The renowned four pillars of Indian democracy are the legislative, the judicial,
the executive, and the press. Because of its wide-ranging ramifications,
delegated legislation is one of the most contentious issues in legal theory.
These three pillars are empowered by the Constitution of India to refrain from
interfering in other people's concerns.
The executive branch may carry out the implementation of legislation, but the
legislative body retains legislative authority under the Constitution. In the
same vein, the judiciary is empowered to resolve conflicts and dispense justice.
Delegated law is recognized internationally in a number of nations. It is up to
the courts to decide if a nation's constitution is silent on the precise bounds
of delegated legislation. The constitutions of nations like the US, India,
Australia, Canada, and South Africa are conspicuously absent from this
The Privy Council and the Supreme Court of India, the country's current highest
court, should be the first courts to discuss whether administrative regulations
are constitutional in the Indian context.
DELEGATED LEGISLATION IN INDIA
The definition of delegation according to Black's Law Dictionary is "the act of
entrusting a person with power or empowering him to execute on behalf of the
person who has awarded him that power or to serve as his agent or
representative. The exercise of legislative authority by a person who is less
important than the legislature or who reports to it is referred to as "delegated
legislation." An act created by something or someone other than Parliament is
referred to as delegated legislation, sometimes known as auxiliary legislation.
The Act of Parliament states that Parliament may delegate its authority to pass
laws to another individual or organization. An explanation of the Act's purpose
is typically included when a single or specific law system is established by an
Act of Parliament. More details can be added to a Parliamentary Act by other
individuals or groups by virtue of the delegation of legislative authority from
Parliament to the Executive or another subordinate. According to Sir John
Salmond, any power other than the sovereign power is the source of subordinate
Legislation passed with the authority granted by a parliamentary act is referred
to as subordinate or delegated legislation. Despite having the power to enact
laws, the lawmaking body may assign such power by resolution to other
organizations or people. The resolution granting this authority is known as the
Enabling Act. Through the Enabling Act, the council creates general regulations,
and the delegated authority creates specific guidelines.
The primary characteristic is that it permits the state government to make
necessary amendments to the laws without waiting for the Parliament to enact a
new act. If such requirements exist, the delegated legislation may also modify
the punishments in response to technological advancements. It is thought that
when the Parliament assigns such authority to any individual or body, it
empowers that person or body to offer further context for the act of the
Orders in council, by-laws, and statutory instruments are the three types of
They are the ones that the government has formed. A parent act, for instance, is
a statute that gives the parliament the authority to enact laws. The government
typically issues orders in the council when necessary and when they may have an
impact on both an individual and the general population.
The Central Government gives its approval for the local authorities to create
them. The legislature is delegated for a variety of reasons. The legislature
does not have a lot of time to consider and discuss every issue. As a result,
delegated legislation facilitates the passage of laws more quickly than the
Parliament, whose process moves slowly because each measure must pass through
all stages of approval. Moreover, it is thought that the member of parliament
lacks the technical proficiency necessary to enact laws.
However, authority over delegated laws ought to exist. Control over delegated
laws rests with the judiciary and parliament. When it comes to delegated
legislation, Parliament has ultimate authority because it works with the
statutory committees that draft laws. The primary goal of legislative control is
to ensure that the authority granted to rulemaking bodies is neither abused nor
Delegated Legislation In India
The East India Company started to regain political clout in India with the
passage of the Charter Act in 1833, which set the historical background for
power delegation. Under the Charter Act of 1833, the
Governor-General-in-Council, an official body, was given exclusive authority
over administrative functions.
He could make rules and regulations that applied
to everyone, regardless of nationality, and that could be repealed, corrected,
or altered. 1935 saw the passage of the Government of India Act, 1935, which
included a significant delegation plan. The submission and confirmation of the
Committee of Ministers' Powers report resolved the issue of force assignment and
appointment of enactment, which was deemed required in India.
Importance Of Delegated Legislation
In India, delegated legislation is an important part of the broader legislative
process. As a matter of fact, each year there are frequently more delegated laws
than Acts of Parliament. This demonstrates its significance and influence on the
nation's judicial system.
The practical value of the legislative process is one of the main justifications for the requirement for delegated legislation. The legislature, which is made up of elected officials, is in charge of drafting laws and regulations. However, it is not always possible for the legislature to handle every little detail or concern through primary legislation due to the welfare state's diverse operations and the growing complexity of societal challenges. Delegated legislation offers a way to assign certain legislative responsibilities to the executive branch, facilitating the effective execution and management of laws.
The capacity of delegated legislation to close legal gaps or deal with issues that the parliament did not initially anticipate is another benefit. Delegated law offers the essential flexibility to adjust to the way that societies and their demands develop over time. To make sure that the legal structure stays current and adaptable to the shifting demands of society, it gives the government or other authorized organizations the authority to enact new rules, amend old ones, or abolish laws that are no longer needed.
Additionally, the use of delegated legislation guarantees that bodies or individuals with particular skills and experience make laws. For example, local governments might be able to pass rules that consider the individual requirements and conditions of their community instead of enforcing general laws that might not be appropriate for every place. Localized decision-making and improved local governance are encouraged by the decentralization of lawmaking.
Furthermore, delegation of legislative authority becomes especially beneficial in emergency situations. It eliminates the need to wait for certain Acts of Parliament to be passed in order to enable prompt action and response. In emergency situations, when prompt judgments and actions are needed to deal with unforeseen circumstances, this flexibility is essential.
Position Of Delegated Legislation Under The Indian Constitution
- Section 3(1)(f) of the Bihar & Orissa Act gave the local government the authority to apply some of the Bengal Municipality Act, 1884 to Patna, with amendments as judged fit, in the case of
Raj Narain Singh v. Chairman Patna Administration Committee. After making changes, the government explicitly decided to apply Section 104 of the Act to the town of Patna.
- A crucial feature of the Act stipulated that no municipality possessing the power to impose taxes could do so on a locality without affording its inhabitants a chance to express their concerns and be heard. Nevertheless, the notification did not include the sections that provided for this kind of opportunity to object. The court decided that this action amounted to interfering with the intended policy of the Act.
- The D. S. Gerewal v. State of Punjab  case shed significant light on the Indian Constitution's delegated legislation clauses. It was highlighted that the intrinsic power of delegation conferred in the legislature is unaffected by Article 312 of the Indian Constitution, which addresses the authority of delegated legislation.
- The Court made it clear that the language of Article 312 should not be read to undermine the legislature's customary power of delegation. This decision upheld the importance of delegated legislation as a valid and acknowledged procedure for the smooth operation of India's parliamentary system.
- Delegated legislation's bounds were made clear by the J.K. Industries Limited v. Union of India case. Although the Legislature has broad delegation authority, the Supreme Court made it clear that this authority cannot be used to transfer unbridled or uncontrolled power. Legislative rules and regulations limit delegated legislation.
Different Types Of Control Over Delegated Legislation
Under parliamentary oversight over delegated legislation, the legislature is in
charge of making that the executive branch is given the right authority and that
it is not abused.
In most nations, judicial oversight of delegated legislation is a crucial kind
of control. It enables the courts to assess whether legislation that has been
delegated is lawful. The justification for judicial review stems from the
court's constitutional duty to preserve the rule of law.
The judiciary makes sure that delegated legislation stays within the bounds
established by the parent statute and the constitution, and that laws passed by
Parliament do not conflict with it. Because courts have the authority to declare
legislation unconstitutional if it is determined that it goes beyond the
parameters of the parent statute or the constitution, judicial control is
thought to be effective.
The terms "procedural and executive control" relate to the guidelines and
protocols that the legislature may set forth to control how the executive uses
its assigned powers. The publication of delegated legislation, pre-publication
consultation with expert authorities, and rule-laying before the legislature are
some examples of these restrictions.
Until the legislature requires the
executive to adhere to specific regulations or procedures, there is no specific
protocol in place. It could take a while to adhere to a specific format, which
would defeat the purpose of the act altogether. Therefore, procedural control
refers to the requirement under the Parent Act to adhere to particular
principles, regardless of whether doing so is required or not.
- Pre-publication and consultation with an experienced authority are two
of its three components.
- publication of laws that have been delegated.
- setting guidelines.
Judicial Control Over Delegated Legislation
The Judicial Review process still applies to delegated legislation, and courts
are typically permitted to rule on the legality of delegated legislation in
practically all nations. Even in cases when parliamentary control is in place,
judicial oversight of delegated legislation is acknowledged as a crucial control
tool. The court's constitutional duty to uphold the rule of law serves as the
primary rationale for judicial review. Since the courts have the authority to
overturn legislation if it violates the Constitution or the parent statute,
judicial control is thought to be a more effective type of control.
