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Table of Contents

Introduction ..................................................................................................................................... 3
Laissez faire ................................................................................................................................ 3
Drawbacks............................................................................................................................... 3
Social welfare state ..................................................................................................................... 3
Administrative Law .................................................................................................................... 4
Function .................................................................................................................................. 4
Definition ................................................................................................................................ 5
Principles of Constitutional Law and their impact ......................................................................... 5
Constitutional Law and Administrative law ........................................................................... 5
Rule of law .............................................................................................................................. 5
Separation of powers............................................................................................................... 7
Classification of functions .............................................................................................................. 8
Terminological in exactitude .................................................................................................. 9
Identification of a legislative order ......................................................................................... 9
Delegated Legislation ................................................................................................................... 11
Reasons for growth of delegated legislation ............................................................................. 12
Need for safeguards .............................................................................................................. 12
Special forms of delegated legislation ...................................................................................... 18
(a) Skeletal Legislation .................................................................................................... 18
(b) Power to include ......................................................................................................... 19
(c) Power to exempt ......................................................................................................... 19
(d) Power to modify the statute ........................................................................................ 19
(e) Power to amend schedule ........................................................................................... 19
(f) Territorial extension of statute ....................................................................................... 19
(g) Applying provisions from another Act with modifications ........................................ 20
(h) Henry VIII clause ....................................................................................................... 20
(i) Power of taxation ........................................................................................................... 21
(j) Delegation to municipal bodies ...................................................................................... 21
Conditional Legislation ............................................................................................................. 22
Distinction between Delegated Legislation .......................................................................... 23
Doctrine of excessive delegation .............................................................................................. 23
Judicial Control over Delegated Legislation................................................................................. 24
Introduction
Laissez faire
State was initially organized on the basis of Laissez faire [Lesser Control]. They were also called
Law and Order State or Police State. It emphasized on: -
 Individualism
 Individual enterprise
 Self-help.
Such a State was characterized by minimum government action, maximum free enterprise and
contractual freedom.
The role of the State was ‘negative’ in nature. Its functions were limited to: -
 Defending the territory from external aggression
 Maintenance of law and order within the territory
 Dispensation of justice
 Collection of taxes for the above mentioned tasks
Management of social and economic life was not considered to be the responsibility of the state.

Drawbacks
The laissez faire doctrine resulted in Human misery. This was due to the reason that: -
 Bargaining position of every person is not equal
 Uncontrolled contractual freedom led to exploitation of weaker sections

Social welfare state


The drawback of laissez faire lead to the growth of a political dogma of ‘collectivism’.
Collectivism favored state intervention in, and social control of individual enterprise. That is the
State started to act in the interest of social justice; it assumed a ‘positive role’. It laid emphasis
on the role of the state as a vehicle of socio-economic regeneration and welfare of the people.
The emergence of social welfare state has led to State activism i.e. a phenomenal increase in the
area of state operations. The functions of the modern state can be broadly placed into five
categories: -
 State as protector
 State as provider
 State as entrepreneur
 State as regulator
 State as arbiter
State activism has inevitably lead to the State assuming more powers in the quest of improving
the physical, moral and economic welfare of the people. This has led to extension in range of
functions for all the branches of the state. The largest extension in depth and range of functions is
at the executive-cum-administrative organ.
The hegemony of the executive has now become an accepted fact; the administrative organ does
a wide range of functions such as: -
 Legislative: The legislation usually lays down the policy and lets the executive fill in the
details, this primarily known as delegated legislation has assumed more importance
(qualitatively and quantitatively) than even the legislation enacted by the legislature.
 Adjudicatory: It has acquired not only the power to adjudicate over not only between
itself and private individuals but also between individuals per se, and thus has emerged a
plethora of tribunals.
 Discretionary: It has also assumed a wide range of discretionary powers with regard to
licenses, permits etc.
The assignment of such wide range of powers has become a necessity as most of the
contemporary complex socio economic are best tackled by the administrative process rather than
traditional legal and judicial processes.
The Legislative body is best suited for determining the direction of major policy but it would not
be suitable for determining minute details primarily due to: -
 Lack of time
 Lack of expertise
 Traditional process would be inflexible to meet contingent or unforeseen circumstances
 Preventive administrative action is better
Administrative adjudication has been preferred primarily due to: -
 It could be disposed expeditiously
 Less formality and technicality
 Requirement of specialized skills for determination of disputes

Administrative Law
Function
The modern administrative law, in a welfare state has been assigned with more and more power
due to the reasons we discussed above. This increase in power clothes the administrative organ
with the capacity to impinge on individual rights. It is the demand of prudence that when
sweeping powers are granted on administrative organs, effective control mechanisms be also
evolved so as to ensure that the officers do not use these powers in unwarranted manner.
It is the function of administrative law in a democratic society to draw a fine balance between the
conflicting claims of the individual and the administration. It seeks to readjust the relationship
between public power and individual rights. It balances control and efficiency.
In administrative law, inevitably the private party is confronted by the agency of the government
endowed by all the prestige power and resources enjoyed by the possessor of sovereignty. The
starting point is the basic inequality of parties. The goal of administrative law is to redress this
inequality of the parties. The goal of administrative law is to redress this inequality – to ensure
that, as far as possible, the individual and the state are placed on a plane of equality before the
bar of justice.1
Administrative if not carried out efficiently weaken the government. Though efficiency of
administration though desirable is not the only yardstick, the achievement of efficiency must be
in consistent with attainment of justice to the individual.
Vast powers of administration could either lead to a welfare state or a totalitarian regime,
depending on how it is controlled and effectuated.

