Administrative Law- Internal I

“Critical Analysis of the Constitutional Validity

of Delegated Legislation in India”

NAME – Ira Singhal

PRN- 15010125202
DIVISION- C
B.A. LL.B (Hons.)

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 Table of Contents

Sr. Contents Pg. No.

No.
I. Introduction 3

II. Historical Background: Status In The Pre- 4

Constitution Period
III. Post Constitution Period 5

IV. Position Post The Delhi Laws Act Case: 7

Doctrine Of Excessive Legislation
V. Recommendations Regarding The Scope Of 9
Delegated Legislation
VI. Conclusion 10

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I. INTRODUCTION
Delegated Legislation is an inevitable and essential part of an efficient administration. In
Salmond’s view, delegated legislation is that which flows from a second authority apart from the
sovereign power and hence, is reliant on some supreme authority for its persistent existence and
legitimacy.1 Hence, due to this reliance, it was and is one of the most controversial and contentious
issues in India.2

According to traditional concept and in a model state, the role and function of the executive is to
administer and enforce the law enacted by the legislature and legislative power to enact various
laws and policies is solely with the legislature.3 However, due to an upsurge in the administrative
responsibilities and functions of the executive, coupled with the emergence of concept of welfare
state, the executive is required to perform certain legislative functions.4

The concept of delegated legislation suffers from several defects and makes the executive more
powerful than desired by giving it the power to restrain life, liberty and property of individuals
without enforcing appropriate democratic restraints.5 Yet, such delegation is essential for the
Legislature to keep pace with developments in modern democratic society.

This Research Project attempts to trace the historical background of development of the concept
in India and highlight its significance, in spite of its various shortcomings in light of constitutional
validity of the same, along with providing some suggestions that in the view of the Researcher will
aid in solving the controversies surrounding the concept of delegated legislation and fade out the
fog surrounding it.

1
P J Fitzgerald, Salmond on Jurisprudence, 116, 12th ed, 2012.
2
Chhavi Agarwal, In re Delhi Laws Act Case: Landmark in concept of Delegated Legislation in India, available at
http://manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws%20Act%20Case.pdf
3
SP Sathe, Administrative Law, 23, 7th ed., 2004.
4
Takwani, Lectures of Administrative Law, 23, 3rd ed., 2006.
5
MP Jain & SN Jain, Principle of Administrative Law, 48-49, 6th ed., 2013.

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II. HISTORICAL BACKGROUND: STATUS IN THE PRE-CONSTITUTION PERIOD
Before the Constitution of India came into force in 1950, Indian Legislature was the creation of
laws passed by the British Parliament, which were described as non-sovereign law-making
bodies.6

The question of constitutional validity of the delegated legislation came before the Privy Council
in India for the first time in India in 1878 in the case of ‘Queen v. Burah’.7 In this case, the Act
passed by the legislature which removed the Garo Hills from the jurisdiction of law and courts
prevalent in that area and vested the same with the Lt. Governor of Bengal or any officer appointed
by him was challenged.8 The act also authorize the Lt. Governor to enforce any law which might
be in force in territory under him.

The question before the Pricy Council was whether the powers given to the Lt. Governor an
instance of delegation of power. The Council held that the Legislature had plenary powers and was
authorized to transfer certain powers to the Lt. Governor. The Council held that the legislature had
rightly exercised its judgment as to the place, persons, laws, powers of the governor subject to
certain restrictions.

However, the case of ‘Jatindra Nath Gupta v. Province of Bihar’9 saw a shift from the position
adopted by the Council in the Burah case. In the present case, the court held Sec. 1(3) of the Bihar
Maintenance of Public Order Act, 1937 to be ultra vires as it amounted to delegated legislation.
The court for the first time upheld the rigid and strict rule of separation of powers into the Indian
legal mechanism and held in India, there could be no delegation of powers by the legislature in
India beyond conditional legislation, which is an extremely restricted form of delegation.

There was a lot of vagueness and confusion revolving around the concept after these contradictory
judgments and the question was whether legislature of Independent India should be subject to the
strict rule of separation of powers or be given freedom to delegate some powers?10 And if the
Legislature was given a greater degree of freedom of delegation, then should India follow the

6
A.V. Dicey, The Law of Constitution, 99, 9th ed., 1931.
7
1878 3 AC 889
8
Id.
9
AIR 1049 F.C. 115.
10
Supra note 5, at 55.

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American or British form of delegation, which have stark contrasts?11 The answers to these
questions will be catered by the following sections of the Research Project.