The phrase "ultra virus" refers to something that is beyond authority, power, or
deficiency. Any action taken by an individual or group of individuals that
exceeds their own, theirs, or their authority's power, jurisdiction, or other
relevant criteria is considered an Ultra Virus.
In a state governed by a constitution, the judiciary plays a crucial role in
ensuring that the laws passed by Parliament do not exceed the scope of the
Constitution and that the delegated legislation implemented under the statute
adheres to the boundaries set forth in both the parent statute and the
When the parent act is ultra vires the constitution: A parent act is deemed
void and unconstitutional if it itself contravenes the constitution's
provisions. Any delegation of legislative authority made according to the parent
legislation in such circumstances is likewise nullified.
Upgraded by judicial review was the rule of law. The court must determine
whether the authority granted is within the specified boundaries of the
constitution. Because the court does not make recommendations�rather, it
explicitly invalidates rules that are above the scope of the law�judicial review
is more effective. According to Article 13(3)(a) of the Indian Constitution,
"law" is defined as follows: a state may not enact legislation that restricts
a right stated in Part iii of the Constitution.
If it is determined that the parent act and the delegated legislation violate
certain articles of the constitution, the courts have the power to invalidate
both of them.
- Delegated legislation is ultra vires the constitution: The constitution may be violated by delegated legislation made under parent acts even though the parent act may be constitutional in certain circumstances. The delegated legislation, for instance, may be overturned by the courts if it violates other constitutional requirements or fundamental rights. The courts make sure that the delegated legislation stays within the bounds set by the Constitution by evaluating its constitutionality independently of the parent act.
- Delegated legislation is ultra vires any general law or rule of law: Any general law or rule of law is superseded by delegated legislation, which is subject to dispute if it conflicts with or makes an existing law unconstitutional. The judiciary guarantees that laws that would otherwise be illegal are not made legal by delegated legislation. The delegated legislation may be deemed ultra vires and overturned by the courts if it is determined to be at odds with generally accepted legal principles or established laws.
- Legislation that has been delegated exceeds the parent act: If delegated legislation is determined to exceed the authority granted by the parent act, its validity may be called into doubt. The courts assess whether the delegated laws remain within the parameters established by the parent statute. The courts may declare delegated legislation ultra vires and nullify it if it goes beyond the authority granted by the parent act.
- Legislation delegated but not approved by the enabling act: The enabling act, which outlines the parameters of the delegated powers, is the source of authority for delegated legislation. The courts have the power to nullify delegated legislation if it goes beyond the authority provided by the enabling act. The courts make sure that the delegated law doesn't exceed the authority granted to the delegate and stays within the parameters set by the enabling statute.
- Unreasonableness: In general, one cannot argue that a statute is unreasonable. Delegated legislation, however, might be struck down by the courts if they find it to be unreasonable in light of the specific facts of a certain instance. The courts have the power to determine whether a piece of delegated legislation is reasonable in a given situation based on the facts, context, and legislative consequences.
- Mala fide, or bad faith: It can be difficult to substantiate challenges to delegated legislation based on bad faith or other reasons. On the other hand, in extremely rare circumstances where there is compelling proof of malfeasance or unlawful intent, the legislation may be declared void. To ascertain whether the delegated legislation was enacted with malice or ill intent, courts may review the delegatee's intents and conduct.
- Excessive delegation: When legislative authority is transferred above what is deemed appropriate and required, this is referred to as excessive delegation. Although excessive delegation is rarely a reason for Indian courts to invalidate delegated law, it is nonetheless a point of contention. If the enabling legislation makes it explicit or implicitly available, it is usually recognized.
- Sub-delegation: In general, a delegate is not permitted to transfer their responsibility to another person. Sub-delegation, however, might be allowed in some nations with written constitutions if there is a particular clause that permits it. If an act is determined to be beyond the scope of the enabling statute or the constitution in such a situation, its validity may be called into doubt.
- Noncompliance with court orders: The court has the authority to declare a particular act void if the government disobeys a court order pertaining to delegated legislation. Courts use the judicial review principle to make sure laws and government acts follow their rulings and decrees. If a court order is not followed, the delegated legislation might be deemed void.