Definition
Jennings
Dicey
Wade and Phillip

Principles of Constitutional Law and their impact


Constitutional Law and Administrative law
There is deep, intimate and abiding relationship between Constitutional law and Administrative
law. The Constitutional law of a country affects the complexion of administrative law.
While strict demarcation between Constitutional law and Administrative law is not possible, still
there exists an essential difference between the two: -
Constitutional law Administrative law
 Deals mainly with the structure  Mainly deals with administration vis-
organization powers and functions of à-vis individual. Concern is more
all three organs of the state about exercise of statutory power of
administrative authority rather than
organization
 They deal with powers and function of government
 Function of both is to diffuse powers of the state and control them
 Both are branches of public law and supplement each other
Rule of law
Rule of law has a number of different meanings and corollaries. Its primary meaning is that
everything must be done according to law. Applied to powers of government it requires that
every government authority which does something which would otherwise be wrong or infringes

1
Schwartz, Administrative law
a man’s liberty, must be able to justify its action as authorized by law – and in nearly every case
it will mean authorised directly or indirectly by an Act of Parliament.
Dicey defined Rule of law as ‘the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness of
prerogative, or even wide discretionary authority on the part of the government.’ Dicey was of
the opinion that wherever there is discretion there is room for arbitrariness which led to
insecurity of legal freedom of the citizens. So according to Dicey the three elements for rule of
law was: -
 1
 2
 3
Dicey vehemently criticised the system of Droit Administratif (Counseil d’Etat) prevailing in
France. Under that system there were separate administrative tribunals for deciding cases
between the government and the citizens, and the officials in their official capacity were
protected from the ordinary law of the land and from the jurisdiction of the ordinary courts, and
were subject to official laws administered by official bodies.
Dicey characterised the French system to be despotic and one designed to protect the guilty
administrative officials. The idea of having separate bodies to deal with disputes in which the
government is concerned, and keeping such matters out of purview of the common courts
asserted Dicey, was utterly unknown to the law of England.
Dicey has been criticised for being factually wrong in his analysis of the position in England as
he ignored the privileges and immunities enjoyed by the Crown, and also ignored many statutes
which conferred discretionary power on the executive which could not be called into question in
ordinary courts. Also, he misunderstood and miscomprehended the real nature of French Droit
Administratif.
The truth is that in many aspects the Droit Administratif has been found to be more effective in
controlling the administration and protecting individual rights. The real test of the legal system is
not whether courts decide all controversies or not, but whether is effectively controls
administrative powers and whether it provides an effective redressal mechanism to the individual
in case he feels aggrieved by administrative action.
Dicey deprecated administrative law as being inconsistent with the rule of law, but it has now
developed into a fairly well defined system in every country. Another defect of Dicean analysis
has been his characterisation of discretionary powers as being incompatible with rule of law.
Dicey insisted on the absence of not only ‘arbitrary’ but even of ‘wide discretionary’ powers. But
exigencies of modern government make wide discretionary power inescapable. If therefore rule
of law negates wide discretionary powers, then no modern democratic society has rule of law.
Rule of law
 Administration does not enjoy any power outside the law
 Rule of law is associated with the supremacy of courts
 Distinction to be drawn between arbitrary powers and discretionary powers
 Administrative law seeks to explore limitations on administrative power.
Growth of administrative law Incomplete

Separation of powers
If the rule of law doctrine enunciated by Dicey affected the growth of administrative law in
Britain, the doctrine of separation of powers was a principal barrier to the development of
administrative law in United States. The truth is while doctrine of separation has affected the
character of the American administrative law, the doctrine itself has been effected by the newly
emerging trend in favour of administrative law.
The doctrine of separation of powers is traceable in its modern form to the French political
philosopher Montesquieu, emphasizing the mutual exclusiveness of the three organs of the
government. The main idea is that each of these organs should exercise only one type of function
and there should not be concentration of all the functions in one organ as it will pose a threat to
personal freedom.
Administrative law and separation of powers doctrine are somewhat incompatible, for modern
administrative process envisages mingling of various types of functions at the administrative
level. Administrative process arises because new demands are made on the government to solve
many complex socio-economic problems of the contemporary society. For practical reasons
therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of
administrative process.
The significant breach in the doctrine occurred when the courts conceded that legislative power
could be conferred on administrative authorities, and thus the system of delegated legislation
came into vogue. But in a bid to reconcile the separation of powers doctrine with the new
institution, the Courts laid down that Congress cannot confer an unlimited legislative power on
an administrative authority, that the Congress must not give up its position as primary legislator
and the Congress should therefore lay down the policy which the delegate is to follow while
making rules. This lead to the emergence of doctrine of excessive delegation.
A further encroachment was made in the doctrine of separation of powers when adjudicatory
powers came to be conferred on the executive and some administrative tribunals.
A far more serious dilution occurred when autonomous statutory regulatory commissions
endowed with triple functions, legislative administrative and adjudicatory, along with powers of
investigation and prosecution, were established to regulate new areas of activities.
As Justice Jackson points out, the administrative agencies ‘have become a veritable fourth
branch of government, which has deranged our three branch legal theories much as the concept
of a fourth dimension unsettles out three-dimensional thinking.2

2
Federal Trade Comm. v. Ruderoid Co., 343 U.S. 470 (1952)
So far the vesting of three types of function in one body has not been held to be unconstitutional.
With the emergence of such bodies, the view has come to be advocated that the danger of
tyranny or injustice (which the theory of separation of powers seeks to avoid) lurks in
‘unchecked’ power not in ‘blended’ power and, therefore, the more important thing is to have
checks and balances.
The separation doctrine though not applicable in its strict form to contemporary government,
nevertheless, is not entirely redundant. Its object is the preservation of safeguards against
capricious exercise of power; and incidentally it lays down the broad lines of an efficient
division of functions. Its logic is the logic of polarity rather than strict classification… the great
end of the theory is, by dispersing in some measure the centres of authority to prevent
absolutism.
USA Administrative Procedure Act, 1946. Freedom of Information Act, 1967. Sunshine Act,
1976. Administrative Conference of United States, made by a Congressional Act in 1964.
Droit Administratif