III. POST CONSTITUTION PERIOD

The Constitution of India is silent on the question of delegated legislation. Therefore, if the courts
had to find any constraints on the legislation on this subject it had to be on the basis of general
philosophies and principles of Constitutional Law.12 The Supreme Court finally provided some
clarity on the subject in the famous case of In Re Laws Delhi Act.13

In this case, the validity of a certain provision of the Part C States (Laws) Act, 1950 which
authorized the Central Government to extend to any Part C State, including Delhi, any law passed
by a State Legislature and even modify the same before its implementation in the said Part C State.
The Act also allowed the Central Government to repeal or amend any corresponding law which
might be operational at that time in the concerned Part C State.

Without a shadow of a doubt, this act was a highly sweeping legislation and hence, the President
of India under Art. 143 of the Constitution of India, asked for the Supreme Court’s opinion on the
subject matter.14 Further, the significance of the present case cannot be undermined as on the one
hand it allowed for delegated legislation, but on the other hand defined the degree of such
permissible delegation of power.15

In spite of the difference in the majority and minority judgment, there was a consensus of opinion
on two major points. Firstly, the bench agreed that if Legislation was to face and satisfy the needs
of a Modern Developing Democratic Society like India, the Legislature had to be given the power
to delegate its powers. The bench opined that the same was essential as it was neither practical nor
feasible to expect the legislative body to frame perfect set of laws, for a complex and dynamic
society like India, fully complete and comprehensive on all subjects that were going to legislated
upon and also be appreciative of the developments that will take place in the future.

11
Id.
12
I. P. Massey, Administrative Law, 88, 7th ed., 2008.
13
AIR 1951 SC 332.
14
Supra Note 3, at 42.
15
Supra Note 4, at 70.

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Secondly, they also agreed that since the Indian Constitution was one which was written, the
Legislature could not be allowed the same freedom that the British Parliament exhibited in the case
of delegation of powers. Hence, they agreed that certain restriction should be placed on the power
to delegate legislative powers on the Indian Legislature.

The bench however, differed on the question as to what was the permissible extent within which
the Indian Legislature could and should delegate their legislative powers. The majority, which
comprised of Chief Justice Kania, Justice Bose, Justice Mukherjea and Justice Mahajan held
provision to repeal any law to be ultra vires the power to delegate as they opined that the Parliament
did not have power to delegate essential and core functions of the legislation. They held that the
framers of the Constitution did not intend to include power to delegate under power to legislate,
as otherwise there would be no need to make a provision of delegation under Art. 357 of the
Constitution. In accordance with the maxim, expressio unhis est e.xcliisio aherhts, Art. 357 was
construed as implicitly barring the Parliament from delegating legislative function in other
circumstances.

The minority, which comprised of Justice Das, Justice Ali and Justice Sastri held the provision
which allowed the repealing of laws to be valid. They held that the power to legislate includes
power to delegate and held that the Legislature could delegate to any extent its legislative powers,
the only restraint being that by way of this delegation it cannot form a new Legislature itself. They
based their reasoning on legislative omnipotence of the British Parliament, which was reflected in
the Canadian, Australian and Indian Constitutions.

In the Researcher’s opinion, the view upheld by the majority holds merit and ground as Art. 357
was inserted as a result of the Jatindranath Gupta case16, so that the Parliament could form a new
legislature and support it with general legislative authority.17 It therefore is reasonable to conclude
that the Parliament would not need to delegate any other legislative power which were inconsistent
with Jatindranath’s case, otherwise, the framers of the Constitution would have provided an
authority for that too.

Hence, in the instant case, the specific provisions which were challenged were held to be valid by
the majority subject to the fact that the Government could no more repeal a law already in force in

16
Supra Note 9.
17
Constituent Assemble Debates, 134, Vol. IX 1-22.

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a Part C State and also bar the power to modify State laws in Part C State which alter the underlying
policy of the law sought to be extended. The Delhi Laws Act Case is significant and relevant
because of two reasons:-

a. It legitimized the power to delegate legislative powers by the Legislature to the

administrative and executive organs
b. It imposed a limit to the extent of such legislation and held that if a delegation was too
wide, the courts could declare it to be excessive and hence, hold it to be invalid.

The Court realized the inevitable need for delegated legislation, but at the same time also agreed
that the Indian Legislature cannot enjoy the same degree of freedom of delegation of legislative
functions as enjoyed by the British Parliament. Hence, the majority of the bench opted for the
position prevalent in America, which calls for the Legislature to law down essential policy and
delegate would only be given the power to legislate to further the legislative policy. This is now
known as the ‘Doctrine of Excessive Delegation of Legislative Powers.’18

IV. POSITION POST THE DELHI LAWS ACT CASE: DOCTRINE OF EXCESSIVE
LEGISLATION

The Indian Legislature cannot delegate essential, core and indispensable functions of legislative
powers to an administrative body19 and in case the legislature fails to do so, the law passed by way
of such delegation would be declared ultra vires of the power of the legislative body and invalid.20
A completely unrestricted blanket power where the legislative authority has neither laid down any
guidelines for the delegate nor put in procedural safeguards against indecorous exercise of power
by the delegate, can be held to be invalid by way of it being an excessive delegation.21

18
Supra Note 5, at 58.
19
Humdard Dawakhana (Wakf) v. Union of India, AIR 1960 SC 554; see also Kishan Prakash Sharma v. Union of
India, (2001) 5 SCC 212; see also Krishna Mohan P Ltd. v. Municipal Corporation of Delhi, (2003) 7 SCC 151.
20
State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, ¶19; see also M.P. High Court Bar Association v. Union of
India, (2004) 11 SCC 766, ¶38; see also Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1, ¶69.
21
H.R. Bantha v. Union of India, AIR 1970 SC 1453, ¶17.

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The questions which were yet to be settled in the Delhi Law Act Case and other subsequent cases,
were re-opened in the Gwalior Rayon Case.22 The judgment was delivered by a five judge bench,
the majority led by Justice Khanna and the minority view delivered by Justice Mathew.

The majority, led by Justice Khanna, upheld the rule of excessive delegation and cited it as
essential to protect the sovereignty of the people of India. In absence of any such constraint, the
Legislature may delegate unlimited powers to the Executive, which would be an absolute violation
of the principle of separation of powers.

Further, the majority also held that it was necessary and compulsory for the Legislature to lay
down a set of guidelines and policies for the delegate and also assist the courts to differentiate
delegation from excessive delegation. The majority also opined that the doctrine of excessive
delegation gave the courts power to keep a check on excessive delegation by the Legislature and
hence, the judgment established the doctrine of excessive delegation as a well-established principle
in India.

The minority judgment delivered by Justice Khanna, held that as long as Parliament retains its
right to repeal such provisions which confer the Administrative authority with powers of delegated
legislation, it does not abandon or renounce its legislative function and preserves an ultimate and
decisive control over the delegate. For the same reason, he was also of the view that the Legislature
need not frame a set of policies and guidelines in the said statute.

The judgment delivered by Justice Khanna was full of shortcomings and drawbacks, which gave
the Executive absolute power to legislate as well as enforce the said laws, making it the absolute
authority, which would completely contravene the rule of separation of powers. The view, if
accepted would have completely abolished the concept of excessive delegation and the dangers
which would flow from such an unrestricted power to delegate of the Legislature was pinpointed
by the majority.

Further, even if the Parliament retained the right to repeal the law enacted by the delegate, the
legislature is almost under the thumb of the Government in a modern Parliamentary Democratic
set up and practically, it is merely a myth that the legislature can repeal a law passes by the
executive, as almost all legislation is sponsored by the Government, making the Legislature almost

22
Gwalior Rayon Co. v. Asst. Commr. Of Sales Tax, AIR 1974 SC 1660.

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a subordinate of the Executive. Hence, practically the Executive would never ask the Parliament
voluntarily to repeal a law passed by it on the grounds of misuse of power.23

The judgment delivered by the majority judges in the Gwalior Rayon case has been rightly upheld
in a large number of cases in the future.24 Additionally, the court has also upheld that there is no
excessive delegation as long as the Legislature has specified its policy on the same, and only left
its promotion and implementation on the delegate, provided that the Legislature has retained the
right to prevent or undo any mischief done by the delegate.25

Further, the courts have also held that for determination of the existence of excessive legislation,
the specific legislation has to be examined in the context of its subject matter, scheme, and
provisions of the statute including the preamble of the same and also the facts and circumstances
in the backdrop of which the statute was enacted.26 Further, if the validity of the statue is open to
two interpretations, the presumption is in the favour of the one which would make the legislation
valid and not the one which would make it ultra vires.27

V. RECOMMENDATIONS REGARDING THE SCOPE OF DELEGATED

LEGISLATION

Thus it is evident from the above discussion and analysis, that though the principle of excessive
delegation is an established doctrine in India, the judiciary has adopted a very liberal approach on
the subject of upholding the constitutional validity of delegated legislation. In the Researcher’s
opinion, the same is not free from perils, as the line between the Legislature and the Executive is
merely a foggy line. If the same were to be further faded, there would be no separation of powers
between the Legislature and the Executive, leading to the Government emerging as the ultimate

23
Jain, Indian Constitutional Law, Ch. III, 5th ed., 2006.
24
K.S.E. Board v. Indian Aluminium, AIR 1976 SC 1031; see also B.R. Enterprises v. State of Uttar Pradesh, AIR
1999 SC 1867; see also Agricultural Market Committee v. Shalimar Chemical Works Ltd., AIR 1997 SC 2502; see
also Kishan Prakash Sharma v. State of India, AIR 2001 SC 1493; see also Registrar, Co-operative Societies v. K.
Kunjabmu, AIR 1980 SC 350.
25
Organon (India) Ltd. v. Collector of Excise, AIR 1994 SC 2489; see also B.R. Enterprises v. State of Uttar Pradesh,
AIR 1999 SC 1867; see also Agricultural Market Committee v. Shalimar Chemical Works Ltd., AIR 1997 SC 2502;
see also Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 321.
26
St. John’s Teachers Training Institute v. Regional director, NCTE (2003) 3 SCC 321; see also Novva Ads v.
Secretary, Department of Municipal Administration and Water Supply, (2008) 8 SCC 42; see also State of Tamil Nadu
v. P. Krishnamurthy, (2006) 4 SCC 517.
27
St. John’s Teachers Training Institute v. Regional director, NCTE (2003) 3 SCC 321.

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authority, i.e., as the law making and law enforcing authority, with the absence of any healthy
criticism while legislating on such subjects.

Delegated Legislation is a necessary evil and in a Country like India, the degree of legislative
authority embodied by the executive is on already on the higher side, owing to the complex nature
of our society. If the same is to be further increased by the judiciary and interpreted in a liberal
manner, the Executive would transform into a body performing both legislative and executive
functions. Hence, in the view of the Researcher there is a need to curtail this principle of delegated
legislation to cases only where the lawmakers legislate on a topic which is in its nascent stage of
development, making it an extremely unpredictable and vague subject.

In such cases, the delegation of legislative powers to the executive bodies is justified and practical
to ensure the law lacks arbitrariness, vagueness and satisfies the reason it was enforced for in the
first place. In the Researcher’s opinion, delegation of legislative powers is not necessary where the
law is crystallized and has withstood the test of time, making it an almost perfectly rational and
complete legislation. Hence, only the power to further the objectives and policies of such
legislations should be given to the executive whereas, where a legislation deals with a nascent
aspect of law and is still in its developing stage, a greater degree of legislative power can be
delegated to the executive bodies.

VI. CONCLUSION

The Constitutional validity of delegated legislation is no more a topic for debate and discussion,
but the topic of controversy is the limit and extent of such delegated legislation.28 Different times
call for varying approaches and framing and enforcement of new concepts and laws that shape and
mold the society. Hence, delegated legislation is an essential when the subject of legislation is in
its nascent and developing stage.

If in these circumstance, the legislature is not permitted to delegate essential legislative functions,
the growth of society will be stunted and incomplete.

28
Saad Abdulbaqi Sabti & YP Rama Subbaiah, Conceptual analysis of sub Delegation: An overview, 75-79, Vol. 3,
Issue 3, May 2017, International Journal of Law, ISSN: 2455-2194, RJIF 5.12.

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However, every coin has two sides. The downside of delegated legislations are several, yet
essential to keep pace with the developments in society. In the cases of In re Delhi Laws Act and
Gwalior Rayon, both being landmark and significant judgments, the judiciary has tries to provide
clarity to the concept of delegated legislation, with much success. They rightfully laid the
foundation of permissible delegation of legislative powers to the executive bodies.

Yet, the courts after these judgments have adopted a rather liberal approach in interpreting
delegated legislation from excessive delegation, making the line between legislature and executive
rather hazy. However, they have absolutely restricted the Indian Legislature from embodying
absolute powers of delegation like the British Parliament, and have developed the concept of
delegation fundamentally from the American Society.

Though, the idea that a clean and crystallized division can be made between the legislature and the
executive is merely a utopian concept, and not a practically feasible, the judiciary should be
cautious while validating a delegated legislation, ensuring they do not over step and further
broaden the powers of the Executive. Hence, the concept of delegated legislation though a
compulsion, is not free from shortcomings that flow from it as result of its implementation, which
cannot be underestimated and overlooked.

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