that of delegated legislation. The circumstances
favouring delegated legislation as follows:

(i) Pressure of work- Parliament is too busy a body. It is

overburdened with the legislative work. Within the short span
of it has to pass a number of legislations and has to take up
such intensive legislative work that it can hardly enact the
provisions of law in details. If it devotes its time in laying down
minor and subsidiary details of every legislation by making all
the rules required under it, whole of its time would be
consumed in dealing with a few Acts only and it would not be
able to cope with the growing needs of legislation. Thus the
pressure of the work prevents legislature to provide all the
required details in an Act and compels it to delegate its
legislative powers in limited sense. In fact the rule making
power is conferred on the executive to supplement the Acts,
passed by the competent Legislatures.
(ii) Technicality- Sometimes the subject-matter of legislation is of
a technical nature and requires consultation of experts.
Members of Parliament may be best politician but they are not
experts to deal with highly technical matters which are
required to be handled by experts. In such cases the legislative
power may be delegated to experts to deal with the technical
problems. Legislation concerning atomic energy, nuclear
energy, gas, drugs or electricity may be quoted as illustration of
such technicalities.
(iii) Flexibility- In some cases, such as changes in rationing
schemes or imposition of import duty or control of exchange,
public interest requires that the provisions of law should not
made public until the time fixed for its enforcement becomes
ripe. Delegated legislation is the only means to achieve this
objective. Moreover, in the case of delegated legislation
changes take place more conveniently without delay, this is not
possible in the case of legislation by the Parliament.
(iv) Emergency- In times of emergency, quick action is required to
be taken. An emergency may rise on account of war,
insurrection, floods, epidemics, economic depression and the

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like. Legislative process is not equipped to provide for urgent
solution to meet the situation. It is, therefore, necessary that
executive must have power that may be used instantly.
Delegated legislation is the only convenient remedy4.
(v) To meet unforeseen contingencies- the need of amplifying
the main provisions of social legislation to meet unforeseen
contingencies or to facilitate adjustments to new circumstances
arises all too frequently, for which the Parliamentary process
involves delay, but delegated legislation offers rapid machinery
for amendment.
(vi) Confidential matters- In some situations public interest
demands that the law must not be known to the body till it
comes into operation. Rationing schemes or imposition of
import duty or exchange control are such matters.
(vii) Experimentation- Ordinary legislative process suffers from
the limitation of lack of viability and experimentation.
Delegated legislation enables the executive to experiment. The
method permits rapid utilisation of experience and
implementation of necessary changes in the application of the
provisions in the light of such experience. If the rules and
regulations are found to be satisfactory, they can be
implemented successfully. On the other hand if they are found
to be defective, the defects can be cured immediately.
(viii) Complexity of modern administration- Owing to the
complex structure of society, modern administration has
become complex. It is assuming more and more responsibility
in promoting the welfare of the citizens, supervising their
health, education and employment, regulating trade, industry
and commerce; and providing a great variety of other services.
In this way the complexity of modern administration and the
expansion of the functions of state of socio-economic sphere
have rendered it necessary to resort to new forms of legislation
and to give wide powers to various agencies on suitable
occasions. It is necessary that administration should be given
ample power to implement socio-economic policies so that

4 See Sukhdev Singh v. Bhagat Ram, (1975) 1 SCC 421, 434.

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immediate action can be taken. By resorting to traditional
legislative process, the entire object may be frustrated by
vested interest and the goal may not be achieved at all.

Due to these factors, delegated legislation, as a technique of

modern administration, is now regarded as useful, inevitable and
indispensable.

Criticism of the growth of Delegated Legislation

There was a time when the growth of delegated legislation was
criticised as undemocratic. It was described as an extension of the
despotic powers of bureaucracy. But, with change in time, much of the
antipathy has died down. Ideas about it have changed.

However, one must not lose sight of the fact that delegated legislation
suffers from several defects as well. Constitutional legitimation of
unlimited power of delegation to the executive by legislature may, on
occasion, be subversive to responsible government and erosive of
democratic order5.

Many a time, the legislature passes laws in skeleton from containing

only the barest of general policies and leaves everything else to the
discretion of administrative agency. Therefore, the administration
armed with law-making power threatens to overwhelm the little man by
trampling upon life, liberty and property. The executive get a blank
cheque to do whatever it likes.

The system thus becomes undemocratic giving rise to the danger that
the government may misuse its power. The result is that there is that
there is wide spread suspicion and apprehension that civil and personal
liberties which are democratic values may be endangered by an
unbridled use of the technique of delegated legislation by the
administration.