Classification of functions
An administrative lawyer has at times to classify action taken by the Administration into three
categories: -
 Legislative
 Administrative
 Adjudicative or quasi-judicial
There are objections to such classifications as it is usually artificial or too difficult to make such
a classification. But the fact remains that in the present state of administrative law such labelling
exercise, as much of the law relating to executive government is still based on such
classification.
Distinguishing between legislative function on one hand and administrative/quasi-judicial
function on the other hand assumes practical importance for the following reasons: -
 Publication: - Usually a legislative order is required to be published in an official
gazette, but not an administrative order. The reason being the former is of a general
nature and applies to many persons and hence should be widely known, but the latter
applies to a specified individual or individuals and therefore is enough if it is served on
the affected persons.
 Procedure: -Different procedures may have to be followed by the administration in the
making of orders of different kinds. There arise procedural differences depending on the
nature of the order in question. For making a quasi-judicial order, the administration must
follow the rules of natural justice, even if when the specified statute under which the
action in question is being taken is silent on the point. But, in exercise of legislative
power, the administration need not follow principles of natural justice, it need only
follow the norms as stipulated in the relevant statute, there being no obligatory implied
procedural requirements to be followed in the case.
 Judicial Review: - The scope of judicial review is narrower in respect of legislative
function than in the case of administrative or quasi-judicial function. For example, while
mala fides can may be pleaded as a ground for challenging administrative action, it is
doubtful whether the same ground may be invoked to challenge a legislative order.
 Sub-delegation: -Difference between legislative and non-legislative functions also may
become meaningful when questions of sub-delegation of powers arise.
Legislative activity whether plenary or subordinate is not subject to the rules of natural justice.

Terminological in exactitude
The term ‘administrative’ is used in two sense: -
 On a broad sense the expression administrative law denotes the law pertaining to
administration and denotes the whole gamut of powers exercised by administration. It
denotes all kinds of bodies participating in the administrative process (other than the
legislature and courts) and all kinds of functions discharged whether administrative,
legislative, quasi-judicial or of any other kind.
 In a narrow sense, it denotes only a limited category of functions discharged by the
administration – functions in juxtaposition to legislative and quasi-judicial functions

Identification of a legislative order


The present day administrative law suffers from conceptual confusion. The terms legislative, and
administrative and quasi-judicial are used constantly, but none of these concepts is susceptible of
an articulate definition. One of the most difficult problems of administrative law is to identify the
nature of a function discharged by the administration. There is really no bright line of distinction
between these concepts.
Howsoever the definition of any of these concepts be formulated, it either excludes, or includes,
something which ought to be included, or excluded, from the purview of that concept. Whatever
test is propounded to identify these concepts, there will always be some exceptional situations
falling on the other side of the line.
How to distinguish ‘legislative’ from other types of functions? When a statute confers power on
the administration to make rules, regulations, bye-laws etc., it is easy to identify them as
delegated legislation. But how to identify delegated legislation when these terms are not used?
Are such functions as price-fixing, wage-fixing, fixing tax rates legislative in nature?
No articulate norms have been evolved so far to distinguish between legislative and non-
legislative functions. Difficulties in characterisation arises due to: -
 Many times administrative bodies perform and exercise mixed functions.
 Statute may give power to administration to make orders for certain purposes. The orders
may be legislative or non-legislative.
In the United States, two tests have been propounded to identify legislative functions.
 Generality: -One test depends on the element of applicability; i.e. legislative function is
normally directed towards the formulation of requirements having a general application
to all members of a broadly identifiable class. As against this, an administrative decision
is one which applies to a specific individuals or situations. Similarly power to take
specific action is administrative. Power to take general action is legislative.
 Futurity: -Rule prescribes future patterns, while an administrative decision determines
liabilities on the basis of present or past facts.
When applying the generality there could be a possibility that statements of particular
applicability, but having future effect, may be characterised as legislative function. And vice
versa.
Both these tests are workable in majority of situations, though there may arise some situations
where the test may not work. These tests are only a broad test which may not necessarily be true
or decisive always, and other considerations may be taken into account by the court to decide the
nature of the particular administrative act.3
In England Committee of Minsters Powers evolved a definition which involved both these tests
which is ‘legislation is the process of formulating a general rule of conduct, without reference to
particular cases, and usually operating in futuro; administration is the process of performing
particular acts, of issuing particular orders or of making decisions which apply general rule to
particular cases.’
Administrative act cannot be exactly defined, but it includes the adoption of policy, the making
and issue of specific direction, and the application of a general rule to a particular case in
accordance with the requirements of policy expediency or administrative practice.
With the help of the above mentioned test it is possible to distinguish between legislative
function from any other kind of function in a large number of situations. But there may be cases
where the test may breakdown for it may not be easy to distinguish ‘general’ from ‘particular’.
The test of generality of an order is not very articulate and gives enough scope for judicial policy
to have a play. The distinction between what is general and what is particular in its application is
in itself only a matter of degree.
The Court has pointed out that a particular difficulty arises in characterising the functions of
administrative agencies because their functions do not fall in watertight compartments. This
difficulty might be resolved by the court considering whether the agency performs a
predominantly legislative or administrative or quasi-judicial function. But after analysis of the
position the court refused to pronounce a final verdict in the case.4

3
K.I. Shephard v. Union of India, AIR 1988 SC 686
4
Express Newspapers Ltd. v. Union of India, AIR 1958 SC 758
The distinction between legislative and administrative is disappearing into an illusion with the
proliferation of delegated legislation and so it is difficult in theory and impossible in practice to
draw a distinct line between legislative and administrative function.
It is however emphasised that the courts should be wary of unduly extending the frontiers of
legislative function, as this concept is often invoked by the administration to deny hearing to
affected persons. The more the concept of legislative function expands the less scope there will
be to invoke procedural safeguards for the affected interests. In this way much of the gains made
by expanding the concept of natural justice will be neutralized correspondingly.
Price fixing has been considered as legislative function.5 It may also be emphasized that even
though an order in its final form may seem to be legislative, it may still be preceded by some
kind of adjudicatory process. Certain facts may have to be determined by the administration
before making the order. For example, it is possible to argue that in price-fixation, two major
considerations are: cost of production to a producer and his margin of profit, both of these seem
to be adjudicative facts and fairness demands that these facts ought not to be decided by the
concerned authority without giving a hearing to the producer as these facts directly pertain to
him. There seems to be no reason to deny application of natural justice to pre-order stage in such
a case.

Delegated Legislation
A trend very much in vogue today in all democratic countries is that only a relatively small part
of the total legislative output emanates directly from the legislature. The bulk of legislation is
promulgated by the executive and is known as delegated legislation.
Delegated legislation has been defined by Salmond as ‘that which proceeds from any authority
other than the sovereign power and is therefore dependent for its existence and validity on some
superior or supreme authority.
Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but
inevitable infringement of separation of powers. But in reality it is no more difficult to justify it
in theory than it is possible to do without it in practice. There only a hazy borderline between
legislation and administration, and the assumption that they are two fundamentally different
forms of power is misleading. There are some obvious general differences. But the idea that a
clean division can be made (as it can more readily be made in the case of judicial power) is a
legacy from an older era of political theory.
A subordinate legislation, when validly framed becomes a part of the principal Act. A delegatee
must act within the four corners of the statute. Rules cannot be made to supplant the provisions
of the delegated Act, but to supplement it. What is permitted is the delegation of ancillary or
subordinate legislative functions, which is fictionally called, a power to fill up details.6

5
Initially was considered to be judicial in nature but judicial view underwent a change in SI. Syndicate Case, AIR
1975 SC 460. For further information refer Pages 58 onwards (Ed.8)
6
St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321
 The rules which are not issued under any statutory provision and also are not notified in
the Official Gazette are not statutory rules.7
 An Act is usually preceded by the ‘object and purpose’ clause. Its absence in the
regulation or the later amendments introduced in it only adds to the difficulties of the
court in properly construing the provisions of the regulations dealing with complex
issues. It is high time to change the practice and include ‘object and purpose’ clause
before delegated legislation also.8
 Deeming or legal fiction can only operate prospectively not retrospectively.9

Reasons for growth of delegated legislation


Delegated legislation is a method to economise legislative time. ‘The truth is if the Parliament
were unwilling to delegate law making power, Parliament would be unable to pass the kind and
quantity of legislation which modern public opinion requires. The Practice of empowering the
executive to make subordinate legislation within the prescribed sphere has evolved out of
practical necessity and pragmatic needs of modern welfare state. The system of delegated
legislation is both legitimate and constitutionally desirable for certain purposes, within certain
limits, and under certain safeguards.’10
 Pressure on Parliamentary time
 Delegated legislation has the advantages of flexibility, elasticity, expedition and
opportunity for experimentation.
 Technically complex matters

Need for safeguards


In spite of its usefulness and indispensability, delegated legislation suffers from several defects
as well. To some extent, it does involve abandonment of its functions by the legislature and
enhancement of powers of administration. Power flows from the legislature to the bureaucracy.
The question today is not whether there should be delegated legislation, but subject to what
safeguards it should be resorted to. The controls over delegated legislation operate on two levels:
-
 At the point of delegation of powers. The question here is how much power should the
legislature be allowed to delegate
 Control mechanism operates at the point of exercise of delegated legislative power by the
administrative. The question here is what mechanism should be put into being so as to
minimize the hazards of the technique of delegated legislation.
At both levels the controls are supplementary to each other. The efficacy of control in second
stage to a large extent depends upon the first.

7
K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515
8
Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, (2010) 7 SCC 449
9
Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, (2010) 7 SCC 449 (Check)
10
Committee for Ministers Powers Report
United Kingdom
In the U.K. since the Parliament is sovereign, there are no restrictions on the capacity of the
Parliament to confer its law making power to an administrative agency.

United States
In the United States the Courts have raised two theoretical objections against delegation of
legislative power to the executive, they are: -
 Based on the doctrine of separation of powers
As already discussed the exigencies of modern government make it practically impossible not to
have delegation of legislative power. Hence pragmatic considerations have prevailed over
theoretical objections and in course of time the courts have relaxed the rigours of separation of
powers and permitted broad delegation of legislative power subject to the rider that Congress
itself should lay down standards or policy for guidance and that delegation should not be vagrant
and uncontrolled, and that congress should not give a blank cheque to the executive to make any
rules it likes; for to do so would amount to abdication of its functions by Congress.
To uphold the legislation there is a need to discover in terms of the Act a standard reasonably
clear whereby the discretion must be governed. The principle that authority granted by the
legislature must be restricted by an adequate standard serves the theory of separation of powers
by ensuring that fundamental policy decisions must be made by the legislature and not by
officials. Prescribing legislative policy is regarded as ‘essential legislative function’ and this
function must be discharged by democratically elected legislature itself; it ought not be left to
any politically unresponsive delegate.
Only in three cases of significance has the delegation held to be excessive so far. (Panama,
Schechter Carter Coal Co.)
 Based on the doctrine of delegates non potest delegare
The theory has been diluted.

India
The Federal Court under the Government of India Act, 1935 had held that there could be no
delegation of legislative power in India beyond conditional legislation.11 After Independence the
question was raised whether the Parliament in independent India should be restricted to this form
of delegation, or should it be given greater freedom. The Constitution of India did not provide
any clear guidance on this point as there is nothing in the Constitution either expressly
prohibiting or permitting the legislature in the matter of delegation. Therefore, if the Supreme
Court had to find any restriction on the legislature in the matter of delegation it had to be on the
basis of some general theories and principles of constitutional law, but not on the basis of any
specific provision in the Constitution. The Supreme Court was faced with all these questions in
the case In re Delhi Laws Act, and the Court opted for the American Model.

11
Atindra Nath v. Province of Bihar, AIR 1949 FC 175
In Re Delhi Laws Act, 1912 (AIR 1951 SC 332)
There were a few Part C States under the direct administration of the Central Government,
without having a legislature of their own. Parliament had to legislate for these States. As it was
very difficult for Parliament to find the time to do so in view of its other manifold engagements,
Parliament enacted a law, the Part C States (Laws) Act, 1950.
The said Act authorised the Central Government to extend to any Part C State, with such
restrictions and modifications as it thought fit, any amendment in force is a Part A State, and
while doing so it could it could repeal or amend any corresponding law (other than a Central
law) which might be operative at that time in the Part C State.
Undoubtedly it was a sweeping delegation. The Government could extend to a Part C state any
law made by the State Legislature, at any time (not only laws prevailing in 1950 but even those
made subsequently), and even modify the law before extension. And if there was already a law in
force in Part C State on the point, it could either be repealed or modified when the law was
extended.
The Supreme Court was called upon to adjudge the validity of the provisions by a Reference
under Article 143. A Seven Judge Bench of the Supreme Court participated in the decision and
seven opinions were delivered. The Supreme Court concluded that: -
 The legislature must normally discharge its primary legislative function itself and not
through others
 Once it is established that it has sovereign powers within a certain sphere, it must follow
as a corollary that it is free to legislate within that sphere in any way which appears to it
to be the best way to give effect to its intention and policy making in a particular law, and
it may utilize any outside agency to any extent it finds necessary for doing things which it
is unable to do itself or finds it inconvenient to do. In other words, it can do everything
which is ancillary to and necessary for the full and effective exercise of its power of
legislation.
 It cannot abdicate its legislative functions, therefore while entrusting power to an outside
agency, it must see that such agency, acts as a subordinate authority and does not become
a parallel legislature.
 The doctrine of separation of powers and the judicial interpretation it has received in
America enables the court to check undue and excessive delegation but the courts of this
country are not committed to that doctrine and cannot apply it in the same way it is
applied in America. Therefore, there are only two main checks in this country on the
power of the legislature to delegate these being its good sense and the principle that it
should not cross the line beyond which delegation amounts to abdication and self-
effacement.
By a majority a specific section in question was held to be valid subject to two riders: -
 That the part of it was bad which authorised the government to repeal a law already in
force in Part C state.
 The power to effect modifications in 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: -
o It legitimized delegation of legislative power by the legislature to administrative organs
o It imposed outer limit on delegation by the legislature
The Supreme Court also observed that the two theoretical objections to delegation in United
States do not hold good.
 Theory of separation of powers: - The theory of separation of powers does not operate
in the area of legislative executive relationship in our constitutional scheme.
 Delegates non potest delegare: - This maxim was rejected by the Judges as being “not a
sound political theory”.
The majority developed an alternative theory, that since the Legislature in India functions under
a written constitution, it cannot enjoy the same freedom as the British Parliament in the matter of
delegation. The result of the approach is that while the legislature can delegate legislative power,
the final say in this respect rests with the courts. If the courts feel that unduly large amount of
legislative power is being conferred on an administrative authority in any specific instance
without adequate checks, it can cry a halt on the process of delegation.
It may be interesting to note that both in America and India, the doctrine of excessive delegation
is purely a judge-made doctrine emanating from some of the basic postulates on which a written
democratic constitution is based. The American and Indian doctrines though practically
congruent are yet based on different postulates. The American doctrine is based on the theory of
separation of powers, while the Indian doctrine is based on the theory of constitutional trust in
the legislature.
Further developments
While the question seemed to be settled in the Delhi Laws Act, and a few subsequent cases, it
was again opened in Gwalior Rayon12. The point of debate in the case was whether the doctrine
of excessive delegation be maintained, modified or given up.
Mathew, J., propounded a theory that so long as Parliament retains the power to repeal the
delegating provision, it retains ultimate control over the delegate and does not abdicate the
legislative function. Therefore, there should be no objection to delegation howsoever broad its
extent. The key to his thinking is to be found in his following observation in his opinion in the
case: “the hunt by court for legislative policy or guidance in the crevices of a statute or the nook
and cranny of its preamble is not am edifying spectacle.
It is thus clear the Mathew, J., was pleading for dilution of doctrine of excessive delegation as he
felt dissatisfied at the flexible way the doctrine had been applied hitherto by the Supreme Court,

12
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
for, in order to uphold legislation against argument of excessive delegation the Court had gone to
the farthest limit in some cases to find legislative policy underlying the statute in question. The
whole judiciary thus smacked of artificiality.
But the question is whether this should lead to applying the doctrine in a more meaningful
manner or abolishing the doctrine itself.
The majority of the Court did not agree with Mathew, J., approach. His view would have meant a
complete emasculation of the doctrine of excessive delegation; it would be tantamount to saying
that a legislature can delegate as much legislative power as it desires without any semblance of
restriction, rejecting this view the majority pinpointed dangers which are inherent in this
approach.
The weakness in Mathew. J.’s approach is his lack of appreciation that after Parliament has
delegated power, it cannot, in a practical sense, control it through its power of repealing the law.
Because of party system, to-days legislature passes no law without the initiative and consent of
the executive and it is highly improbable that the executive would ever as the legislature to
repeal a provision delegating legislative power to itself on the ground that delegated power has
been improperly used by the delegate.
Practical application of doctrine of excessive delegation
In innumerable cases broad delegation of legislative power has been upheld. On the whole, the
courts adopt a tolerant, or rather ambivalent, attitude in this matter. The courts do permit a good
deal of latitude to the legislature in the matter of delegation of legislative power, hardly ever
demanding that the legislature lays down policies or standards in the legislation in concrete terms
to guide the delegate in making delegated legislation.
While the Supreme Court invariably reiterates the doctrine that the delegation of legislative
power is valid only if the delegating statute specifies the policies subject to which the delegate is
to exercise its rule-making powers, in actually applying the doctrine to any specific legislation,
the Court has diluted its efficacy a great deal and exhibited anxiety to uphold the legislation
against challenge on the ground of excessive delegation.
To uphold broad delegation against excessive delegation, the Supreme Court adopts several
strategies. Some of them are: -
 On Grounds of Policy
o The Court finds principles and policies within or outside the statute, subject to
which delegation is made. Thus, the Court has upheld very broad and general
delegation treating vague statements in the law to amount to adequate policy
statement. The Supreme Court has sought to read policy in: -
 the preamble to the Act in question
 the delegating provision itself
 any other provision of the concerned statute
 the scheme or subject matter of the concerned statute

at times even in the previous statute, which the statute in question may
have repealed or replaced.13
o At times the Supreme Court has itself supplied or rationalized the policy when the
same was not discernible from the face of the statute, and to do so has gone into: -
 the legislative history of the legislation14
 affidavits filed by officers in support of the impugned Act or any other
material
o At times the Supreme Court has met the demand for more definite policy
statement by the argument that the subject-matter of the legislation is such that no
more guidance could possibly be given to the delegate
o At times it treats the purpose for which the delegated legislative power is
delegated as the policy underlying the Act
 On Grounds of Procedural Safeguard
o Courts uphold the delegation if it has adequate safeguards. The argument is that
with adequate procedural safeguards woven in the statute, uncontrolled legislative
power has not been delegated and it makes the delegation valid.
 Objective of the Act
o The Court upholds broad delegation of powers by resorting to the argument that
in socio-economic and welfare legislation seeking to promote the directive
principles of state policy a generous degree of latitude ought to be permissible to
the legislature in the matter of delegation.15
The Court has also relied on the ‘laying’ requirement to ward off challenge of excessive
delegation.16 These rulings raise some serious questions, in practice the ‘laying’ requirement
does not lead to any effective Parliamentary supervision (other than that of the affirmative type).
Further, it has become a standard legislative practice in India to include a standard ‘laying’
formula in each and every statute enacted. Therefore, if the ‘laying’ procedure comes to be
regarded as an argument to uphold broad delegation of powers, then the doctrine of excessive
delegation will be completely annihilated and all restraints on the Parliament in the matter of
delegation will become inefficacious.
In the case of Quarry Owners Association17 the Supreme Court has observed that where any rule
or notification or rule before the legislature, it comes under the scrutiny of the House, the House
gets the jurisdiction over the same, each member subject to procedure gets the right to discuss
the same. This positive control of the House over the executive makes even mere laying to play a
vital role.
In effect at present the doctrine of excessive delegation has more of symbolic value or is of
formalistic nature. Rarely have legislations been struck down on ground of excessive delegation.
The Supreme Court has observed that even faint glimmering of policy is sufficient to uphold a

13
See, Bhatnagars & Co. v. Union of India, AIR 1957 SC 478
14
Delhi Cloth and General Mills Co. Ltd. v. Union of India, AIR 1983 SC 512
15
Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350
16
Lohia Machines Ltd. v. Union of India, AIR 1985 SC 512
17
Quarry Owners Association v. State of Bihar, (2000) 8 SCC 655
law against the challenge of excessive delegation. Reasons for this permissive and flexible
judicial approach could be that courts realise that they need to apply the doctrine in a pragmatic
manner as opposed to rigid, theoretical and within doctrinaire limits. Courts do not wish to
invalidate socio-economic legislation, lest they should be dubbed reactionary and conservative
and stalling social and economic progress.
An unfortunate result of the permissive judicial attitude has been that the legislature never cares
to formulate principles and policies underlying a legislation with any specificity even when it
may be possible to do so.
Propositions which can be drawn from case laws

 The question whether any particular legislation suffered from excessive delegation, has to
be determined by the court having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble and the facts and circumstances and the
background on which the statute is enacted.18
 Excessive delegation may amount to abdication and delegation unlimited may invite
despotism uninhibited.19
 If the delegation is bereft of guidelines, then it is unsustainable in the eye of law.20
 Faint glimmering of policy is sufficient to uphold a law against the challenge of excessive
delegation.21
 Rules framed under one Act cannot have overriding effect on the provisions of another
Act.22
Page 104-106 Incomplete Delegator not to revise/review his delegate’s order

Special forms of delegated legislation


The classification provided in on the bases on power conferred under several broad heads. These
categories are not mutually exclusive.

(a) Skeletal Legislation


It refers to a statute which delegates legislative power without laying down any principle or
policy for guidance of the delegate.23 Ordinarily in India, a skeletal statute ought not to be valid
because of the doctrine of excessive delegation which insists that the legislature lay down a
policy. But it is not uncommon to fund skeletal statutes in which the legislature lays down no
policies, or lays down the barest of policies, or standards or principles, and the executive is given
power not only on matters of detail but even on matters of principles and policies without much

18
K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2006) 12 SCC 753
19
Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350
20
B.R. Enterprises v. State of U.P., AIR 1999 SC 1867
21
Ramesh Birch v. Union of India, AIR 1990 SC 560
22
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296
23
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
limitation on power. Example. Essential Supplies (Temporary Powers) Act, 1946.24 (See Page
108)

(b) Power to include


The statute may clothe the executive with the power to expand the range of its operation by
bringing within its scope: individuals, or bodies, or commodities through methods other than
formally amending a Schedule. Example Essential Commodities Act, 1955, Employees
Provident Fund Act, 195225, Drugs and Magic Remedies (Objectionable Advertisement) Act,
195426

(c) Power to exempt


A statute may grant power to the executive to exempt from its operation any person, institution
or commodity as the case maybe, and thus restrict the scope of the Act. This is done with the
view to introduce some flexibility. Example: Payment of Bonus Act, 196527.
The exemption may however be susceptible to challenge under Article 14.

(d) Power to modify the statute


At times a statute may confer power on the authority to modify the statute itself. Prima facie it is
a drastic power as it empowers the executive to modify the legislatures words. But in some
situation it is necessary to confer such power for pragmatic considerations. The judicial approach
to such conferment is favourable subject to the rider that it cannot use such power so as to
change the basic policy underlying the Act.28

(e) Power to amend schedule


A common legislative practice is to confer power on the administration to amend the Schedule
annexed to the Act. Usually the Act would say that the Act applies to individuals, bodies or
commodities mentioned in the Schedule annexed. The executive by amending the Schedule can
either expand or constrain the application of the Act.
Example: Minimum Wages Act, 194829,

(f) Territorial extension of statute


Another technique is to confer the power on the executive to extend the statute already in force
in one are to another area with such modifications as the executive may think fit. This was
discussed in the Delhi Laws case. This has also been held valid subject to a rider that it cannot
use such power so as to change the basic policy underlying the Act

24
Harishankar Bagla v. State of M.P., AIR 1954 SC 465
25
Mohmedalli v. Union of India, AIR 1964 SC 980
26
Humdard Dawakhana v. Union of India, AIR 1960 SC 554
27
Jalan Trading Co. v. Mill Mazdoor Union, AIR 1967 SC 691
28
Rajnarain v. Chairman PA Committee, AIR 1954 SC 567
29
Edward Mills Co. v. State of Ajmer, AIR 1955 SC 25
(g) Applying provisions from another Act with modifications
A statute may empower the government to apply to certain matters thereunder provisions from
another statute with necessary modifications. For example, Section 43 of LIC Act, 1956
authorises the Central Government to apply provisions of Insurance Act, 1938, with such
modifications and conditions as it thinks fit.
The Supreme Court has reiterated the principle that power to restrict or modify does not import
the power to make essential changes and it is confined to alterations of a minor character and no
change in principle is involved.30

(h) Henry VIII clause


At times a statute may contain a ‘removal of difficulty’ clause, or which is nicknamed in
England as the Henry VIII clause because the King is regarded popularly as the impersonation of
executive autocracy. What is sought to be denoted thereby is that such a clause vests an
unlimited power in the executive to change the legislation.
Generally, there are two types of such clauses which can be identified in Indian statutes: -
 A narrow one under which power to remove difficulties has to be exercised consistent
with the provisions of the Act
Under this clause there are three requirements which need to be fulfilled for an order to be
validly made, which is: -
o A difficulty has arisen when giving effect to the provisions of the scheme
o The order to be made appears to the Government to be necessary for the purpose
of removing that difficulty
o The order is not inconsistent with any of the provisions of the scheme.31
Examples Section 128 of States Reorganisation Act, 1956, Section 45(10) of Banking Regulation
Act, 1949.
 Broader one under which the government is authorised to modify the parent Act or any
other Act in the name of removal of difficulties.
Usually such power is limited in point of time say two or three years from the commencement of
the Act in question. Such a power is usually frowned upon as inconsistent with the principles of
parliamentary democracy as it vests an arsenal of power in the executive. Nevertheless,
exigencies of modern administrative process demands that such power be conferred on the
executive when a new and complicated socio-economic measure is bought into force.
Such a clause has been held valid on the ground that existence or arising of difficulty is sine qua
non or condition precedent for exercise of such power conferred by the statute, and therefore

30
N.C.J. Mills Co. v. Asst. Collector Central Excises, AIR 1971 SC 454
31
State Bank of Travancore v. Goodfield Plantations, AIR 1980 SC 650
whether a difficulty has arisen or not is not within the subjective satisfaction of the government
and needs to be established as an objective fact.
It may slightly tinker with the Act, round off angularities, and smoothen the joints or remove
minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic
structure and primary features of the Act. In no case, can it, in the guise of removing a difficulty,
change the scheme and essential provisions of the Act,32
Misuse of the clause.33 (Jalan Trading Companies case also dealt with Henry VIII clause)
Example: Article 392(1) and 372, Section 19A of Provident Fund Act, 1952

(i) Power of taxation


In a democratic system, levying tax is regarded exclusively as a function of the legislature as this
power is a strong weapon at the disposal of the legislature to control the executive. The Supreme
Court has been liberal with delegation of power to tax on the ground that power to tax must be a
flexible power as it can be used as an instrument of planning and achieving socio-economic
goals.34
Several variants have been used: -
o Power may be extended to exempt a commodity from purview of tax35
o Power to bring additional transactions, commodities or persons within the
purview of tax.36
o Power may be conferred to fix the tax rates subject to some parameters.37
Charge under a taxing statute can only be under an Act not under the rules. The rule normally
provides for procedure to be followed for the realisation of statutory dues.38
Delegation of taxing power to a non-elected body was held valid. (BDA)39

(j) Delegation to municipal bodies


A liberal judicial approach is discernible in the case-law in the matter of delegation of legislative
power to municipal bodies. One reason for this judicial attitude is that these bodies are
representative institutions, which are responsible to the people, and this element serves as an
inherent restraint on these bodies in the matter of making delegated legislation. Broad
delegations have been upheld with a view to strengthen the institution of local self-government
which is regarded as the primary unit of democracy.

