Definition

Before discussing in detail, let us appreciate some of the important definitions

that will provide lucidity while understanding the concept of Delegated
Legislation.

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another

with authority or empowering another to act as an agent or representative’.
E.g. Delegation of Contractual Duties.

The Dictionary further defines ‘Doctrine of Delegation’ as:

“The Principle (based on the Separation of Powers Concept) limiting

Legislature’s ability to transfer its legislative power to another Governmental
Branch, especially the Executive Branch.”

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in
a state and that depends for its continued existence and validity on some
superior or supreme authority.”

The Principle of Delegated Legislation has been defined as[1]:

“This principle which has been well-established is that the legislature must lay
down the guidelines, the principles of policy for the authority to whom power to
makesubordinate legislation is entrusted.”

Usage and Terminology

In India, ‘Rule’ and ‘Order’ are by far the most common names under which
Delegated Legislation is permitted.

Section 3 (51) of the General Clauses Act defines ‘Rule’ as “Rule shall mean
a rule made in exercise of a power conferred by any enactment and shall
include aregulation made under any enactment”.
Thus as suggested by this definition, a ‘regulation’ may be made as a ‘rule’
and then it partakes the character of a rule[2]. However, a certain amount of
caution needs to be exercised while using these words. The expression
‘regulation’ should be used to describe the instrument by which the power to
make the substantive is exercised and the expression ‘rule’ to describe the
instrument by which the power to make law aboutprocedure is exercised. But,
this is merely an indicative guideline to keep things clear and unambiguous.

We also use various expressions and words to signify Delegated Legislation

such asOrder, Directions, Schemes, Circulars, notification, bye-
laws and Instructionsetc.

Limitations on Delegated Legislation

1. The Legislature cannot delegate Essential Legislative Functions which

consist in the determination or choosing of the Legislative Policy and of
formally enacting that policy into a binding rule of conduct[3].

Justice Cardozo famously stated that the Legislature cannot delegate

‘uncanalized and uncontrolled power’, the power delegated must not be
unconfined and vagrant, but must be canalized within banks that keep it from
overflowing[4].

2. Thus what is permitted is the delegation of ancillary or subordinate

legislative functions or a power to fill up the details.

3. Whether any particular legislation suffers from Excessive Delegation has

to be decided by courts having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble, and the facts and
circumstances in the background of which the statute is enacted[5].

4. Essential Legislative Functions include the power to repeal or modify

a law and cannot be delegated.
5. In the absence of an express or implied power to that effect, Delegated
Legislation, be it a rule, bye-law or a notification, cannot have retrospective
operation[6].

6. A power to Tax or levy any fee cannot be inferred from mere generality of
the powers conferred by the enabling enactment. Such power of imposition of
tax or fee by Delegated Authority must be very specific and there is no scope
of implied authority for imposition of such tax or fee[7].

7. One of the important conditions prescribed under Section 23 of the General

Clauses Act, 1897 is that the authority having power to make the rules or bye-
laws shall, before making them, must publish a draft of the proposed rules or
bye-laws for the information of person likely to be affected thereby.

8. Where the delegating statute itself is ultra vires to the Constitution of India,
the rules made under such statute are also unconstitutional.

9. The power to modify the parent statute is limited to bringing

about consequential changes and cannot be exercised to subvert the policy
laid down by the legislature. No radical changes in the enacted law is
permitted[8].

10. The legislature is the master of policy and if the delegate is free to switch
policy it may be usurpation of legislative power itself[9].

11. Delegated Legislation may also be declared invalid on the following

grounds:

A. Violation of the Constitution of the India.

B. Violation of the Enabling Act.
C. Violation of Principles of Natural Justice when the Statute itself provides
of such requirement.

Difference between Conditional Legislation and

Delegated Legislation
Conditional Legislation – Such Legislation is usually complete in itself but its
operation is made to depend on fulfilment of certain conditions and what is
delegated to an outside authority, is the power to determine according to its
own judgment whether those conditions are fulfilled.

Thus Conditional Legislation contains no element of delegation of legislative

power and is, therefore, not open to attack on the ground of Excessive
Delegation.

Delegated Legislation – In such cases, some portion of the Legislative

Power of the Legislature is delegated to the outside authority in that, the
Legislature, though competent to perform both the Essential and Ancillary
Legislative Functions, performs only the former and parts with the latter.

Thus Delegated Legislation confers some legislative power on some

legislative authority and is therefore open to attack on the ground of Excessive
Delegation.

However, even though Conditional Legislation is distinguishable from

Delegated Legislation, still it has been held to be a subset of Delegated
Legislation. The Court has observed that “it has content howsoever small and
restricted of the law making power itself”[10].

Sub-Delegation

It has been consistently held by the courts that the delegate on whom
the power to make subordinate legislation is conferred cannot further
delegate that power. This principles finds its origin in the Latin maxim
‘delegatus non potest delegare’ meaning a delegate cannot himself
delegate.

Thus when an Act prescribes a particular body to exercise a power, it must be

exercised by that body and none else unless the Act by express words or
necessary implication permits such delegation. When a sub-delegation is
made, it does notdivest the authority making sub-delegation of his statutory
authority.
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Constitution of India
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Constitution of India
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Constitution of India
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Constitution of India
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[1] Ajoy Kumar Banerjee & Ors. Etc v. Union of India & Ors., AIR 1984 SC
1130.
[2] ‘Regulation’ and ‘Rule’ are interchangeable words; Parvez Qadir v. Union
of India, AIR 1975 SC 446.
[3] In re, Article 143, Constitution of India, AIR 1951 SC 332.
[4] P