5 Avinder Singh v. State of Punjab, AIR, 1979, SC321

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4. CLASSIFICATION OF DELEGATED
LEGISLATION
It has been very rightly remarked by Prof. Wade that : the system of
delegated legislation has been built up haphazard without plan or logic
and the extent and limits of delegation have been determined by an
accident and expediency and not upon any system. It is difficult to find,
and it may be misleading to look for any clear or conscious purpose in
the historical development of the process.

It is possible to distinguish two types of delegated legislation and to say

that one of them represents the normal and other exceptional one.
Besides, these two types, a third type of delegation is known as Henry
VIII Clause. And there exists yet another type of delegation which
excludes judicial control. Thus there are following four types of
delegated legislation:

(i) Normal,
(ii) Exceptional,
(iii) Henry VIII Clause,
(iv) Delegated legislation excluding judicial review.

(4.1)Normal Delegation. - There are two types of normal

delegation:

A. Positive- where the limits are clearly defined in the Parent

Act, it is called positive delegation.
B. Negative- where the delegated power does not include
power to do certain things, it is known as negative
delegation, e.g. power to legislate on matters of policy or
power to impose tax.

(4.2)Exceptional Delegation. - There are certain exceptional

instances of delegated legislation which may be conveniently classified as
follows:

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(i) Instances of power to legislate on matters of principle and
even to impose taxation.
(ii) Instances of power to amend Act of Parliament, either the
Act by which the powers are delegated or other Acts.
(iii) Instances of powers conferring so wide a discretion on a
minister that it is almost impossible to know the limits
which the Parliament intended to impose.
(iv) Instances where the Parliament, without formally
abandoning its normal practice of limiting delegated power
has, in fact, done so by forbidding the judicial control.

Illustrations of the exceptional type of delegation:

(a) Section 156 of the Poor Laws Act, 1930, which provides that
the Minister of Health shall make such rules, orders and
regulations as he may think fit.
(b) Gold Standard Act, 1931, (treasury to make rules relating to the
exchange).
(c) Import Duties Act, 1932, treasury was authorised to vary
classes of goods chargeable and the rate of duty.

(4.3)Henry VIII Clause. - This Clause is known as Henry VIII Clause

type of the power after the name of King Henry VIII, who was regarded as
impersonation of executive autocracy. Henry VIII was the monarch of
England from 1509 to 1547 and during his regime he encountered
numerous difficulties in enforcing his will. In doing so he often acted
recklessly and much against the wishes of Parliament. The Henry VIII
Clause personifies the executive autocracy in disrespectful
commemoration of his tendency to absolutism. Under this type of
delegation the executive is given a very broad power of amending a statute.
The executive is empowered to vary or modify the provisions of an Act
itself. Some instances of delegation of Henry VIII Clause type are found in
England which is as follows:

(1) National Insurance Act of 1911- Under this Act Insurance

Commissioners were authorised to modify provisions of the
Act.

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(2) Factories Act, 1948- It also authorises to modify or extend the
provisions of the Act dealing with health or safety.

The instances of delegation of Henry VIII Clause type are also found
at times in India statutes. Sometimes Indian legislature pass an Act
where on account of uncertainty or the difficulties that may arise
under the Act they delegate to the Government the power to make
adjustments in the Act itself to meet such difficulties. We find an
example of this type of delegation under Article 392(1) of the
Constitution which authorised the President to direct by order that
the Constitution would have effect subject to such adaptations,
whether by way of modification, addition, or omission, as he might
deem necessary or expedient.

A few other examples of such a delegation are found in sections 120

and 128 of the State Reorganisation Act, 1956; in Section 43 of the
Life Insurance Corporation Act,1956; Section 32-A of Business Profits
Act, 1947.

The Committee criticised the use of Henry VIII Clause type of

delegation, for it permits the Executive to evoke the field of purely
legislative nature.

(4.4) Delegated legislation excluding judicial Review-

The fourth type of delegation by the legislature to the executive is that
where the Act empowers the Executive to makes rules and regulations, the
validity of which shall question in any court of law. Thus, such type of
delegation provides for exclusion of judicial control of the rules and
regulations made by the Executive in the capacity of delegated power.6

5. CONCLUSION
In the area of delegation of legislative power, the Courts have recognized
and applied the doctrine of excessive delegation. Delegated legislation in

6 Kesari ,U.P.D, 19th edn., pp. 80

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the changed socio-economic complexion has become a constituent element
of legislative power as a whole. Broad delegations of legislative power are
upheld where they relate to taxation, socio-economic legislation and
elected bodies. The doctrine of excessive delegation and legislative policy
are safety valve necessary for functioning of Democratic Government in
developing Countries.

6. BIBLIOGRAPHY
1) Kesari, U.P.D, Administrative law, 19th edition, revised 2014, Central
Law Publications, Allahabad.

2) Upadhya, JJR, Administrative Law, 9th edition, 2014, Central Law Agency,
Allahabad

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