32
M.U. Sinai v. Union of India, AIR 1975 SC 797
33
Krishnadeo Misra v. State, AIR 1988 Pat 9
34
S.B. Dayal v. State of U.P., AIR 1972 SC 1660
35
Orient Weaving Mills v. Union of India, AIR 1963 SC 98
36
Babu Ram v. State of Punjab, AIR 1979 SC 1475
37
Devi Das v State of Punjab, AIR 1967 SC 1895
38
State of Kerala v. Madras Rubber Factory Ltd., AIR 1998 SC 723
39
B. Krishna Bhat v. State of Karnataka, AIR 2001 SC 1333
The nature of the body to which delegation is made is also a factor to be taken into consideration
in determining whether there is sufficient guidance in matter of delegation.40
State legislatures without specifying what taxes municipalities may levy, confers them power to
levy any tax which the Legislature itself may levy. This is extremely broad legislation and prima
facie, on general principles it would be invalid on ground of excessive delegation. Nevertheless,
the Supreme Court has upheld such a provision arguing that only such taxes may be levied by a
municipality as are necessary to implement the purposes specified in the statute, and this
provides a sufficient guideline to the municipality. Also, prior sanction of the Government is
necessary for imposing such a tax.41

Conditional Legislation
As pointed out earlier the only form of delegation which was acceptable was conditional
legislation. The idea behind this term is that the legislature makes the law which is complete and
full in all respects, but is not bought into operation immediately. The enforcement of the law is
made dependent upon the fulfilment of a condition, and what is delegated to the outside agency
is the authority to determine, by exercising its own judgement, whether or not the condition has
been fulfilled. Thus in conditional legislation the law is there but its taking effect is made to
depend upon determination of some fact or condition by an outside agency.42
The doctrine of conditional legislation is reminiscent of the colonial days when the Privy Council
had to draw a kind of compromise between the exigencies of administration demanding
delegation, and the limited character of the colonial legislature bound as they were by the statute
of British Parliament. The Privy Council did not like to commit itself to the position that the
subordinate legislatures could delegate legislative power, and the term ‘conditional legislation’
was evolved to denote that what was being delegated was some minor legislative power.
Conditional legislation can be broadly categorised into three categories: -
 When the legislation is ready but its future applicability to a given area is left to the
subjective satisfaction of the delegate, who being satisfied about the conditions indicating
the ripe time for applying the machinery of the said Act to a given area, exercising the
power as a delegate of the parent legislative body.
 When the Act is complete and is enacted to be uniformly applicable in future to all those
covered under the sweep of the Act, the legislature is said to have completed its task. All
that it leaved to the delegate is to apply the same uniformly to a given area given in the
parent legislature itself but at an appropriate time. This would be an act of pure and
simple conditional legislation.
 Legislature fixes up objective conditions for the exercise of power by the delegate to be
applied to past or existing facts and for deciding whether the rights or liabilities created

40
Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232
41
Western India Theatres Ltd. v. Municipal Corporation, AIR 1965 SC 586
42
R.K. Trivedi v. Union of India, (1988) SCC 58
under the statute are to be denied or extended to particular areas. This exercise is not left
to his subjective satisfaction not is it a mere ministerial exercise.

Distinction between Delegated Legislation


The capacity of the legislature to delegate having been recognised now, the doctrine of
conditional legislation appears to have become redundant because the greater (delegation) would
include the lesser (conditional legislation). The Supreme Court has observed that no useful
purpose is served by calling a power conferred by a statute as conditional legislation instead of
delegated legislation. There is no difference between the two in principle, for ‘conditional
legislation’ like delegated legislation has a content (howsoever small and restricted) of law
making power itself. And in neither case can the person be entrusted with power to act beyond
the limits which circumscribe the power.43
But courts have not ceased making references to doctrine of conditional legislation. In
Tulsipur44, the Supreme Court has stated that conditional legislation cannot be characterised as
subordinate legislation.
In Hamdard Dawakhana, the Supreme Court observed that the distinction between conditional
legislation and delegated legislation is this that in the former the delegate’s power is that of
determining when a legislative declared rule of conduct shall become effective, and the latter
involves delegation of rule-making power which constitutionally may be exercised by
administrative agency.
Conditional legislation is usually not open for attack on ground of excessive delegation. 45

Doctrine of excessive delegation


The doctrine of excessive delegation is not a mere empty formalism; the doctrine seeks to: -
 preserve the traditional role of the elected representatives of the people to make policies
rather than hand over the function to politically unresponsive civil servants.it promotes
democracy and curbs bureaucracy.
 It ensures that the legislature provides the recipient of that power with an intelligible
principle to guide the exercise of delegated legislation.
 It enables judiciary to have some check on delegation of power by the legislature.
The rule against excessive delegation of the legislative authority flows from and is a necessary
postulate of the sovereignty of the people.46 Constitutional legitimisation of unlimited power of
delegation to the executive by the legislature may on critical occasions, be subversive of
responsible government and erosive of democratic order.47

43
Lachmi Narain v. Union of India, AIR 1976 SC 714
44
Tulsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882
45
State of Tamil Nadu v. K. Sabanayagam, (1998) 1 SCC 318
46
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
47
Avinder Singh v. State of Punjab, AIR 1979 SC 312
The doctrine of excessive delegation can play a very useful role in curbing executive power
during an Emergency under Article 352 of the Constitution when Fundamental rights are
suspended,48

Judicial Control over Delegated Legislation

48
Makhan Singh v. State of Punjab, AIR 1964 SC 381