The principle of delegated legislation and its control are examined in this
article. Legislative authority is transferred from the legislature to the
executive branch or other entities through a procedure known as delegation. The
establishment of laws and regulations that effectively handle particular and
technical challenges is made possible by this transfer of authority. However,
issues with the possible misuse of this authority and the absence of democratic
accountability in the process come up.
Delegated legislation must thus be
legitimate and accountable, which calls for strong control systems. In order to
evaluate the efficacy of the various kinds of control in preventing possible
abuses and preserving a balance between executive effectiveness and democratic
monitoring, this article explores the various mechanisms of control, including
parliamentary scrutiny, judicial review, and public engagement.
When the functions of legislation, is entrusted to organs other than the
legislature, then the legislation made by such organ is called 'delegated
According to Salmond, legislature is either supreme or subordinate and the
subordinated authority is dependent for its continuation and existence on the
Delegated legislation is also known as 'sub-ordinated legislation', because the
legislative power of the organ which makes it are limited by the statue which
confers such power and thus it is valid only if it is within the limits of the
In Chief Settlement commissioner vs. Om Prakash
, 1969 AIR 33, 1968 SCR (3) 655
court held that legislative power held by the executive must be derived from the
parent act and to be exercised within the limits so prescribed.
Example of delegated legislation- the Essential Commodities Act, 1955, states
that central government is empowered to declare any commodity as essential
commodity, thus the statute delegated its power to the central government.
Parent act and child legislation
The statute enacted by the legislature, conferring the legislative power to its
subordinated authority is called 'parent act'.
Whereas, the rules made by the subordinated authority, by using power conferred
on them is called 'child legislation'.
Reasons for the growth of delegated legislation
Classification of delegated legislation
- Pressure on Parliament: parliament is already overburdened, and it is impossible for parliament to make laws on each and every matter, and hence it tends to delegated its power to subordinated authority.
- Flexibility: parliament amendment is a very slow and complicated process but on the other hand amendment in the delegated legislation is way easier and less complicated process.
- Experiments: executives can experiment via delegated legislation, that is they can make laws, implement them for some time and if the laws are not in public interest or tend to violate any other law, then they can be removed. For example, in traffic matters of the road, certain rules may be implemented for some time and could be removed if not effective.
- Emergency: in times of emergency, wide powers are given to executives to deal with the situation and hence delegated legislation is way more effective.
- Technicality in matters: with advancements in society, things have become more twisted, technical, and complicated, and thus legislation needs an expert for every topic.
There are mainly four types of delegated legislation classification:
- Title based classification
An act may grant the authority the ability to enact laws, orders, or
bye-laws. The variety of legislative provisions that may exist under
multiple names has basically no limitation.
Different forms of delegated legislation are:
- Central act to central government.
- Central act to state government
- Central act to statutory body.
- State act to state government
- State act to statutory bodies
- Discretion based classification
A discretion may be conferred on the executive to bring the act into
operation on fulfilment of certain conditions,
such legislation is called 'conditional legislation'.
Conditional legislation tends to provide control (not law-making power) and also
specifies that the legislation will come into force only after fulfilment of
conditions provided by the statute.
In conditional legislation, legislature makes law that is 'full and complete'
and no legislative function is delegated to the executive. The only duty of the
executive is to apply the legislation upon fulfilling the conditions prescribed
by the statue.
In the famous case of M.P High court bar association vs.
Union of India, 2004, the Madhya Pradesh reorganisation act, 2000
empowered the state government to abolish state administrative tribunal. The
validity of provision was challenged on ground that there was excessive
delegation of power on state. Court held that, the act enacted by parliament
was full and complete and no legislative power was delegated to the
executive, they were mainly to decide the existence of the tribunal.
- Purpose based classification
Parent act may also empower the executive to delegate its power further to its subordinate authority, and this is known as 'sub-delegation'.
When parent statute confers legislative power to executive and executive further delegates it to another subordinated authority, then it is called sub delegation.
The parent act is allowed to produce descendants to a maximum of four or five degrees.
'Delegatus non potest delegare', is a latin maxim which mean that "no delegated powers can be further delegated".
Exception to Delegatus non potest delegare are:
- Express power of sub delegation
- Implied power of sub delegation
Where a statute has itself authorised the subordinate authority to further
delegate its power, then no question arises as to the validity of delegated
In the case of Central Talkies Limited vs. Dwarka Prasad, 1961, AIR 606 1961 SCR
(3) 495 where the U.P control of rent and eviction act stated that no suit shall
be filed for the eviction of tenant without the permission of District
Magistrate or any other person authorised by him, the power to further delegate
wads challenged on ground of excess delegation.
Court held that since the power to further delegate arises from the statue
itself, hence it is not excess delegation.
- Authority based classification
Purpose based classification: This classification of delegated legislation
may be based on the nature and extent of power conferred and purpose for which
such power can be exercised. There are various powers that is delegated such as:
� Power to bring an act into force - In the case of A.K. Roy v. Union of India,
1982 SCC (1) 271 the Supreme Court ruled that the government has the authority
to put the Act into effect and that this power should not be exercised
For example: the Legal Services Authority act, Section 1(3) states that "it
shall come into force on such date as central government may prescribe".
