DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

ADMINISTRATIVE LAW

FINAL DRAFT
On

LEGISLATIVE CONTROL OF DELEGATED

LEGISLATION

Under The Guidance of: Submitted By:

Dr. Shashank Shekhar Aditya Joshi
Assistant Professor (Law) Roll No. 13,
Section A, VI Sem,

1|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

Contents
ACKNOWLEDGEMENT ............................................................................................................ 3

INTRODUCTION......................................................................................................................... 4

MEANING OF DELEGATED LEGISLATION ....................................................................... 5

FACTORS RESPONSIBLE FOR THE GROWTH OF DELEGATED LEGISLATION. ... 5

PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION ............................ 6

Pre-enactment control............................................................................................................... 6

Post-enactment control ............................................................................................................. 7

Procedure for laying before the house ................................................................................. 7

CONCLUSION ............................................................................................................................. 8

BIBLIOGRAPHY ....................................................................................................................... 10

2|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

 ACKNOWLEDGEMENT

It is not a ritual but a heartfelt feeling that I wish to express my gratitude. I am indebted to many
in the course of this research project.

Much of the data deployed here has been taken from the books and other data available at Dr.
Madhu Limaye Library, Dr. Ram Manohar Lohia National Law University.

I am thankful to Dr. Shashank Shekhar (Assistant Professor, RMLNLU) for being supportive
during the course of this project.

3|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

 INTRODUCTION

The growth in the range of responsibilities of the state thus ushered in an administrative age and
an era of Administrative law. Every delegate is subject to the authority and control of the
principal and the exercise of delegated power can always be directed, corrected or cancelled by
the principal. Hence parliamentary control over delegated legislation should be a living
continuity as a constitutional remedy. The fact is that due to the broad delegation of legislative
powers and the generalized standard of control also being broad, judicial control has shrunk,
raising the desirability and the necessity of parliamentary control.

Legislative control over delegated legislation is exercised at two levels. The first control
exercised at the time of passing the enabling act while the second control is exercised when the
legislation scrutinizes the delegated legislation.

The issue of delegated legislation has been one of the most debated issues in the domain of legal
theory because of its various implications. Scholars have consistently presented differing and
even contradicting views about delegation of power to legislate and have thus taken different
stands on the issue. While Delegated Legislation has been a widespread practice in modern times
and is almost an accepted norm, there have been contrary views. For instance Cooley has
expressed a staunchly critical view of the power to delegate. He has stated that "One of the
settled maxims in constitutional law is that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body or authority. Where the sovereign
power of the State has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself
of the responsibility by choosing other agencies upon which the power shall be devolved, nor can
it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust."1 Further ha has also observed that "No
legislative body can delegate to another department of the government, or to any other authority,
the power, either generally or specially, to enact laws. The reason is found in the very existence
of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and
patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate
the trust, instead of executing it."2 While such positions do raise the questions about the
propriety of delegating the power to legislate by higher legislative bodies to the lower ones, the

4|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

fact remains that this has been a general practice followed in all modern democratic countries.
Hence it is important to understand what is firstly meant by delegated legislation and then
analyses its various aspects.

MEANING OF DELEGATED LEGISLATION

Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate its
power to other bodies or persons. The statute which delegates such power is known as Enabling
Act. By Enabling Act the legislature, lays down be broad guidelines and detailed rules are
enacted by the delegated authority.

Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules,
regulations, orders, bye laws etc.

FACTORS RESPONSIBLE FOR THE GROWTH OF DELEGATED

LEGISLATION.
Busy Legislature:

Parliament and State Legislature are too busy to deal with the increasing mass of legislations,
which are necessary to regulate daily affairs.

Technicality and knowledge:

Modern legislation requires technicality and expertise knowledge of problems of various fields,
our legislators, who are politicians are not expected to have such knowledge.

Experiments opportunities:

Subordinate legislations are more flexible, quickly and easily amendable and revocable than
ordinary legislation, in case of failure or defect in its application.

Contingencies:

When contingencies arise which were not forceable at the time of making it, subordinate
legislation can pass an act quickly to handle them.

Emergency Powers:
5|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.
Quick, effective and confidential decisions are not possible in body of legislatives. So,
executives are delegated with power to make rules to deal with such situations.

PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION

These are the main factors, besides many others, for the fast increase in delegated legislation
today. While in the context of increasing complexity of law-making, subordinate legislation has
become an important constituent element of legislation, it is equally important to see how this
process of legislation by the executive under delegated powers, can be reconciled with .the
democratic principles or parliamentary control. Legislation is an inherent and inalienable right of
Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of
what is called subordinate legislation. It can control the following:

1. Normal Delegation: - a) Positive: - where the limits of delegation are clearly defined in the
enabling Act

b) Negative: - does not include power to do certain thing (these not allowed)

2. Exceptional Delegation: - a) Power to legislate on matters of principle (policy)

b) Power is amend Act of parliament (In re Delhi laws Acts)

W.B. State Electricity Board v. Desh Bandhu Gosh1 it was held that Regulation 34 of the West
Bengal State Electricity Regulation which had authorized the Board to terminate the Service of
any permanent employer on three months notice or pay in lieu thereof. This hire & fire rules of
regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport
Corporation Limited v. Brojo Nath Ganguly2 wherein rule 9 of the service rules of the CIWTC
conferred power to terminate on similar lines as in the case of Desh Bandhu Ghosh the court
went on to say that No apt description of Rule 9(i) can be given than to call it "the Henry VIII
clause". It confers absolute and arbitrary power upon the Corporation and therefore invalid.

