BOOK 1 Part 1

CHAPTER 3
DELEGATED LEGISLATION
SYNOPSIS
1. 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 Va- lidity on some superior or supreme authority. 1
Usually, what happens is that the Legislaiire enacts a law covering only
the general principles and policies relating to th subject matter in
1 See Salmond, Jurisprudence, 12th Edn, p. 116.
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
modem administrative process that there is no statute enacted by the
Legislature to-day which does not delegate some power of legislation to
the Executive. Delegated legislation is so multitudinous that the statute
book will not only be incomplete but even mislead- ing unless it be read
along with the delegated legislation which amplifies and sup- plements
it.3 In no democratic country does the Legislature monopolise 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 mod times legislature enacts laws to meet
2 Tata Iron and Steel Co. Ltd. v. Workmen, AIR 1972 SC 1917, para 1 1, p. 1922 :
(1972) 2 5CC 383.
3 See CARR, CONCERNING ENGLISH ADMINISTRATIVE LAW (1941).
the challenge of socio-economic problems. j Legislature often finds it

convenient and necessary to delegate subsidiary or ancill 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 by the Legislature, or
(b)
the subsidiary rules themselves which are made by the subordinate

agency pursuance of the power as mentioned in (a).
As administrative lawyers, we are more interested in the technique,

rather thar 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 con veys the idea that the authority making the legislation is
subordinate to the Legisla ture. The technique of delegated legislation is
very extensively used in India. Two illustrations will suffice.
4 Vasanlal Manganbhai v. State of Bombay, AIR 1961 SC 4, para 4, p. 7 : (1961) 1 SCR

341 see also Agricultural Market Committee v. Shalimar Chemical Works Ltd. (1997) 5
5CC 516, para 24, p. 524 : AIR 1997 SC 2502.
(i)
The Imports and Exports (Control) Act, 1947 is a small piece of

legislation containing eight sections. S. 3 authorises 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.
(b)
Under the Essential Commodities Act, 1955, the Central and State
Govern- ments have promulgated a large number of orders and
rules. The Act in itself is a small piece of legislation containing only
1 6 sections, but under it the Government carries on the whole
operation of controlling and regulating production, movement,
supply, sale, and prices of a number of commodities characterised
as essential commodities.5
The crucial provision in this Act is section 3. See the Bagla case, AIR 1954 SC
465 : (1955) 1 SCR 380.Also, Indian Law Institute, Administrative Process under the
Essential Commodities Act, 1955
(1964). For an extract from this work see, JAIN, CASES ON ADMINISTRATIVE LAW,
I, 1.
Delegated legislation (in the second sense mentioned above) is designated

by 5ev- eral names, such as, rules, regulations, bye-laws, orders etc.,
though the term rules is more commonly employed. The terms
regulations6 and bye-laws7 are usually used to denote the legislation
framed by statutory corporations under delegated legislative power. 8
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 latter.
Sometimes, the term orders is used to denote delegated legislation. An
example of promulgating delegated legislation through orders is
provided by the Imports and Exports (Control) Act, 1947.
6 See, infra, Chap. 7 on Directions and the chapter on Public Sector Undertakings.
Chapter 27.
7 The power to make bye-laws by the respective statutory authority is to be found inter
alia in the following statutes: the Coir Industry Act, 1953; the Tea Act, 1953; and the
Delhi Municipal Corporation Act, 1957.
8 For Public Sector Undertakings,see, Chapter 27.
At times, a statute may use several terms to denote delegated legislation

made iereunder. For instance, in the Income-tax Act, 1 96 1 , the powers
to issue orders, notifications and rules are spread over a number of
sections, e.g.:
(i) a general power to make rules for several matters is conferred on the
Central Board of Direct Taxes by s.295;
(ii)
under sections 121 to 124, distribution and allocation of work to be

performed by various tax authorities may be made through
orders;
(iii)
under S. 80-J(7), the Central Government through a notification

in the Official Gazette may take away an exemption granted under
the section from certain newly established undertakings; and
(iv)
s. 80-K speaks of the rules with reference to tax on dividend from

newly established undertakings or hotels.
The Essential Commodities Act, 1955 uses three termsorder, notified

order and notificationwhich the Central Government can make in
exercise of the powers delegated to it under the Act.
2. FACTORS LEADING TO THE GROWTH OF
DELEGATED LEGISLATION
A number of factors have been responsible for the growth of delegated

legislation in modern democratic states. The function of State has long
since ceased to be confined to preservation of public peace, the
execution of laws and defence of Frontiers. The function of the State is
now to secure to its citizens objectives set out in Chapters III and IV of
the Constitution. The desire to attain these objectives has resulted in
intense legislative activity. The Parliament and the State Legislatures
have neither the time nor the expertise to deal with technical and
situational intricacies. The Parliament and the State Legislatures cannot
visualize and provide for new strange, unforeseen and unpredictable
situations, arising out of complexity of modern life. This is the raison
detre for delegated legislation. That is what makes delegated legislation
inevitable and indispensable.9
The modern State functions on a very wide front and manages the day to
day lives of the people to a very large extent. It directs a major part of the
9 Registrar, Co-operative Societies v. Kunjabmu, AIR 1980 SC 350, para 3, p. 351:
(1980)1 SCC 340.
socio-economic
development
in
the
country.
In
India,
since
independence, the Government is endeavouring to evolve a socialistic

pattern of society through democratic means which involve massive
planning and control of various activities, especially private trade and 10
All these circumstances create the need for more and more law. Law has
become an accepted vehicle of socio-economic change and development
in the democratic societies.
The demand for law, which is practically insatiable, generates a great
pressure of work on the Legislature which not only makes laws but also
discharges such other functions as supervising the Government,
discussing and influencing its policies, discussing proposals for taxation
and expenditure, ventilating people S grievances, etc. 11
During the laissez faire era, when Government discharged only limited
functions, the Legislature could possibly enact all legislation that was
needed, but to-day it cannot cope with all the legislative work by itself
unaided. A method to economies legislative time is delegated legislation.
10 Supra, Chap. 1.
11 For a description of the functions of a Legislature in India see jain, Indisn
constitutional Law, Chs. II and VII (5th Edn. Reprint 2006).
The Legislature confines itself to laying down broad policies and

principles in the legislation it enacts and leaves the task of shaping and
formulating details to the concerned administrative agency.
If the Legislature were to attempt enacting comprehensive laws including
not only policies but all necessary details as well, its work-load would
become so heavy that it may not be able to enact the quantity of law on
diverse subjects which the public de mands of it and which only the
Legislature can enact. It is, therefore, essential to free the Legislature
from the burden of formulating details so that it can better devote its
time to the consideration of the essential principles and policies. Also, if
each piece of legislation enacted by the Legislature were to be complete
with details, the legis lation would tend to become very prolix and
cumbersome, difficult to understand by the common man.
Further, since most of the present day activities of the State relate to
socio economic matters, legislation tends to be quite technical and
complex and expert knowledge is required to work out the details to fully
implement the policy in view. This can be done better by specialists in the
Administration rather than by legislators who are mostly generalists and

not experts in these matters.
There are also occasions when it is difficult to work out beforehand and
include in the bill all details which may be needed to implement large
and complex schemes of reform and, therefore, the task of evolving the
necessary details in this regard has to be left to the Administration. At
times, it may be deemed advisable to hold consul. tation with the
interests affected before all details of the policy are worked out and the
Administration may be depended upon to do so before finalizing the
details.12
Apart from the above mentioned factors, the system of delegated
legislation has become popular because it has the advantages of
flexibility, elasticity, expedition and opportunity for experimentation.
Usually, many present day socio-economic schemes at the legislative
stage are experimental in nature and it is difficult to foresee what
problems would arise in future in working them out in practice. Many a
time, legislation is rushed through the Legislature in a hurry in the hope
12
On Consultative Procedure, see, infra, Ch. 5.
that through experimentation the executive would be able to find the

right solutions for problems at hand. This means that details of these
schemes need to be constantly adjusted in the light of experience gained
in the course of their operation. It would waste much time, and increase
pressure on the Legislature, if every time need is felt to effect adjutment
in a scheme, the matter is referred to the Legislature.
The technique of delegated legislation provides for a mechanism of
constant adaptation to unknown future conditions, and utilisation of
experience, without the for- mality of the Legislature enacting amending
legislation from time to time. As Wade and Phillips point out, delegated
legislation fulfils the need of modern times that something less
cumbrous and more expeditious than an Act of Parliament shall be
available
to
amplify
the
main
provisions,
to
meet
unforeseen
contingencies and to facilitate adjustments that may be called for after

the scheme has been put into operation13
A modern society is faced many a time with situations when a sudden
need is felt for legislative action. There may be threats of aggression,
13 WADE AND PHILLIPS; CONSTITUTIONAL LAW 608 (1965).
breakdown of law and order, strikes, etc. Such situations cannot be met
adequately unless the executive has standby powers. The Legislature
cannot meet at short notice and turn out legislation on the spur of the
moment. It is, therefore, a desirable expedient to pre-arm the government
with necessary powers so as to enable it to take action at a moments
notice by promuulationg the needed rules and regulations according to
the needs of the situation the defence on India Act, 1971 is a case in
point.
The supreme Court of India has mentioned the following as the dominant
as the dominant reasons for giving power of delegated legislations to the
government:14
1. The are for which powers are give to make delegated legislation may be
technically complex, so much so, that it may be possible and may
even
be difficult to set out all the permutations in the statute.

2. The Executive may requite to experiment and to find out how the
original legislation was operation and therefore to fill up all other
details.
14 See, Agricultureal marketing Committee v. Shalimar Chemical Works Ltd., AIR
1997 SC 2502, at 2071997) 5 SCC 516 See also State of Rajashthan v. Basant
Nahata, (2005) 12 SCC 77, para 19 AIR2005 SC 3401
3. it gives an advantage to the Executive, in the sense that a

Government with an onerous Legislative time schedule may feel
tempted, to pass skeleton legislation with the details being provided
by the making of rules and regulations.
Because of these factors, delegated legislation, as a technique of modern
administrate Ofl, is now regarded as useful, inevitable and indispeflsae. 15
In
St.
Johns
Teachers
Training
Institute16
the
Supreme
Court
emphasized the need for delegated legislation. It was held that delegated
legislation i5 framed with care and minute- ness when the statutory
authority after coming into force of the Act, is in a better position to
adapt the Act to special circumstances. Delegated legislation permits
utilization of expeffence and consultation with interests affected by
practical operation of statutes. It was further held that main justification
for delegated legislation is that legislature being over burdened and the
needs of modern society being complex, it cannot possibly foresee every
administrative difficulty that may arise after statute has begun to
operate. Delegated legislation fills those needs. There was a time when
15 Committee on Ministers Powers, at 4,5,23,51,52,(1932).
16 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC
321, para 10, p. 331 : AIR 2003 SC 1533
delegated legislation was criticised as undemocratic, 17 because it is made

by the Executive and not the Legislature and, thus, an extension of the
despotic powers of the bureaucracy. But, in course of time, much of the
antipathy towards delegated legislation has died down because its
practical administrative necessity. It is now characterized as the natural
reflection in the sphere of constitutional law, of changes in our ideas of
Government resulting from changes in political, social, and economic
thinking and of the changes brought in our lives due to scientific
discoveries and technological advances.
3. NEED FOR SAFEGUARDS
However, the system of delegated legislation i5 not completely blameless
as it suffers from several defects. To some extent, it does involve
abandonment
of
its
legislative
function
by
the
Legislature
and
enhancement of powers of the Administration. Many a time, the

Legislature passes Acts in skeleton form containing only the bar- est of
general principles and, thus, leaves to the Executive the task of not only
laying down details but even that of formulating and determining
policies and principles relating to the subject matter of legislation.
17 Lord Heart, The despotism
The Legislature often uses wide, subjectively worded, provisions giving

power to the delegate to make such rules as appear to him to be
necessary or expedient for the purposes of the Act without laying
down any standards to guide the discretion of the delegate. This amounts
to giving a blank cheque to the delegate to do whatever he likes.
The Executive becomes powerful as it secures powers to affect the life,
liberty and property of individuals without the democratic restraints of a
debate in the Legisla ture as usually happens when a statute is enacted
through the Legislature. Discussion on a bill in the Legislature secures
publicity; a lot of discussion takes place on the principles underlying the
bill both within and outside the legislative chamber which can gauge the
public mood. Legislation thus keeps in harmony with the public
sentiment. But this salient and democratic safeguard is not available in
the case of delegated legislation which is drafted in Government
chambers by some anonymous civil servant and mostly promulgated all
of a sudden without much publicity or notice. No one may come to know
anything about it until it is notified. There may be no public discussion,
no press criticism and no public opinion on it. The system thus becomes
undemocratic giving rise to the danger that the Government may misuse
its powers. At any rate, there is widespread suspicion and apprehension

that civil and personal liberties of the people may be endangered by an
unbridled
use
of
the
technique
of
delegated
legislation
by
the
Administration.
Therefore, though the technique of delegated legislation has definite
advantages, has become generally acceptable, and the exigencies of
modern Government make its use necessary, yet the dangers inherent in
its indiscriminate use cannot be lost sight of. Rights of the people can be
as vitally affected by delegated legislation as by primary legislation.
Accordingly, becomes necessary to evolve proper safeguards to minimize
the feeling of insecurity and distrust generated from an apprehension
that the Government may misuse its powers of delegated legislation, to
ensure that the statutory powers are exercised and statutory functions
performed properly and that the Government is not able to capriciously
injure private rights of person or property.
The basic problem, therefore, in the area of delegated legislation is that of
devising suitable controls and safeguards so that the advantages of the
technique of delegated legislation may be available, while the dangers and
risks of abuse inherent therein may be minimized. The focus of the
inquiry thus shifts from the question of desirability of delegated
legislation to that of its control and safeguards. Accordingly, the question

to-day is not whether there should be delegated legislation, but subject to
what safeguards it should be resorted to.
(a) Controls
The controls over delegated legislation operate at two levels.
(a)
At the point of delegation of power by the Legislature.
The question here is: how much power should the Legislature be
permitted to delegate? This is known as pre-natal control. The
question at this stage is whether the Legislature should be free to
delegate any amount of legislative power to the Executive, or the
Legislature should be restrained in this respect?
(b) At the point of exercise of delegated
power
by
the
Administration.
The question here is subject to what restraints and safeguards
should the delegate function in exercising the delegated legislative
powers? In short, what controlMechanism should be put into being so as to minimize the hazards
of the technique of delegated legislation? This is known as postnatal control.
It may be noted that both levels of control are supplementary to
each other. The efficacy of the control at the second stage, to a large
extent, depends upon the first. If the Legislat confers power in very
broad terms, its exercise by the delegate cannot be effectively
controlled later. If the Legislature confers power subject to certain
norms and standards, then the exercise of the power can be tested
in the light of those standards, and any attempt by the delegate to
ignore those standards may be checked iw voiding the deleted
legislation produced by the delegate by applying the do trine of
ultra vires.18
An attempt is made below to discuss controls over delegated legislation at
both the levels ill certain democratic countries as well as in India.
4. RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER
(a) Britain
Even in the earliest years of British Parliament, broad power to legislate
by proclamation remained with the Crown. In 1539 Royal Power to issue
proclamation for good order and governance was recognized by T4enry
VIII s Statute of Proclamations and such proclamations were enforced as
if made by Act of Parliament However the aforesaid statute was replaced
18 For discussion on the Doctrine of ultra vires, see, Ch. 4.
in 1547. Thereafter the Acts of Parliament delegated power to the crown

to make laws. 19th century saw a great increase in the delegation of
legislative power to Government departments and other bodies Delegated
legislate ton is an inevitable feature of modem governance for several
reasons like pressures on parliamentary time, technicality of subjectmatter, the need for flexibility and the State of emergency. U.K.
Emergency Power Act, 1920 makes permanent provisions enabling the
Executive to legislate subject to parliamentary safeguards in the event of
certain emergencies.
In 2006 the Legislative and Regulatory Reform Act was passed, which
gives mm- is ters certain powers to make orders i. e. legislative reform
orders that remove or reduce burden resulting directly or indirectly from
legislation.
The validity of statutory instrument may be challenged on two main
grounds i.e. the content and substance of the instrument is ultra vires
the parent Act and that the correct procedure has not been followed in
making the instrument.19 However, since 1998 the scope for challenges to
the validity of delegated legislation has been significantly widened. In
1998, the Parliament enacted Human Rights Act, 1998. Section 3(1) of
the Human Rights Act, 1998 casts a duty to interpret the legislation
consistently with the European Convention Rights where it is possible to
do so. Thus, the requirement of a valid subordinate law is that it should
be in conformity with European Convention Law. A Northern Ireland Sex
discrimination order made a certificate of the Secretary of State
Conclusive evidence of the ground of dismissal of a woman public officer
which was violate of an European Community Council directive requiring
an effective judicial remedy, in such matters. It was held that dismissed
officer could enforce the remedy in a domestic court. 20 In Bourgeois v.
Ministry of Agriculture21 a ministerial order was held to be unlawjj on
account of conflict with EC treaty.
19 R v. Environment Sec. Exp. Spath Holme Ltd., (2001) 1 All ER 195 : (2001) 2 AC
349. See also, Rohinson v. Secretary ofStatefor Northern Ireland (Northern Ireland),
(2002) UKHL 32.
20 Johnston v. chief Constable, (1986) 3 All ER 135 : (1987) QB 129 (ECJ).
21 (1985) 3 WLR 1027 : (1986) QB 716.
It is a well settled legal proposition by a catena of decisions that

Parliament not intend delegated powers to be exercised for certain
purposes unless by express words or by necessary implication it clearly
authorizes them. In R. v. Lord Chancel exp. Witham 22 the principle that
no one should be deprived of access to courts except by clear words of
Parliament was recognized. The Water Act 1973 empowered the
authorities to levy such charges as they thought fit for services
performed, facilities provided, or rights made available. The House of
Lords in Daymond , Plymouth City Council 23 criticized the provisions of
the Act holding that such wide language must be given limited
construction so that sewage charges could not be imposed on properties
not served by the city council.
In Britain executive has no inherent legislative power. Statutory
Authority is indispensable. The delegated legislation does not have any
immunity from challenge in courts which Acts of Parliament enjoy as
there is a fundamental difference between a sovereign and a subordinate
law making power. House of Lords in Hotel & Catering Industry Training
22 (1997) 2 All ER 779 : (1998) QB 575.
23 (1975) 3 WLR 865 : (1976) AC 609.
Board v. Automobile Ply Ltd.24 declared invalid an order of Mister of Labor

which would have imposed Industrial Training Levy on Clubs which were
not within the Industrial Training Act, 1964. Similarly, where Inland
revenue made regulations taxing dividends and interest paid by building
societies on which tax had already been paid they were declared ultra
vires.25 A provision of the prison Rules was declared ultra vires because it
authorized excessive interference with prisoner 5 correspondence. 26
Where a building bye-law required an open space to be left at the rear of
every new building, so that in many cases it became impossible to
construct new buildings, it was held to be unreasonable. 27 But the court
normally
construes,
bye-laws
benevolently
and
upholds
them
if
possible.28
24 (1969) 2 All ER 582 : (1969) 1 WLR 697.

25 R. V. Inland Revenue Commissioner exp. Woolwich Eqitable Building Society, (1991)
4 All ER 92: (1990) 1 WLR 1400.
26 R. v. Home Secretary exp. Leech (No. 2), (1994) QB 198 : (1993) 3 WLR 1125.
27 Repton School Governors v. Repton RDC, (1918) 2 KB 133; London Passenger
Transport Board v. Summer, (1935) 154 LT 108 ( byelaw prevailing non-payment of
fare unreasonable).
In R. v. Lord Chancellor exp. Lightfoot, 29 an order by Lord Chancellor

increasing court-fee payable for litigation and requiring them to be paid
by someone on income support was held to deprive that person of
constitutional right of access to Court.
Courts
have
declared
invalid
statutory
instruments
which
have
purported to have retrospective effect in the absence of clear authority

from Parliament. Court of Session in 1973 declared ultra vires a
regulation made by Secretary of State for Scotland which sought to
remove from qualified teachers the riht to continue education without
first registration with a statutory teaching council.30
principle that delegates non protest delegate i.e. a person to whom
power has j1egated cannot in turn delegate the power to another, has
also been recogs by the courts.31
28 Cinnamond v. British Airport Authority, (1980) 2 All ER 368 : (1980) 1 WLR 582.
Also see, Percy v. Hall, (1997) QB 924 CA.
29 (1999) 2 WLR 1 126 : (2000) QB 597.
30 Malloch v. Aberdeen Corp., 1974 SLT 253. Also see, R. v. Secretaryfor the Home
Department exp. Mundowa, (1992) 3 All ER 606 CA.
31Allinghans v. Minister ofAgriculture and Fisheries, (1948) 1 All ER 780 DC. See also
Black Pool Corporation V. Locker, (1948) 1 KB 349 CA.
some Acts have made provisions for consultations of interest. Sections

170 and 174 of the Social Services and Administration Act, 1992
provides for consul- J of interest. Similarly, sections 8 and 9 of the
Tribunals and Enquiries Act, z contain provisions for consultation of
interest. Where there is a duty to consult r because of statutory duty or a
consistent practice of consultation, the courts laid down the criteria for
proper consultation, i.e. the consultation to be under-when the proposal
is at formative stage, sufficient reasons must be given for proposal to
enable an informed response to be given, adequate time must be al4 for
the response to proposals and product of consultation must be taken
into account when decision is made.32
A serious procedural error of a department would lead to an instrument
being deader invalid. Where there was duty to consult intended
organizations before regulators were made, it was held mere sending of a
letter to an organization didnt amount to consultation. 33 A ban on oral
32 R. v. North Devon Health Authority exp. Coughian, (2000) 2 WLR 622 : (2000) QB
213.
33 Agricultural Training Board v. Aylesbury Mushrooms Ltd., (1972) 1 WLR 190 :
(1972) 1 All ER280.
snuff was held illegal, as during consultation process the company was
not given scientific grounds on which the ban was made. It was further
held that unfair consultation process can lead to instrument being
quashed.34 Where a Department failed to allow sufficient time it was held
that there was no effective consultation.35
The doctrine of severability has also been applied in the context of
delegated leg- isolation. It has been held that where either on the
grounds of substance or procedure an instrument is to some extent
defective this does not mean necessarily that whole instrument is a
nullity. It may be operative to its lawful extent or be binding on the
persons not affected by the defect of procedure. 36 The decision of such
severance is permissible only when after deletion the unlawful part of
34 R. v. Secretary ofState, Fxparte U.S. Tobacco International Inc., 1992 QB 53; see
also The North- em Ireland Commission for Children and Young People v. Peter
Ham, The Secretary of State,(2007) NIQB 52.
35 R. v. Social Services Secretary exp. Association of Metropolitan Authorities, (1986)

1 WLR 1 (1986) 1 All ER 164.
36 Dunkley V. Evans, (1981) 1 WLR 1522 : (1981) 3 All ER 285.
substance of provision remains essentially unchanged in purpose and

effect from what had been intended.
37
(b) U.S.A.
In the United States, the position is substantially different from what
prevails in Britain. The U.S. Congress functions under a written
Constitution, and the courts have power to interpret the Constitution
and declare a Congressional statute unconstitutional if it does not
conform with their view of the Constitution. In the celebrated case of
Yongstown & Tube Co. v. Sawyer,38 the United States Supreme Court
ruled that American Constitution is inconsistent with the notion of
executive law making authority.
There also prevails the doctrine of separation of powers in the U.S.A., as

discussed earlier.39 Besides, the U.S. Supreme Court has also invoked the
37 DPP v. Hutchinson, (1990) 3 WLR 196 : (1990) 2 AC 783; R. v. IRC exp. Woolwich
Building Society, (1991) 4 All ER 92.
38 343 U.S. 579, 589 (1952); Baker v. Carr, 369 U.S. 186 (1962; Powell v. Mc
Cormack, 395 U.S. 486 (1969).
39 Supra, Ch. i.
doctrine of delegatus non potest delegare against delegation by the

Congress. The doctrine means that a delegate cannot further delegate its
powers. The courts thus argue that the Congress, being a delegate of the
people, cannot further delegate its law-making functions to any other
agency.40
In the U.S.A., the question of delegation of legislative powers thus
involves a conflict of values. On the one hand, the doctrine of
separation insists that the legislative function be kept aloof and distinct
from the executive function. On the other hand, as already noted, the
exigencies of modern Government make it practically impossible to
concentrate all legislative power in the hands of the Congress which
cannot possibly dispose of all legislative work by itself in the sense of
turning out a comprehensive legislation complete in all details on every
subject it undertakes to legislate upon. If Congress were not willing to
delegate law-making power to some agency then it may be impossible for
it to enact the kind and quantity of legislation which the country may
need.
40 HORST P EHMKE, DELEGATE POTESTAS NOR POTEST DELEGARIA MAxIM OF
AMERICAN CONSTITUTION LAw, 47 Cornell LQ 50 (1961); JAFFE, AN ESSAY ON
DELEGATION OF LEGISLATIVE PowER, 47 Col LR 359 (1947).
Thus, pragmatic considerations have prevailed over theoretical objections

and, in course of time, the courts have relaxed the rigors of the doctrine
of separation of powers and permitted broad delegation of power, subject
to the rider that the Con- grass itself should lay down standards or
policies for the guidance of the delegate, that delegation should not be
vagrant and uncontrolled, that Congress should not give a blank cheese
to the executive to make any rules it likes, for to do so would amount to
an abdication of its functions by the Congress, If Congress transfers to
others the essential legislative functions with which it is vested, the
statute doing so will be unconstitutional. Therefore, the courts insist that
the Congress should not delegate uncontrolled power to the Executive,
but that the Congress should itself declare the policy regarding the
subject-matter of legislation, and only the power to lay down details to
effectuate that policy may be delegated to the Administration.
The test, in the words of Justice CARDOZO, is that to uphold the
delegation there is need to discover in the terms of the Act a standard
reasonably clear whereby the discretion must be governed. 41 The
41 Panama Refining Co. v. Ryan, 293 US 388, 434 (1935). This case is known
popularly as the Hot Oil case. See, JAIN, CASES, I. 30.
principle that authority granted by the Legislature must be restricted by

an adequate standard serves the theory of separation by ensuring that
fundamental policy decisions must be made by the Legislature and not
by officials. If the statute contains no standard to limit delegation of
power, it amounts to giving a blank cheque to make law in the delegated
area of authority and, thus, the agency, rather than the Congress,
becomes the primary legislator.
The working of the rule can be illustrated with reference to the following
two cases.
(i) In Panama Refining Co. v. Ryan,42 the Congress authorised the
President to ban oil in inter-state commerce when produced in excess of
the quota fixed by each State. The majority of the U.S. Supreme Court
held the Act bad, for the Congress declared no policy, established no
standards, and laid down no rule. There was no requirement, no
definition of circumstances and conditions in which the transportation
was to be allowed or prohibited.
42 293 US 388, 434 (1935).
iii) Yakus V. U.S.,43 is a case on the other side of the line. During World
War II, the office of the Price Administrator was set up to control prices.
The relevant Act declared that the prices fixed ought to effectuate the
declared policy of the Act to stabiornmodity prices with a view to prevent
wartime inflation and its disruptive causes and effects. In addition, the
prices fixed had to be fair and equitable. In fixing prices the
Administrator had to give due consideration to the prices prevailing 1n
a designated base-period.
The delegation, though in effect extremely broad, was, nevertheless, held
valid by d Supreme Court for the Congress had stated the legislative
objective and had prejbed the method of achieving that objective
maximum price-fixingand had laid down the standards to guide the
Administrators determination. The Court found a t the standards
prescribed were sufficiently definite and precise so as to enable every one
to ascertain whether or not the Administrator, in fixing the designated
prices had conformed to those standards.
43 321 US 414 (1944).
There are not many examples of the United States Supreme Court
declaring
Con-
gressional
legislation
unconstitutional
because
of
excessive delegation of legislative power. Only in three cases of

significance has the delegation been held to be excessive 50 far. 44 The
exigencies of modem Government have persuaded the purts to relent in
their attitude towards delegation. The basic premise still remains that
Con- gress cannot delegate legislative power without prescribing
standards, but whether this test is satisfied or not in case of a specific
legislation, is a matter on which courts have adopted a liberal attitude.
In many cases, very broad delegations have been upheld and very vague
phrases have been held to be adequate as laying down standards, so
much so that one corn- mentator has remarked that judicial language
about standards is artificial.45 But still, the courts do reserve to
themselves
the
power
to
declare
delegation
of
legislative
power
unconstitutional if they feel that in a given case the delegation is too

44 Besides Panama, two other cases are : Schechter v. U.S., 295 US 495 (1935); Carter
v. Carter Coal Co., 298 US 238 (1936).
45 DAVIS, ADMINISTRATIVE LAW 54 (1951). ALSO, JAFFE, AN ESSAY ON
DELEGATION OF LEG- ISLATIVE POWER, 47 Col LR 359 (1947); Lichter v. U.S., 334
US 742 (1948).
broad and indefinite. Till that extreme point is reached, courts permit
delegation realising that Legislature to-day has to deal with complex
socio-economic problems and it may not be practical for it to
meticulously lay down standards for the delegate to follow.
Nevertheless, the academic and judicial view is in favour of maintaining
the docthne that delegation by Congress should be accompanied by
discernible standards. It is argued that the doctrine serves two primary
functions.
First, it ensures that the fundamental policy decisions will be made not
by an appointed official but by the body elected by, immediately
responsible to, the people. Formulation of policy is the primary
responsibility of the Legislature which task is entrusted to it by the
electorate.
Second, it prevents judicial review from becoming merely an exercise at
large by providing the courts with some measure against which to judge
the official action that has been challenged.46
46 J. SKELLY WRIGHT, BEYOND DISCRETIONARY JUSTICE, 81 Yale U 575 (1972);
U.S. v. Robel, 389 US 258 (1967); JUSTICE HARLAN (Joined by JUSTICES DOUGLAS
AND STEWART) in Arizona v. California, 373 US 546 (1963).
Even though the U.S. Supreme Court has upheld broad delegations
because of the exigencies of the Government in modern times, the Court
always reiterates the doc trine of excessive delegation. The doctrine has
never been repudiated, though in ts practical application the courts
adopt a flexible approach. Also, the existence of t doctrine may lead the
court to read the delegating provisions narrowly to avoid co stitutional
problems.47 In recent years, there have been calls for revitalization of th
excessive delegation doctrine from many quarters, even from those who
have antipathy towards social legislation.48 However, justice Frank
Furter49 has aptly warned the power which must more and more be
lodged in administrative experts, like all power is open to abuse unless it
s exercise is properly circumscribed and zealously scrutinized for we have
greatly widened the field of administrative discretion and thus opened
the doors to arbitrariness.49
47 National Cable Television Assn. v. U.S., 415 US 336 (1974).

48 SCHWARTZ, ADMINISTRATIVE LAWA CASEBOOK 1 19 (1977).
49 FRANK FURTER, the public and its Government, 157 (1930).
The development of extent of delegated legislation in United States has

been equally striking as in Britain. In the words of leading American
official study, The promulgation of general regulations by the executive,
acting under statutory authority has been a normal feature of Federal
administration ever since Government was es tablished. 50 In U.S.A. for
many years now, the federal register in which delegated legislation is
published is more voluminous than the statutes at Large, in which laws
enacted by the congress are published.51
In spite of the dilution of the theory of non-delegation in the U.S.A., there
is a real doctrinal difference between Britain and the U.S.A. on the
question of delegation. Though, in both countries, delegation of legislative
power has come to be established as a technique of legislative and
administrative process, and broad delegations have come to be permitted,
yet, while in the U.S.A., in theory, the last word rests with the courts on
the question as to how much delegation would be permitted in a given
situation, in Britain it rests with Parliament as there is no constitutional
50 See BERNARD SCHWARTz. AN INTRODUCTION TO AMERICAN ADMINISTRATIVE
LAW SECOND EDITION.
51 Report of the ATTORNEY GENERALs COMMITTEE ON ADMIMSTRATION
PROCEDURE 97 (1841)
limitation to restrain Parliament from assigning power where it likes.

Because of the doctrine of excessive delegation in the U.S.A., the
Congress does seek to lay down some standards in the legislation
delegating legislative power.
(c) India
The question of permissible limits of delegation of legislative power
became important in Independent India.
Just on the eve of independence, the Federal Court had held in Jatindra
Nath v. Province of Bihar 52 that there could be no delegation of legislative
power in indian beyond conditional legislation-a concept referred to
later.53 This is an extremely restrictive form of delegation. But then the
broader question was whether the Legislature in Independent India
should be restricted to this limited form of delegation, or should it be
given a greater freedom to resort to this technique?
If the Legislature were to be permitted a greater freedom, then the next
question was; which of the two models- the British or the American
52 AIR 1949 FC 175.
53 See, Chapter 3 & 6.
which differ from each other rather fundamentally- should be followed in

Indian?
The courts could hold either that a Legislature in India could delegate as
much power as it liked following the British model, or else that it, like the
American congress, cs could not give to the delegate unlimited powers,
and that it should State the l icies subject to which the delegate is to
function in making legislation.
There
are
similarities
and
dissimilarities
between
the
Indian
Constitution, on the oue hand, and the Constitutions of Britain and the
U.S.A., on the other. India and ftain both have parliamentary formof
Government in which the Executive is also a nart of the Legislature and
can be closely supervised by it. On the other hand, while dia has a
wanton constitution, Britain functions mostly under an unwritten
constriction. The British Parliament is Sovereign. One of the hallmarks of
such sovereignty is the right to make or unmake any law which no court
or body or person can seethed or override. The Indian Parliament is a
creature of the Constitution and its powers privileges and obligations are
specified and limited by the Constitution. 54 Also, while India, like the
U.S.A., has the system of judicial review of legislation, the same does not
prevail in Britain. This means that while the courts in India can declare
law unconstitutional, such a power is not available to any court in
Britain.
But then, while in the U.S.A., the presidential form of Government is
based on the principle of separation of powers, the Indian system does
not follow that principle in the area of Executive-Legislative relationship.
The parliamentary form of Govern- mint is based not on the principle of
separation, but on that of co-operation, rather unison, of the two organs.
Because of these similarities and dissimilarities between the Indian,
British and the American Constitutions, it was open to the Supreme
Court in Independent India to follow either the English or the American
model on the question of delegation of legislative power.
Further, the constitution of India is neutral on this point as there is
nothing in the Indian Constitution either by way of expressly prohibiting,
or permitting the Legislature of delegate its legislative power to the
54 Rajaram Patel v. Hon ble Speaker Lok Sabha, (2007) 3 5CC 184, para 720 : (2007)
2 JT 1.
Administration. Therefore, if the courts head to find any restrictions on

the Legislature in the matter of delegation, it had to be on the basis of
some general theories and principles of constitutional law and not on the
basis of some henral theories and principal of constitutional law and not
on the basis of any specific provision in the constitution. The supreme
Court of India was faced with all these questions in the famous case of in
re Delhi laws Act.55
(d) Delhi Laws Act Case
There were a few (Delhi being one of them) Part C States, under the
direct administration of the Central Government, without having a
Legislature of their own, Delhi being one of these. Parliament had to
55 AIR 1951 SC 332, para 90 : 1951 SCR 747. Also see Mahmadhusen Abduirahirn
Kalota Shaikh v.Union ofindia, (2009) 2 5CC 1, paras 34, 35 and 36 : (2009) 1 5CC
(Cr1) 620; Rajaram Patel v.
Hon ble Speaker Lok Sabha, (2007) 3 5CC 184, para 720; State of Rajasthan v.
Basant Nahata,
(2005) 12 5CC 77, para 19 : AIR 2005 SC 3401; Raineshwar Prasad v. Union ofindia,
(2006) 2
SCC 1 , para 104, 105, 106, 1 17, 154, 196 and 201 : AIR 2006 SC 980; M.P. High
Court Bar Association v. Union ofindia, (2004) 1 1 5CC 766, para 38 : (2005) AIR
SCW 3208; Peoples Union for
Civil Liberties v. Union of India, (2004) 2 5CC 476, para 36, 37 and 39 : AIR 2004 SC
1442; B.
Krishna Bhat v. State ofKarnataka, (2001) 4 5CC 227, para 5 : AIR 2001 SC 1885;
Kiran Gupta v.
State of UP., (2000) 7 5CC 719, para 12.
legislate for these States. As it was very difficult for Parliament to find the
necessary time to do so in view of its other manifold en- agreements,
Parliament passed a law, the Part C States (Laws) Act, 1950. The Act
authorized the Central Government to extend to any Part C State, with
such restrictions and modificatiolis as it thought fit, any enactment in
force in a Part A State. While doing so, the Government could repeal or
amend any corresponding law (other than a Central Law) which might be
operative at the time in the Part C State concerned.
Undoubtedly, it was a very sweeping kind of delegation. The Government
c extend to a Part C State any law made by a State Legislature (and not
by Parliam at any time (not only laws prevailing in 1950 but even those
made subsequently), even modify the law before extension. And if there
was already a law in force in concerned Part C State on the point, it
could either be repeated or modified by Government when the law was
being extended.
The Supreme Court was called upon to adjudge the validity of this aboveminted provision. Seven Judges participated in the decision and seven
opinions v delivered exhibiting a cleavage of judicial views on the
question of limits subject which the Legislature in India should be

permitted to delegate legislative power. j on two points there was a unity
of outlook amongst all these opinions.
First, keeping the exigencies of the modern Government in view,
Parliament a well as State Legislatures in India need to delegate the
legislative power if they be able to face the multitudinous problems facing
the country, for it is neither practical nor feasible to expect that each
legislative body could turn out a complete r comprehensive legislation on
all subjects sought to be legislated upon.
Two, since the Legislatures derive their powers from the written
constitution which creates them, they could not be allowed the same
freedom as the British Parliament in the matter of delegation, and that
some limits should be set on their capacity to delegate.
The Judges, however, differed on the question as to what were to be the
permissi
ble limits within which the Indian Legislature could delegate its
legislative power?
One view propounded was that the Indian Legislature could delegate its
power to any extent subject to the limit that it did not efface itself, or
abdicate its powers, which meant that the Legislature should never give
up its control over the delegate; that it must not destroy its own
legislative power; that it must retain in its hands the ultimate control
over the authority so as to be able to withdraw the delegation whenever
the delegate did something wrong or foolish.
The other view which approximated to the American approach, and
which in theory at least is somewhat more restrictive than the first, was
that the Legislature should not delegate its essential legislative function
which comprised the formulation of policy and enacting it into a binding
rule of conduct. That means that the Legislature should lay down
standards or policy in the delegating Act and the delegate may be left
with the 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 policy and enacting it into a binding rule of
conduct. The Supreme Courtropuiided the thesis in the instant case that
the Legislature is the care Ctureorme Constitution, the constitutionmakers have placed their confidence in the collective wisdom of the
Legislature, the constitution has chosen to vest legislative power in the
elected representatives of the people. It is inevitable that the Legislature
should itself discharge the essential legislative function, viz., the
Legislature should itself lay down standards or policy in the delegating
Act leaving the delegate with the power to make rules to execute the
policy laid down by the Legislature.56
The specific provision involved in the instant case was held valid by a
majority of Judges subject to two riders:
(1) that part of it was bad which authorised the Government to repeal a
law already in force in a Part C State;
(2)
the power to effect modifications in a State law in its application to

a Part C State envisaged only such modifications as did not change
the underlying policy of the law sought to be extended.
56 Same proposition is reiterated in later case. See Krishna Prakash Sharma v. Union
oflndia, (2001)5CC 212, para 18 : AIR 2001 SC 1493; State ofRajasthan v. Basant
Nahata, (2005) 12 5CC 77,
paras 19 and 20 : AIR 2005 SC 3401.
The Delhi Laws Act case achieved two ends:

(1)
it legitimized delegation of legislative power by the Legislature to

administrative organs;
(2)
it imposed an outer limit on delegation by the Legislature. No

Indian Legislature can delegate unlimited legislative power to the
Administration. If delegation is too broad, the courts can declare
the same as excessive and hence invalid.
The Court realized that, keeping the exigencies of the modern

Government in view, parliament as well as the State Legislatures in India
need to delegate the legislative power if they are to be able to solve the
multitudinous problems facing the country, for it is neither practicable
nor feasible to expect that each legislative body could turn out a complete
and comprehensive legislation on all subjects sought to be legislated
upon. The Court was also agreed that since the various Legislatures in
India derive their powers from the written constitution which creates
them, they could not enjoy the same freedom as the British Parliament in
the matter of delegation of legislative power, and that some restriction
should be set on their capacity to delegate. Hence, the majority on the
Bench opted for the American position that the Legislature itself must set
the essential policy, or lay down standards or policy in the delegating Act,
and the delegate would then legislate to further the legislative policy. This
has come to be known as the Doctrine of Excessive Delegation of
Legislative Power.
In Ramesh Birch V. Union of India, 57 a provision relating to Chandigarh
similar to the one involved in the Delhi Laws Act case regarding Delhi.
has been held valid.
5. DOCTRINE OF EXCESSIVE DELEGATION
In course of time, through a series of decisions, the Supreme Court has
confirmed the principle that the Legislature can delegate its legislative
power subject to its laying down the policy. The Legislature must declare
the policy of the law, lay down legal principles and provide standards for
the guidance of the delegate to promulgate delegated legislation,
otherwise the law will be bad on account of excessive delegation.
57 AIR 1990 SC 560 : 1989 Supp(1) 5CC 430; JAIN, CASES, I, 72.
The Indian Legislature cannot delegate unrestrained unanalyzed and

unqualified legislative power on an administrative body. 58 The Legislature
can delegate legislative power subject to the condition of laying down
principles, standards and policy subject to which the delegate, is to
exercise its delegated legislative power. In case the Legislature fails to do
so, the law made by it delegating,
legislative power would
be
invalid.59Delegation is valid only when it is confined to legislative policy

and guidelines.60 It is equally well settled that a delegatee must exercise
its jurisdiction within the four corners of its delegation. 61
58 Humdard Dawakhana (Wakf) v. Union of India, AIR 1960 SC 554 : (1962) 2 SCR
671; KishanPrakash Sharma v. Union oflndia, (2001) 5 5CC 212 : AIR 2001 SC
1493; Krishna Mohan (P)
Ltd. v. Municipal Corporation ofDelhi, (2003) 7 5CC 15 1 : AIR 2003 SC 2935; State of
Rajasthan
V. Basant Nahata, (2005) 12 5CC 77.
59 State ofRajasthan v. Basant Nahata, (2005) 12 5CC 77, para 19 : AIR 2005 SC
3401 ; M.P. High Court Bar Association v. Union oflndia, (2004) 1 1 5CC 766, para 38 :
AIR 2005 SCW 3208; Un- ion ofindia V. Azadi Bachao Andolan, (2004) 10 5CC 1, para
69 : AIR 2004 SC 1107.
60 1K. Industries Ltd. v. Union ofindia, (2007) 13 5CC 673, para 130, 131.
61 LIC oflndia v. Retired LIC Officers Assn., (2008) 3 5CC 321, para 17 : AIR 2008 SC
1485; Chair- man Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals
Ltd., (2007) 8 5CC 705, para 99 : AIR 2007 SC 2458.
It has been held in Sitaram Vishambhar Dayal, 62 whether a power

delegated by the legislature to the executive has exceeded the permissible
limits in a given case depends on its facts and circumstances. The
question does not admit of any general rule. It depends upon the nature
of power delegated and the purpose intended to be achieved.
In applying the test of excessive delegation, apart from considering the
breadth of the discretion conferred by an Act to promulgate delegated
legislation, the courts also examine the procedural safeguards contained
in the Act against misuse of power, as for example, laying of the ruled
before the Legislature, Consultation with the interests affect. A
completely unlimited blanket power where there is neither any guidance
to the delegate, nor any procedural safeguards against i9roper exercise of
power by the delegate, can be held invalid as excessive delegation. 63
62 Sitaram Vishambhar Dayal v. State of UP., AIR 1972 SC 1 168, para 7, p. 1 170 :
(1972) 2 SCR141.
63 See Kishan Prakash Sharma v. Union ofindia, (2001) 5 5CC 212, para 18 : AIR
2001 SC 1493.
A case in point is H.R. Banthia v. Union oflndia. 64 S. 5(2)(b) of the Gold

(Control) Act, 1968 empowered the Gold Administrator, so far as it
appeared to him to be necessary or expedient for carrying out the
purposes of the Act, to regulate the manufacture, distribution, use,
disposal, consumption, etc., of gold. The Supreme Court declared the
provision invalid because it was very wide and suffered from the vice of
excessive delegation. The Court also took into consideration the fact
that under s. 1 14 of the Act, power of delegated legislation was also
conferred on the Central Government. But while the rules made by the
Government were required to be laid before each House of Parliament, 65
there was no such obligation in respect of the rules made by the
Administrator under s. 5(2)(b). The power of the Administrator was not
subject to any procedural safeguard while that of the Government was,
and, thus, the power conferred on the former was even broader than that
conferred on the Government.
64 AIR 1970 SC 1453 (para 17, page 1464) : (1969) 2 5CC 166.
65 See, infra, Ch. 5, for 1aying procedure.
The question sought to be settled in the Delhi Laws Act case and
subsequent cases was again re-opened in Gwalior Rayon 66 after a period
of twenty-four years since the doctrine was laid down in Delhi Laws Act
case. MATHEW, I., in his opinion argued that so long as Parliament
retains the power to repeal the delegating provision, it does not abdicate
its legislative function and, therefore, there should be no objection to
delegation howsoever broad its extent.
MATHEW, J., argued that since the Legislature can repeal the statutory
provision delegating power, there should be no need to lay down policy or
standard in the statute because through its repeal power, the Legislature
retains an ultimate control over the delegate; and the Legislature could
never be regarded as abdicating its legislative power. If accepted,
MATHEW, I. 5 view would have resulted in a complete emasculation of
the doctrine of excessive delegation, and there would remain no
semblance of restraint on the Legislature in the matter of delegation.
However, the majority of the Judges on the Bench did not agree with this
thesis of MATHEW, J. The majority reiterated the proposition that when a
66 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660 : (1974) 4 5CC
98.
Legislature confers power on an authority to make subordinate

legislation, it must lay down policy, principle or standard for the
guidance of the authority concerned.
This view of MATHEW, I., would have meant dilution of the doctrine of
excessive delegation leaving no semblance of rstraiit on the Legislature
to delegate as much legislative power as it may like. The dangers inherent
in such an approach were pinpointed by the majority thus: Suppose the
crime situation in the country deteriorates. Can Parliament pass a law
saying that henceforth criminal law enforced in the country would be
such as is framed by a designated officer? Although Parliament still has
the power to repeal the provision, yet can such a blanket delegation of
legislative power be accepted?
MATHEW, J.s thesis was full of pitfalls; in effect, it would have led to
uncontrolled delegation like that in Britain, because no Legislature can
ever part with its power to repeal a law enacted by it. Besides after
delegating the power, Parliament cannot, in a practical sense, control its
exercise through its power of repealing the law enacted by it. To-day S
Legislature is too much under the control of the Executive. In a
parliamentary democracy, the Government of the day having majority

support in the Leg- islature can persuade or pressurize the Legislature to
enact any statute it desires. It is only a myth to suppose that the
Legislature can ever repeal a law on its own initiative if the delegate does
not use the delegated powers properly; all legislation is sponsored by the
Government; Parliament passes no law without the initiative and consent of the Executive and it is highly improbable that the Executive
would ever ask Parliament to repeal a provision delegating legislative
power to itself on the ground that it has misused that power as this
would amount to self-censure by the government.67
The majority led by KHANNA, J., refused to accept MATHEW J.s thesis
and reiterated the doctrine of excessive delegation with persuasive
arguments. In his words:
The rule against excessive delegation of the legislative authority flows
from and is a necessary postulate of he sovereignty of the people.
67 On the question of inter-relationship between the Executive and the Legislature,

see, lAIN, JNDIAN CONSTITUTIONAL LAw, Chs. II, III, VI and VII (5th Edn. Reprint
2006).
KHANNA, J., pinpointed the dangers inherent in MATHEW, J.s thesis.

Acceptance of this view would lead to startling results. Suppose the
crime situation in the country very much deteriorates. Can the
legislature pass a law saying that henceforth criminal law enacted in the
country would be such as is framed by a designated officer, can such a
blanket delegation of legislative power be accepted although the
Legislature still keeps within its hands the ultimate control of repealing
the law in question if the designated officer does not use his power in a
way approved the Legislature.
Form a practical view, the Legislature cannot exercise its power to repeal
the delegating law. To-day s legislative is very much under the thumb of
the Executive. Legislature does not move against the Executive and no
Government is ever going to ask the Legislature to repeal a law because
power conferred thereunder has been misused by the Executive.
From a practical point of view, the doctrine of excessive delegation serves
a useful function. Some kind of a safety valve is necessary in the context
of the functioning of modern parliamentary system in a developing
country. In spite of the inadequacy of the doctrine, it does provide to the
courts with a judicial tool to control delegations beyond a legitimate

degree. In the absence of any such restrictions the Legislature may,
under the pressure of the Executive, give a blank cheese to the executive.
The doctrine of excessive delegation does obligate the Legislature to State
some policies, principles and guidelines in the statutes to control the
delegate to some extent. The courts can use the doctrine to check
extreme instances of delegation. Statement of policies also enables the
courts later to apply the doctrine of ultra vires to the dele gated
legislation in a more meaningful manner.
KHANNA, I., explained the theoretical basis of the doctrine of excessive
delegation thus:
. . . Our constitution makers have entrusted the power of legislation to
the repre sentatives of the people, so that the said power may be
exercised not only in the name of the people but also by the people
speaking through their representatives. The rule against excessive
delegation of the legislative authority flows from and is a necessary
postulate of the sovereignty of the people. The rule contemplates that it is
not permissible to substitute in the matter of legislative policy the views
of the individual officers or other authorities, however, competent they

may be for that of the popular will as expressed by the representatives of
the people.68
The Gwalior Rayon majority view has been approved by the Supreme
Court there after in a large member of cases. 69
As a result of these pronouncements, the doctrine of excessive delegation
should be regarded as very well established in India which means that
the Legislature cannot delegate uncanalised and uncontrolled power.
Thus, while delegating legislative power, the Legislature should lay down
legislative policy, standards or guidelines for the delegate to follow. The
Supreme Court has enunciated the doctrine of excessive delegation in
Kunjabmu70 as follows:
68 AIR 1974 SC 1660, 1667 : (1974) 4 5CC 98.

69 See, for instance, K.S.E. Board v. Indian Aluminum, AIR 1976 SC 1031, 1050 :
(1976) 1 5CC 466; BR. Enterprises v. State of Uttar Pradesh, AIR 1999 SC 1867, at
1906 : (1999) 9 5CC 700; Agricultural Market Committee v. Shalimar Chemical Works
Ltd., AIR 1997 SC 2502, 2507 : (1997) 5 5CC 5 16; Kishan Prakash Sharma v. State
oflndia, AIR 2001 SC 1493, 1502 : (2001) 5 5CC 212.
70 Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350, 352 : (1980) 1
SCC 340. See also, St. Johns Teachers Training Institute v. Regional Director, National
Councilfor Teacher Education, (2003) 3 5CC 321, para 10 & 12 : AIR 2003 SC 1533.
The power to legislate carries with it the power to delegate. But excessive
delegation may amount to abdication. Delegation unlimited may invite
despotism Un- limited. So the theory has been evolved that the
Legislature cannot delegate its essential legislative function. Legislate it
must, by laying down policy and principle and delegate it may to fill in
detail and carry out policy. . . . If guidance there is, wherever it may be
found, the delegation is valid.
The Supreme Court has stated in Mahe Beach Trading Co. v. Union
Territory of Pondicherry71 that if there is abdication of legislative power,
or there is excessive delegation, or if there is a total surrender or transfer
by the Legislature of its legislative functions to another body, then that is
not permissible. There is, however, no abdication, surrender of legislative
functions or excessive delegation so long as the Legislature has expressed
its will on a particular subject matter, indicated its policy and left its
effectuation to subordinate legislation, provided the Legislature has
retamed the control in its hand with reference to it so that it can act as a
71 (1996) 3 5CC 741, para 13, p. 746.
check or a standard and prevent or undo the mischief by subordinate

legislation when it chooses to or thinks fit.72
The Court has stated in kunjabmu that guidance may be found

anywhere in the statute e.g. in the express provison empowering
delegation , on other provisions of the statute the preamble the scheme
or even the very subject-matter of the statute. 73 At time the court seeks
to assess the policy underlying the Act not always within the Act itself
but even from factors external to the Act, e.g. history of the legislation.
72 (1995) Supp (1) 5CC 642, para 23, 24 & 26; Also see, Organon (India) Ltd. v.
Collector of Excise,AIR 1994 SC 2489, p. 2505 : 1994 Supp(1) 5CC 53; Agricultural
Market Committee v. Shalimar
Chemical Works Ltd., AIR 1997 SC 2502, p. 2507 : (1997) 5 5CC 516; BR. Enterprises
v. State of
Uttar Prdesh, AIR 1999 SC 1867, p. 1910 : (1999) 9 5CC 700; Kishan Prakash
Sharma v. Union
oflndia, AIR 2001 SC 1493, at 1502 : (2001) 5 5CC 212.
73 In Consumer Action Group v. State of Tamil Nadu, (2002) 7 5CC 425, at 439 : AIR
2002 SC 3302, the Supreme Court discerned the policy underlying the Act from the
Preamble and Objects andReasons of the Act. See also, Ashok Lanka v. Rishi
Dikshit, (2006) 9 5CC 90, para 36 : AIR 2006 SC 2382; Mahendra Babu Rao
Mahadik v. Subhash Krishna Kanitkar, (2005) 4 5CC 99, para 46:
AIR 2005 SC 1794.
thus it is clear from the above that the courts adopt a liberal stance in
the matter of brining out the legislative policy and guidelines with a view
to uphold delegation of legislative power. But there is a danger in this
approach. The process of liberal interpretation should not be carried so
far as to always trying to discover dormant and t legislative policy and,
thus, sustain an arbitrary power conferred on the Exertive. If this
happens, the doctrine of excessive delegation will become effective 4 the
Legislature will be enabled to confer unlimited power of delegated
legislator .74 Again following the principles laid down in Kunjabmu s
case, the Supreme Gurt in St. John s Teachers Training Institute, 75 held
that question whether a perjurer legislation suffers from the vice of
excessive delegation has to be examined in the context of subject matter,
the scheme, the provisions of statute including its preamble and the
facts and circumstances in the background of which statute is enacted.
74 Kishan Prakash Sharma v. Union oflndia, AIR 2001 SC 1493, at 1502 : (2001) 5
5CC 212.
75 St. John 5 Teachers Training Institute v. Regional Director, NCTE, (2003) 3 5CC
321, para 12, p.332 : AIR 2003 SC 1533. See also, Novva Ads v. Secretary,
Department ofMunicipal Administration and Water Supply, (2008) 8 5CC 42, para
38 and 40 : AIR 2008 SC 2941 ; State of TN. v. P.
Krishnamurthy, (2006) 4 5CC 517, para 15, 16, 22 & 27 : AIR 2006 SC 1622.
It was further held that there is a presumption in favor of the validity of

subordinate Jgislation and if it is open to two constructions, the one
which would make it valid has to be adopted and the legislation can also
be read down to avoid its being deader ultra vires.
Under the provisions of Central Educational institutions (Reservation in
admission) Act, 2006 power was delegated to the Union Government to
determine as to who shall be the other Backward Class. The challenge
was made to the Act on the ground that it suffers from the vice of
excessive delegation. Repelling the challenge the Supreme Court held
that there are sufficient guidelines to determine the backward class and
such delegation is constitutionally valid.76
Section 73 of the Stamp Act, 1899, as amended by A.P. Act 17 of 1986,
empowered any person authorized in writing by the Collector to have
access to documents in private custody or custody of a public officer and
to impound the same. It was held that section 73 as amended by A.P. Act
17 of 1986 suffered from the vice of excessive delegation as there are not
guidelines as to the persons who may be authorized by the Collector and
76 Ashoka Kumar Thakur v. Union ofindia, (2008) 6 5CC 1, para 212 and 230.
there is not requirement of reasons being recorded by Collector or person

authorized for his belief necessitating search and power of impounded
can be exercised without notice.77
Thus, whenever a statute is challenged on the ground of excessive
delegation, it becomes necessary for the court to examine the statute and
discern policy or guide lines for the exercise of power of delegated
legislation.
In a large number of cases the courts have considered the validity of
various dele gating provisions with reference to the doctrine of excessive
delegation. Some of these cases are noted below. The cases have been
classified from the point of view of the nature of the power conferred
under the following broad heads:
(i) skeleton legislation;
(ii) power of inclusion and exclusion;
(iii) power of modification of the statute; and
(iv) removal of difficulties; (v) power to impose tax.
77 District Registrar and Collector v. Canara Bank, (2005) 1 5CC 496, paras 54, 55 :
AIR 2005 SC186.
These categories are not mutually exclusive and have been adopted
because of their most common occurrence and for the sake of
convenience to facilitate analysis of cases. They are governed by the same
overall principle of excessive delegation.
The truth, however, remains that, in practice, difficulties arise in
applying the doctrine of excessive delegation to concrete situations and
by and large the judicial tendency is to uphold the power of delegated
legislation. It is only rarely that such, a power may be struck down on
the ground of excessive delegation. This will become clear from the
following discussion.
. (a) Skeleton Legislation
In Bagla v. State ofMadhya Pradesh, 78 the following two sections of the
Essential Supplies (Temporary Powers) Act, 1946, were questioned on the
ground of excessive delegation:
S. 3(1)The Central Government, so far as it appears to it to be
necessary or expedient for maintaining or increasing supplies of any
78 AIR 1954 SC 465 : (1955) 1 SCR 380. See also, Bhandara District Central Co-
operative Bank Ltd.v. State ofMaharashtra, (1993) Supp 3 5CC 259, Para 7 : AIR
1993 SC 59.
essential commodity, or for securing their equitable distribution and

availability at fair prices, may by order provide for regulating or
prohibiting the production, supply . . .; and
S. 6Any order made under section 3 shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than
this Act.
S. 3 is an excellent illustration of a provision empowering the executive to
promulgate delegated legislation not only to fill in the details in the
statute but even to decide questions of policy. A whole edifice of vast
administrative control over essential commodities has been built up by
the Executive through administrative legislation under 5. 3.
The Supreme Court declared both the sections valid saying that the Act
had sufficiently formulated the legislative policy, maintaining or
increasing supplies etc., in S. 3, and gave a clear and sufficient guidance
to the Government to exercise its power under the Section.
Justifying the broad delegation, the Court stated that the ambit and the
character of the Act is such that the details of that policy can only be
worked out by delegating them to a subordinate authority within the
framework of that policy.79 The effect of S. 6, the Court explained, was

certainly not to repeal or abrogate any pre-existing law. Its object was
simply to by-pass the law where it was inconsistent with the provisions of
the Act in question and the orders made under it.
The Couft argued further that even if it be conceded, for the sake of
argument, that an existing law stood repealed to the extent of its
repugnancy with the order made under S. 3, by implication, then the
repeal is not by an act of the delegate, but is by the legislative act of
the Parliament itself, as Parliament itself has declared in S. 6 that an
order made under section 3 shall have effect notwithstanding any
inconsistency in this order with any enactment other than this Act. 80 In
this way, the Supreme Court upheld a very broad delegation of power.
79 AIR 1954 SC 465 at 468 : (1955) 1 SCR 380; See also, C. Lingam v. Govt. ofindia,
AIR 1971 SC474, para 7 : (1970) 3 5CC 768. See also, Agriculture Market
Committee v. Shalimar Chemical Works Ltd., (1997) 5 5CC 516, para 24 & 26 : AIR
1997 SC 2502.
80 AIR 1954 SC 465 at 469 : (1955) 1 SCR 380.Similarly in A. V. Nachane v. Union
oflndia, AIR 1982 SC 1126 : (1982) 1 5CC 205, the Supreme Court upheld a
statutory provision in the L.I.C. Act, 1956 which provided that the rules made
under the Act shall have effect notwithstanding anything in the Industrial Disputes
Act or any other law.
There are a large number of other cases in line with the above judicial
approach. In Jjhatnagars & Co. v. Union of India, 81 was involved S. 3(l)(a)
of the Imports and Exports (Control) Act, 1947 authorizing the Central
Government to prohibit or restrict the import or export of goods of any
specified description by order. The statute is skeletal and gives no
indication as to what considerations and policies are to be kept in view
by the Government in controlling imports and exports. The whole
regulatory process over import and export of goods has been developed
by the Administration through delegated legislation under this statutory
provision. The Supreme Court upheld the statute as valid arguing that
the underlying policy was to be found in the preceding statute, the
Defense of India Act, 1939, whose provisions the statute i question
purported to continue.
It is, however, not clear as to how this relation between the old and the
new Acts was established by the Court. The only reference made to the
old provision by the Act in question was in S. 4 under which all orders
81 AIR 1957 SC 478, p. 485 : 1957 SCR 701. See also, Kashmir Singh v. Union
oflndia, (2008) 7 SCC 259; M.P. State Electricity Board v. Union of India, (2006) 10
5CC 736, para 59; Quarry Owners Association v. State ofBihar, (2000) 8 5CC 655,
para 36, 38 & 42 : AIR 2000 SC 2870.
made under Rule 84 of the Defense of India Rules, 1939 were to continue
in force so far as not inconsistent with the Act. It may also be noted that
the Defense of India Act was an emergency law and dealt not only with
imports and exports but also with a whole range of matters which
became relevant during the war emergency.
Further, the Defense of India Act was itself a skeletal piece of legislation.
The whole complexion of import and export control has changed in
Independent India and differs very much in details and fundamental
approach from what it was in the 1940 5. The control policies in the area
of import and export are developed by the Executive from time to time
and for this purpose the Act in question lays down no guidelines.
However, in support of the Courts decision it may be said that the
subject of import and export control is so variable in the modern world
that perhaps it is not possible for Parliament to lay down articulate
norms which could be valid for all time to come and, thus, broad powers
have to be left in this area to the executive.
In Makhan Singh v. State of Punjab,82 the Supreme Court upheld,

against the attack of excessive delegation, S. 3 of the Defense of India
Act, 1962. S. 3 empowered the Central Government to make rules, as it
appeal expedient to it, for Defense of India and maintenance of public
order and safety.
The All India Services Act, 1951 is an extremely brief statute of four
sections of which the key provision is S. 3 which authorises the Central
Government to make rules to regulate conditions of service in the All
India Services. Pending the making of the rules under the Act, the rules
existing on the date the law was enacted, were to be deemed to be the
rules made under the Act.
Undoubtedly, this was an extremely wide delegation, as the Parliament
had left the matter in the hands of the Government in its entirety
without laying down any policy. Yet the Supreme Court held the Act
valid, arguing strangely, that the fact that the existing rules were adopted
by the Act showed that the policy had been clarified as the existing rules
82 AIR 1964 SC 381, p. 400 : (1964) 4 5CC 797.
contained the policy.83 This means that the policy of the statute is found
in the rules made by the Executive. But such an argument is hardly
tenable. It does not seem to be correct to control the discretion conferred
under the Act through the rules made under a prior Act as the rules
could be changed at any time. Further, to treat the existing rules as
laying down the policy could result in the further argument that these
rules could not ever be changed by the rule-making authority because
changing the rules would be tantamount to changing the policy approved
by the Legislature, and in substance that view could result in very much
restricting the rule-making power. It could certainly not be the intention
of the Legislature to fossilize or stratify the existing rules once for all. 84
(b) Power of Exclusion and Inclusion
A common legislative practice is to confer power on the Government to
bring mdi- viduals, bodies or commodities within, or to exempt them
83 Garewal v. State ofPunjab, AIR 1959 SC 512, p. 517 : 1959 Supp(1) 5CR 792.
84 A few other cases on the point are: Izhar Ahmad v. Union oflndia, AIR 1962 SC
1052, p. 10671962 Supp(3) 5CC 235; Vasanlal Maganbhai v. Bombay, AIR 1961 SC
4 : (1961) 1 SCR 341; Raghubar Dayal v. Union oflndia, AIR 1962 SC 263 : (1962) 3
SCR 547; State ofNagaland v.
Ratan Singh, AIR 1967 SC 212 : (1966) 3 SCR 830.
from, the purview of a statute. Several formulae are in vogue for the
purpose.85
A usual legislative formula is to say that the Act applies to the items
mentioned in the schdule annexed but Government has power to alter
the schedule by adding thereto or removing therefrom some items. Thus,
the range of operation of the Act can be expanded or reduced by making
alterations in the schedule through delegated legislation. To some extent,
this provision involves delegation of power to modify the parent Act, but
invariably such a provision has been upheld as valid.
The Minimum Wages Act, 1948 has been enacted, as stated in its
preamble, to provide for fixing minimum wages in certain employments.
The Act applies to employments mentioned in the schedule, but
Government is given power to add any other employment thereto and,
thus, to extend the Act to that employment.
The Act lays down no norms on which Government may exercise its
power to add any employment to the schedule. Nevertheless, in Edward
85 Ashoka Kumar Thakur v. Union oflndia, (2008) 6 5CC 1, para 170, 295, 357 & 358;
Lohia Ma- chines Ltd. v. Union oflndia, (1985) 2 5CC 197, para 26 : AIR 1985 SC 421.
Mills Co. v. State of Ajmer, 86 the Supreme Court upheld the provision
arguing that the policy was apparent on the face of the Act which was to
fix minimum wages in order to avoid exploitation of labour in those
industries where wages were very low because of unorganized labour or
other causes.
(c) power to Amend Schedule the
In a number of cases, the power to amend the schedule has been upheld
because the policy to give guidance to the Government was discernible
from the Act.87 It is not unconstitutional for the legislature to leave it to
the executive to determine details relating to the working of taxation
laws, such as selection of persons on whom tax is to be laid, the rates at
which it is to be charged, in respect of different classes of Banat
88
goods
86 AIR 1955 SC 25 : (1955) 1 SCR 735.