- Power to include and exclude: this means addition or removal of any
person, commodity, item etc to the act. For example: Minimum Wage act
empowers the state government to add or remove any employment for which
minimum wage should be fixed.
- Power to fill in details: usually legislation makes 'skeleton
legislation' which needs to be filled by the subordinate authority.
In skeleton legislation the central or state legislation prepares only a
structure of law and leaves the details to be filled by the subordinated
authority. For example, Under the Essential commodities act, substantive
law-making power is given to the central/state government, and in this way, they
fill in the gaps by way of delegated legislation.
- Power to Modify: sometimes the executive is given the power to modify or
change the law without changing the very nature of the law. This has been
explained further in the case of Rajnarain Singh vs. The Chairman, Patna
Administration (1954) 1954 AIR 569 , in this case the court held that
subordinate authority can make incidental changes to the law but modification
should not be substantial in nature and if done such changes would be invalid.
A famous case involving the transfer of legislative authority was In Re The
Delhi Laws Act, 1951. The case established the rule that while the authority to
amend already-existing laws can be assigned to a subordinate authority, but the
authority to amend the fundamental structure of a law cannot. In other words, a
subordinate authority may be given the authority by the legislature to make
modifications to an existing law, but the fundamental ideas and essential
elements of the legislation must not be changed by that authority. This rule
makes sure that the fundamental components of law are protected while allowing
for required amendments to be made by executive or subordinate authorities.
Control Mechanism of Delegated Legislation
There are many reasons for introducing a control mechanism of delegated
legislation, such as:
There are three forms of control over delegated legislation:
- It guarantees transparency and accountability in the legislative
process. Delegated legislation gives executive or subordinate agencies
considerable authority to implement laws without the involvement of the
legislature. Without adequate checks and balances, these authorities can
misuse the power delegated to them.
- A check on these powers is made possible by the implementation of
control mechanisms, such as parliamentary control or judicial review, which
guarantees that the delegated law stays within the limits of its authority
and serves the public good.
- Control mechanisms serve as safeguards to make sure that the delegated
law does not violate the rights and freedoms of any individual or go beyond
the limits of its original purpose. This mechanism helps in preserving the
rule of law.
- Judicial control
There are basically two tests applied for deciding the validity of delegated
legislation by way of judicial control.
Meaning of Ultra Vires: ultra vires means 'beyond power or authority'. An act
is an ultra vires act if it is done by someone who is acting beyond his/her
- Substantive ultra vires
- Procedural ultra vires
Substantive ultra vires
When act of the legislature is in excess of power conferred on the legislature
by the constitution, then the legislature is said to be ultra vires the
constitution. Similarly, when subordinate legislation goes beyond the authority
of delegated legislation the act is ultra vires, and this is known as
substantive ultra vires.
Under following circumstances, the delegated legislation can be declared invalid
on ground of substantive ultra vires.
Procedural ultra vires
- Parent act is unconstitutional
If the parent act conferring power on the subordinate authority is itself
unconstitutional then the delegated legislation is also unconstitutional or
In the case of Chintamanrao Vs. State of M.P, 1951, SCR 759 the parent act
authorised the Deputy Commissioner to prohibit manufacturing of bidis in some
areas. Court held that order passed by deputy commissioner under the act is
ultra vires and even the parent act is ultra vires the constitution as it
violates the fundamental right to carry on any trade, business or any
occupation, under Article 19 of the constitution.
- Delegated Legislation is ultra vires the constitution
If the statue or parent act is constitutional but the delegated legislation is
ultra vires the constitution, then the delegated legislation will be declared
invalid. Same was held in the case of Air India vs. Nargesh Meerza, 1981, 1981
AIR 1829, 1982 SCR (1) 438. where a regulation was framed by Air India providing
that service of an air hostess will be terminated on her first pregnancy, this
was held violative of Article 14 of Constitution.
In the case of D.S Nakara vs. Union of India, 1983 SCR (2) 165 a scheme was
introduced that provided higher pension to person retiring before a particular
date, and lower pension to others retiring after such date, this was delegated
legislation was held to be violative of Article 14 of the Constitution.
- Delegated legislation is inconsistent was parent act
It is also important that even if the parent act and delegated legislation both
are constitutional but the delegated legislation is inconsistent with the parent
act, then such delegated legislation will be invalid.
In Indian Council of Legal Aid & Advice vs. Bar Council of India, 1955, 1995 AIR
691 rule was framed by bar council barring enrolment as advocate of person who
had completed 45 years of age.
However, Parent act only enabled bar council to lay down conditions subject to
which an advocate shall have right to practice.
Thus, the rule was held to be inconsistent with the parent act.
- If the delegated legislation is mala fide
In the case of Indian Express Newspaper Pvt.Ltd. vs. Union of India (1985), in
this case supreme court held that 'unreasonableness' is a ground of judicial
review which is available to determine the validity of the delegated
- Where delegated legislation includes 'ouster clause'
The delegated legislation may contain a clause stating that its validity shall
not be questioned in any legal proceeding and tends to keep itself away from the
scope of judicial review. This is known as 'ouster clause'.