- Non-application of mind: If it is clear that the delegate did not take into account the pertinent facts and circumstances when using their authority, then delegated legislation may be deemed invalid. The courts look at whether the delegatee considered all relevant factors and came to a fair and informed choice. The delegated legislation may be declared illegal for lack of application of mind if it is discovered that the delegate failed to sufficiently take into account the pertinent factors.
These oversight procedures are essential in guaranteeing that delegated
legislation adheres to the law, the constitution, and the legality and equity
principles. The courts preserve the rule of law by using their power to examine
and, if needed, overturn delegated legislation that deviates from established
bounds or from core legal precepts.
Doctrine Of Ultra Vires
The Latin expression "ultra vires" means "beyond the power" or "lack of power."
When an individual or group of individuals does anything that is outside of
their power or purview, it is referred to as acting supra vires. The fundamental
idea in administrative law is known as the doctrine of ultra vires, which states
that an authority may only use the authority that the law has granted it. When
an authority acts within the bounds of the authority granted to it, it is
considered intra vires; when it exceeds that authority, it is considered supra
vires. There are two features to the doctrine:
Both procedural and substantive ultra vires
Substantive Ultra Vires, or the inability of the delegated law to make rules
that are not permitted by the parent statute, refers to the delegate's lack of
substantive authority under the authorizing Act to make the relevant
regulations. For this reason, substantive ultra-vires may render the delegated
Relevant Case Laws
In the case of Kruse v. Johnson, a UK court established standards for judging whether by-laws were reasonable. The court ruled that by-laws would be deemed irrational if they included oppressive interference with people's rights without a legitimate basis, was plainly unjust, partial or unequal, or revealed ill faith. This decision emphasizes the court's authority to examine and invalidate bylaws that don't adhere to these reasonableness standards.
Delhi Law Act Case: In this instance, the Central Government was given the authority to repeal earlier laws by means of an act. Nonetheless, the court determined that the use of such power was supra vires, or beyond the bounds of the legal authority. The court's ruling in this case highlights its responsibility to make sure the executive branch stays within the bounds of the law and does not act beyond its authority.
In Chandran v. R, the court stressed that, should the legislature be granted the authority to enact by-laws, that authority must be used within the parameters that the legislature has established. The bylaws may be overturned if they go beyond these bounds. This case emphasizes the court's power to examine and nullify legislative actions, including by-laws, if they deviate from established procedures or the law.
Chintaman Rao's Case (Chintaman Rao v State of Madhya Pradesh): This case concerned a Deputy Commissioner's ban on producing bidis, or hand-rolled cigarettes, during the agricultural season. The Indian Constitution's Article 19(1)(g) guarantees the freedom to engage in any profession, occupation, or trade, and the court ruled that this limitation violated that right. The court's ruling demonstrates its authority to examine presidential decisions and overturn them if they violate constitutionally protected fundamental rights.
These cases show that the judiciary has authority over the decisions and actions
of the executive branch. Ensuring that executive acts are in compliance with
statutory limitations, constitutional obligations, and rationality and fairness
standards is a critical function of the judiciary. As a check on the executive
branch, the courts defend individuals' rights and interests by scrutinizing
executive decisions and overturning those that are deemed illegal, irrational,
or beyond their assigned jurisdiction.
Legislators themselves must exercise effective control over the misuse of their
assigned authority, first during the delegation process and then in monitoring
how those powers are used. The requirement for public participation in the
rule-making process is equally significant. In a democratic society, the
government is required to take into account the opinions and needs of the people
that its regulations will affect.
A policy's effectiveness can be determined by
its alignment with the actual requirements of the populace and its ability to
win over their compassion, goodwill, and satisfaction. Lastly, we need to come
up with ways to make the quickly expanding subordinate law understandable and
easily accessible to the people who need it.
Adopting efficient control mechanisms is required to guarantee that the
executive branch does not abuse its granted legislative authority. In India,
delegated legislation is fully under judicial jurisdiction. The judiciary is
vested with constitutional authority, which means that it cannot be prevented
from reviewing laws that come from lower authorities or directly from
Parliament. A statute that would supposedly give subordinate laws statutory
finality would not be binding on the court.
Award Winning Article Is Written By: Ms.Abhilipsa Kar
Authentication No: NV331844197199-14-1123