Pre-enactment control

1
(1958) 3 SCC 116
2
AIR1986SC1571

6|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

With a view to enabling the members to exercise the initial control, the rule of procedure 1988 of
the house the people requires that a bill involving proposals for delegation of legislative power
shall be accompanied by a memorandum explaining such proposals, drawing the attention to
their scope, and also stating whether they exceptional or normal character. Though this is a rule
in itself, in practice it does not amount to much, for the memorandum is usually scrappy and
inadequate and fails to give worthwhile information regarding the scope and effect of the rules
proposed to be framed under the bill when enacted. The committee on subordinate legislation
took note of the deficiency and emphasized that the memorandum should give full import and
effect of the delegation of power to subordinate authorities including the points which might be
covered in it, the particulars of the subordinate authorities or person who are due to exercise the
delegated power, and the manner in which such power is to be exercised.

Members of parliament in theory at least get enough opportunities of inviting discussion in the
house on delegated legislation. The first opportunity comes when the bill is discussed in the
house. Members may raise objection the extent or the nature of the delegation authorized there
under. Again, rules may be discussed when the temporary act under which they might have been
enacted comes for renewal before the house. Delegated legislation may be criticized by members
at the time when parliament grants the money to the executive. By asking question during
question time in parliament, members actively confront the government on the exercise of the
rule-making power. All such possibilities have, however, become merely theoretical in view of
the deterioration in the quality of legislative debates.

Post-enactment control

It is the control at the second level that is the supervision over delegated legislation rather than
over delegating legislation that is more important.

This effectuated by two methods. One is that of laying the subordinate legislation before the
parliament so as to enable the members to scrutinize it. The second is appointing the committee
to scrutinize delegated legislation on behalf of the parliament.3

Procedure for laying before the house

3
Indian law institute, delegated legislation, 1964,pp 164-65.

7|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

There is no general law in India requiring that all delegated legislation be laid before the house
of parliament. Whether the piece of delegated legislation is to be laid before the house or not
depends upon the terms of the parent statute. The statutory provisions requiring the layong of
rules were not uniform. They followed three pattern:

i. Rules were required to be laid before the parliament as soon as may be after their
publication;
ii. Rules were required to be laid before the parliament and were subject to such
modification as the parliament might make after they were laid on the table;
iii. Rules were required to be laid before the parliament for a specified period before their
publication and either required approval of the parliament or could be annulled by the
parliament within such period.

This is known as laying with affirmative or The negative procedures. The first pattern merely
serves the purpose of giving information to the parliament. No discussion can be raised in the
parliament on the rules so said. Question can, however, be asked. In effect this doesnt amount
any effective parliamentary control over delegated legislation. The second pattern secures a
greater amount of parliamentary control over delegated legislation as the rule can be discussed
and debated on resolution seeking modification, thereby, although such resolution moved often.

The period for which the rules are to be laid differs from the statute to statute. The time duration
for which the rules are to be laid before the parliamentary is not specified I the enabling act. It
varies from seven to thirty days.4

CONCLUSION

Legislative control over delegated legislation is exercised at two levels. The first control
exercised at the time of passing the enabling act while the second control is exercised when the
legislation scrutinizes the delegated legislation.

One of the most significant developments of the present century is the growth in the legislative
powers of the executives. The development of the legislative powers of the administrative
authorities in the form of the delegated legislation occupies very important place in the study of
the administrative law. We know that there is no such general power granted to the executive to

4
See S P Sathe, Delegated legislation in India, Progress of Law, pp 55-64, (ed MJ Sethna),1962.

8|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

make law. The work of executive is limited to supplement the law under the authority of
legislature. This type of activity has been described as delegated legislation or subordinate
legislation. Delegated legislation refers to all law-making, which takes place outside the
legislature and is generally expressed as rules, regulations, bye-laws, order, schemes, etc. In
other words when an instrument of a legislative nature is made by an authority in exercise of
power delegated or conferred by the legislature, it is known as delegated legislation. In modem
times the sheer bulk of legislation required to effect the business of government is so great that if
the legislative function were performed by Parliament alone, then the law-making machine
would become choked and grind to a standstill.

Delegation of powers means the powers passed on by the higher authority to the lower authority
to make laws. Delegated legislation means the powers given by the legislature to the executive or
administration to enact certain laws. The simple meaning of the expression delegated
expression may be:

When the function of the legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, the term delegated legislation is used in two senses: (a) exercise by a
subordinate agency of the legislative power delegated to it by the legislature, or (b) the
subsidiary rules themselves which are made by the subordinate authority in pursuance of the
power conferred on it by the legislature.

9|LEGISLATIVE CONTROL OF DELEGATED LEGISLATION.

 BIBLIOGRAPHY

S.P SATHE: ADMINTRATIVE LAW, BUTTERWORTHS.

I.P. MASSEY: ADMINISTRATIVE LAW, EBC.

JAIN AND JAIN: PRINCIPLES OF ADMINISTRATIVE LAW, WADHWA PUBLICATION.

10 | L E G I S L A T I V E C O N T R O L O F D E L E G A T E D L E G I S L A T I O N .