- Where delegated legislation is arbitrary
In India arbitrariness is not a ground for declaring a subordinate legislation
ultra vires or invalid, but it is included within Article 14 of Constitution,
hence any rule that violates the constitution is invalid.
- Where delegate further delegates
'Delegatus non potest delegate' as mentioned above this maxim means that no
delegated power can be further delegated, until and unless the parent act itself
authorises aur permits such further delegation.
When a subordinate legislation fails to comply with the procedure prescribed by
the parent act, it is knowns as procedural ultra vires. While framing rules,
parent act may require the delegated legislation to observe a certain procedure,
such as discussion with particular bodies or publication of draft rules, etc.
It is binding on the delegated legislation to comply with these procedural
requirements, and if such procedural requirements are not followed, then the
rule so formed will be invalidated. But these procedural requirements are not
Types of procedural control:
One of the techniques adopted by courts to check and control exercise of
legislative power by the subordinate authority, is the process of consultation.
It act as a safeguard against possible misuse of legislative authority.
In order to keep the legislative process open, accountable, and inclusive,
consultation is essential. By embracing many points of view, areas of expertise,
and experiences, it helps to improve the quality of delegated legislation.
Legislators can detect possible problems, unexpected repercussions, and
practical difficulties related to new legislation by including stakeholders in
the consultation process.
Publication means the action of making something generally know, or to make
The public must have access to the law and they should be given an opportunity
to know the law, hence, they must be made aware of delegated legislation by way
In the case of Harla vs. State of Rajasthan, 1951 AIR 467, 1952 SCR 110
legislation was passed by the council and was not made to know to general
public. Hon'ble court in this case held that publication of laws is important.
Publication can be of two types:
- Previous publication
- Post publication
In this type of publication rules are made known to general public before they
are made final or applicable. First the draft of the proposed rule shall be
published, followed by the date on which such rule will come into effect,
further suggestions and advice for such rule will be taken into consideration.
Previous publication gives an opportunity to affected persons to provide
suggestion in the rule made.
In Tulsipur sugar co. vs. notifies area committee,1980, it was held that it is
not mandatory for every rule or delegated legislation to opt for previous
publication, it depends upon statute to statute, few statutes give provision for
previous publication while other do not.
"Ignorantia Juris non excusat" it means ignorance of law is not an excuse, after
the law is made available for public.
In the very famous case of State of Maharashtra vs. M.H George, 1964, German
national Mayer Hans George was found guilty of violating Section 23A of the
Foreign Exchange Regulations Act of 1947 (repealed) by importing gold into India
without the Reserve Bank of India's consent also a notification, dated 8
November,1962 was published in the Gazette of India, stating the same the
accused was sentenced to a year in jail. Authorities from the Customs office
proved that Mr. George was attempting to cheat the government by smuggling 34
kilogrammes of gold.
The defendant took the defence of 'ignorance of law; on which the court held
that, as notification was published in Gazette, it will be presumed that every
individual is aware of the law day after such date on which the law is
- Legislative control
If Parliament delegates legislative power to the executive, it must also ensure
that those powers are properly exercised and there is no misuse of the
The objective of such control is to keep watch over the rule making authority
and provide criticism if they abuse their power.
Forms of legislative control:
Lying on table
it informs the legislature as to what rules have been made by the subordinate
authority. It provides for an opportunity to question or challenge the rules so
There are three effects of lying on table:
- Where the parent act requires mere lying of rules, they will come into
effect as soon as they are made
- If parent act provides for annulment by legislature, rule comes into
effect immediately, but if it is disapproved will be invalid.
- If the act provides draft rules to be placed before legislature, rules
will come into effect only after approval.
In India, there are two scrutiny committees:
The function of committee is to examine and report the respective house, and
report the respective house, whether the power to make rules is being properly
exercised by subordinate authority.
- Lok Sabha committee on subordinate legislation.
- Rajya Sabha committee on subordinate legislation.
They act as a watch dog which bark and arouse their master if there is an
invasion on the premises.
- Other control
In conclusion, the control of delegated legislation is an essential tool for
ensuring the legitimacy and accountability of the legislative process. The
complexities and changing requirements of contemporary government are addressed
in large part by delegated legislation, which transfers legislative authority to
executive agencies. However, efficient regulatory systems must be in place to
guard against possible misuse or arbitrary use of authority, it is also presumed
that delegation of power should be conferred on trustworthy authorities, there
is a presumption that these authorities will not abuse their power.
Control over delegated legislation is essential for preserving the separation of
powers, upholding democratic principles, and defending individual rights.
Governments may make sure that delegated legislation is responsible,
transparent, and in keeping with the fundamentals of democratic governance by
putting in place strong systems for parliamentary oversight, judicial review,
public involvement, and clear rules.
- Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th
Ed., Vol. II, Wadhwa Nagpur -
Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency,