Vous êtes sur la page 1sur 14


(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 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 subject-matter, 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. 1 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

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.

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. 2 In Bourgeois v.
Ministry of Agriculture3 a ministerial order was held to be unlawjj on account of
conflict with EC treaty.
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 4
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 5 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 Board v. Automobile Ply Ltd.6 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.7 A provision of the prison Rules was
declared ultra vires because it authorized excessive interference with prisoner 5


Johnston v. chief Constable, (1986) 3 All ER 135 : (1987) QB 129 (ECJ).

(1985) 3 WLR 1027 : (1986) QB 716.
(1997) 2 All ER 779 : (1998) QB 575.
(1975) 3 WLR 865 : (1976) AC 609.
(1969) 2 All ER 582 : (1969) 1 WLR 697.
R. V. Inland Revenue Commissioner exp. Woolwich Eqitable Building Society, (1991) 4 All ER
92: (1990) 1 WLR 1400.

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.9 But the court normally construes, bye-laws
benevolently and upholds them if possible.10
In R. v. Lord Chancellor exp. Lightfoot, 11 an order by Lord Chancellor increasing
court-fee payable for litigation and requiring them to be paid by someone on in- come
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 with- out first registration with a statutory teaching council.12
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
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





R. v. Home Secretary exp. Leech (No. 2), (1994) QB 198 : (1993) 3 WLR 1125.
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).
Cinnamond v. British Airport Authority, (1980) 2 All ER 368 : (1980) 1 WLR 582. Also see, Percy
v. Hall, (1997) QB 924 CA.
(1999) 2 WLR 1 126 : (2000) QB 597.
Malloch v. Aberdeen Corp., 1974 SLT 253. Also see, R. v. Secretaryfor the Home Department exp.
Mundowa, (1992) 3 All ER 606 CA.
Allinghans v. Minister ofAgriculture and Fisheries, (1948) 1 All ER 780 DC. See also Black Pool
Corporation V. Locker, (1948) 1 KB 349 CA.

given, adequate time must be al4 for the response to proposals and product of
consultation must be taken into account when decision is made.14
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.15 A ban on oral 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. 16 Where a
Department failed to allow sufficient time it was held that there was no effective
The doctrine of severability has also been applied in the context of delegated legisolation. 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.18 The decision of such severance is
permissible only when after deletion the unlawful part of substance of provision
remains essentially unchanged in purpose and effect from what had been intended. 19
(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


R. v. North Devon Health Authority exp. Coughian, (2000) 2 WLR 622 : (2000) QB 213.
Agricultural Training Board v. Aylesbury Mushrooms Ltd., (1972) 1 WLR 190 : (1972) 1 All ER
R. v. Secretary ofState, Fxparte U.S. Tobacco International Inc., 1992 QB 53; see also The Northem Ireland Commission for Children and Young People v. Peter Ham, The Secretary of State,
(2007) NIQB 52.
R. v. Social Services Secretary exp. Association of Metropolitan Authorities, (1986) 1 WLR 1
(1986) 1 All ER 164.
Dunkley V. Evans, (1981) 1 WLR 1522 : (1981) 3 All ER 285.
DPP v. Hutchinson, (1990) 3 WLR 196 : (1990) 2 AC 783; R. v. IRC exp. Woolwich Building
Society, (1991) 4 All ER 92.

celebrated case of Yongstown & Tube Co. v. Sawyer,20 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.21 Besides, the U.S. Supreme Court has also invoked the 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.22
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.
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 Congrass 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


343 U.S. 579, 589 (1952); Baker v. Carr, 369 U.S. 186 (1962; Powell v. Mc Cormack, 395 U.S.
486 (1969).
Supra, Ch. i.

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.23 The 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
The working of the rule can be illustrated with reference to the following two cases.
(i) In Panama Refining Co. v. Ryan, 24 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.
iii) Yakus V. U.S.,25 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



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.
293 US 388, 434 (1935).
321 US 414 (1944).

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 objectivemaximum 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.
There are not many examples of the United States Supreme Court declaring Congressional 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.26 The exigencies of modem Government have persuaded the purts
to relent in their attitude towards delegation. The basic premise still remains that Congress 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 cornmentator has remarked that judicial language about standards is artificial. 27 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 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.



Besides Panama, two other cases are : Schechter v. U.S., 295 US 495 (1935); Carter v. Carter Coal
Co., 298 US 238 (1936).
LEG- ISLATIVE POWER, 47 Col LR 359 (1947); Lichter v. U.S., 334 US 742 (1948).

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.28
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.29 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.30 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.31
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



Robel, 389 US 258 (1967); JUSTICE HARLAN (Joined by JUSTICES DOUGLAS AND
STEWART) in Arizona v. California, 373 US 546 (1963).
National Cable Television Assn. v. U.S., 415 US 336 (1974).
FRANK FURTER, the public and its Government, 157 (1930).

tablished.32 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.33
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 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 Bihar34 that there could be no delegation of legislative power in indian
beyond conditional legislation-a concept referred to later.35 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 which differ from each other
rather fundamentally- should be followed in Indian?





97 (1841)
AIR 1949 FC 175.
See, Chapter 3 & 6.

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. 36 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 Governmint 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 Administration. Therefore, if the

Rajaram Patel v. Hon ble Speaker Lok Sabha, (2007) 3 5CC 184, para 720 : (2007) 2 JT 1.

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.37
(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 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
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 above-minted
provision. Seven Judges participated in the decision and seven opinions v delivered

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.

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
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 when- ever the
delegate did something wrong or foolish.
The other view which approximated to the American approach, and which in the- ory
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
constitution-makers 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.38
The specific provision involved in the instant case was held valid by a majority of
Judges subject to two riders:

that part of it was bad which authorised the Government to repeal a law
already in force in a Part C State;


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.

The Delhi Laws Act case achieved two ends:


it legitimized delegation of legislative power by the Legislature to

administrative organs;


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

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


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.

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,39 a provision relating to Chandigarh similar to the
one involved in the Delhi Laws Act case regarding Delhi. has been held valid.


AIR 1990 SC 560 : 1989 Supp(1) 5CC 430; JAIN, CASES, I, 72.