87 Banarsj Das v. State of Madhya Pradesh, AIR 1958 SC 909, para 1 1 : 1959 SCR
427; Sable Waghire & Co. v. Union oflndia, AIR 1975 SC 1172, para 17 : (1975) 1
5CC 763; State of MadhyaPradesh v. Mahalaxmi Fabric Mills Ltd., AIR 1995 SC
2213 : 1995 Supp(1) 5CC 642. See also, J.K. Industries Ltd. v. Union oflndia, (2007)
13 5CC 673, para 130 131.
88 Banarasidas Bhanot v. State ofMadhya Pradesh, AIR 1958 SC 909 : 1959 SCR 427,
see also, Kishanlal v. State ofRajasthan, 1990 (Suppi) 5CC 42 para 4 : AIR 1990 SC
2269.
and the like. It was held in Banaras as Bhanot 89 that power conferred on
the Section state Government by Section 6(2) of the C.P. and Berar Sales
Tax Act, 1947 to amend the schedule relating to exemption is in
consonance with the accepted legislate tive practice relating to the topic
and is not unconstitutional.
The Punjab General Sales Tax Act, 1948 levied a purchase tax on goods
except the ns mentioned in the schedule annexed. The State Government
could add to, or *lete, any item from the schedule after giving three
months notice. This meant that 11 the Government added an item to the
schedule, it became tax exempt; if any item S excluded from the
schedule, it became subject to taxation. The Supreme Courted the
provision against challenge on the basis of excessive delegation on two
grounds:
(I) it is common to give to the Executive the power to amend schedules
and such power has been upheld in a number of cases;
(2) changes in the schedule could be made after giving three months
notice. This was a check on an arbitrary exercise of power. The
89 Babu Ram v. State ofPunjab, AIR 1979 SC 1475 : (1979) 3 5CC 616.
Government would give prior publicity of its intention to amend the

schedule and also give an opportunity to interested parties to make
representations against the proposed changes. In the case of a jemocratic
government, this procedure itself acts as a check on arbitrary exercise of
power. In this case, delegation of Legislative power was upheld because it
was subject to the procedural safeguard of three months notice.
A statute may clothe the Executive with the power to expand or restrict
the range of its operation through methods other than amending a
schedule. For example, the Essential Commodities Act, 1955, covers
certain specified commodities listed in the Act. It further empowers the
Central Government to declare any other commodity as an essential
commodity, thus, making the Act applicable to it. There is no differemcee of substance between this method and that of amending a
schedule.
In Mohmedalli V. Union of India,90 the Supreme Court upheld a provision
in the Employees Provident Funds Act, 1952, authorizing the Central
90 AIR 1964 SC 980 : 1963 Supp(1) 5CR 993.
Government to bring within the purview of the Act such establishments

as it might specify.
A case falling in the same category, but reaching a contrary result, is
Handed Dawakhana Waif. Union of lndia. 91 S. 3 of the Drugs and Magic
Remedies, (Objectionable Advertisement) Act, 1954 was in question. This
provision forbade an advertisement suggesting that a medicine could be
used for curing any venereal disease or any other disease spaced in the
rules.92 The Supreme Court held that no criteria, standards or principles
had been laid down in the Act for specifying any other ease in the rules
and so the power to make rules to that extent was held to be unguided
and uncontrolled and so invalid.
6. POWER TO EXEMPT
A statute may grant power to the Executive to exempt from its operation
any person, institution or commodity, as the case may be. The reason to
include an exemption clause in a statute is that because of the heavy
burden of work, the legislature is not able to devote enough time to
91 AIR 1960 SC 554 : (1960) 2 SCR 671.
92 AIR 1967 SC 691, para 21 : (1967) 1 SCR 15. See also, State Banks Staff Union
(Madras Circle) v. Union oflndia, (2005) 7 5CC 584, para 14 : AIR 2005 SC 3446.
consider in detail the hardships and difficulties which may arise as a

result of the enforcement of the statute. The fast-changing scenario of
economic, social order with scientific development spawns many
situations which the legislature possibly could not foresee, and,
therefore, the delegate is entrusted with power to meet such exigencies
in the height of the policy of the Act. In some cases, a situation may wise
where the provisions of the Act may result in great hardships to
individuals. The exemption clause helps in removing such hardships
without materially affecting the policy of the Act. 93
A typical provision runs as follows:
Notwithstanding anything contained in this Act, the Government may,
subject to such conditions as they deem fit, by notification, exempt any
land or building or class of lands or buildings from all or any of the
provisions of this Act or rules or regulations made thereunder.
[S. ii 3 of the Tamil Nadu Town and Country Planning Act, 1971] Such a
provision may be held to be invalid if the Act contains no policy,
93 Hindustan Paper Corporation Ltd. v. State of Kerala, AIR 1986 SC 1541, 1543 :
(1986) 3 5CC398; JAIN, CASES III, Ch. XVI. See also, State ofWest Bengal v. Rash
Bihari Sarkar, (1993) 1 5CC
479, para 21 : (1993) 1 JT 1.
guidelines or principles for the guidance of the movement s discretion to

exempt under this clause. For example, in parsuraman 94 the exemption
clause was characterized as unanalyzed, unlimited and arbitrary as the
Act did not lay down any principle or policy for the guidance of the
government s discretion to exempt.
The provision mentioned above has been held valid as the legislative
policy could be adhered from the Preamble, Objects and Reasons and
other provisions of the Act.95 The Court has observed in this connection:
. . . in spite of a very wide power being conferred on the delegate . . .
such a section would still not be ultra vires, if guidelines could be
gathered from the Preamble, Objects and Reasons and other provisions
of the Act and the Rules. In testing the validity of such provisions, the
courts have to discover, whether there is any legislative policy, purpose of
94 AN. Parasuraman v. State ofTamil Nadu, AIR 1990 SC 40 : (1989) 4 5CC 683.Also,
K.T. Moopil Nair v. State ofKerala, AIR 1961 SC 552 : (1961) 3 SCR 77; Kunj Behari
Butail
V. State ofHimachal Pradesh, AIR 2000 SC 1069 : (2000) 3 5CC 40.
95 ConsumerAction Group v. State ofTamil Nadu, AIR 2000 SC 3060 : (2000) 7 5CC
425.Also see, Inder Singh v. State ofRajasthan, AIR 1957 SC 510 : (1957) SCR 605;
Premium Granites V. State ofTamil Nadu, AIR 1994 SC 2233 : (1994) 2 5CC 691.
the statute or indication of any clear will through its venous provisions. If
there be any, then this by itself would be a guiding factor to be exercised
by the delegate. In other words, then it cannot be held that such a power
is unbridled or uncanalised. The exercise of power of such delegatee is
controlled through such policy.

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CHAPTER 3

question, and confers rule-making power on the Government, or on some

the challenge of socio-economic problems. j Legislature often finds it

the exercise by a subordinate agency of the legislative power

the subsidiary rules themselves which are made by the subordinate

As administrative lawyers, we are more interested in the technique,

4 Vasanlal Manganbhai v. State of Bombay, AIR 1961 SC 4, para 4, p. 7 : (1961) 1 SCR

The Imports and Exports (Control) Act, 1947 is a small piece of

Under this provision, the Central Government has built up a vast

Delegated legislation (in the second sense mentioned above) is designated

At times, a statute may use several terms to denote delegated legislation

under sections 121 to 124, distribution and allocation of work to be

under S. 80-J(7), the Central Government through a notification

s. 80-K speaks of the rules with reference to tax on dividend from

The Essential Commodities Act, 1955 uses three termsorder, notified

A number of factors have been responsible for the growth of delegated

independence, the Government is endeavouring to evolve a socialistic

The Legislature confines itself to laying down broad policies and

Administration rather than by legislators who are mostly generalists and

On Consultative Procedure, see, infra, Ch. 5.

that through experimentation the executive would be able to find the

contingencies and to facilitate adjustments that may be called for after

13 WADE AND PHILLIPS; CONSTITUTIONAL LAW 608 (1965).

be difficult to set out all the permutations in the statute.

3. it gives an advantage to the Executive, in the sense that a

delegated legislation was criticised as undemocratic, 17 because it is made

enhancement of powers of the Administration. Many a time, the

17 Lord Heart, The despotism

The Legislature often uses wide, subjectively worded, provisions giving

its powers. At any rate, there is widespread suspicion and apprehension

legislation to that of its control and safeguards. Accordingly, the question

At the point of delegation of power by the Legislature.

in 1547. Thereafter the Acts of Parliament delegated power to the crown

It is a well settled legal proposition by a catena of decisions that

Board v. Automobile Ply Ltd.24 declared invalid an order of Mister of Labor

24 (1969) 2 All ER 582 : (1969) 1 WLR 697.

In R. v. Lord Chancellor exp. Lightfoot, 29 an order by Lord Chancellor

purported to have retrospective effect in the absence of clear authority

some Acts have made provisions for consultations of interest. Sections

(1972) 1 All ER280.

35 R. v. Social Services Secretary exp. Association of Metropolitan Authorities, (1986)

substance of provision remains essentially unchanged in purpose and

There also prevails the doctrine of separation of powers in the U.S.A., as

doctrine of delegatus non potest delegare against delegation by the

Thus, pragmatic considerations have prevailed over theoretical objections

principle that authority granted by the Legislature must be restricted by

42 293 US 388, 434 (1935).

43 321 US 414 (1944).

excessive delegation of legislative power. Only in three cases of

unconstitutional if they feel that in a given case the delegation is too

47 National Cable Television Assn. v. U.S., 415 US 336 (1974).

The development of extent of delegated legislation in United States has

limitation to restrain Parliament from assigning power where it likes.

which differ from each other rather fundamentally- should be followed in

Administration. Therefore, if the courts head to find any restrictions on

question of limits subject which the Legislature in India should be

the power to effect modifications in a State law in its application to

The Delhi Laws Act case achieved two ends:

it legitimized delegation of legislative power by the Legislature to

it imposed an outer limit on delegation by the Legislature. No

The Court realized that, keeping the exigencies of the modern

The Indian Legislature cannot delegate unrestrained unanalyzed and

legislative power would