B.B.A. L.L.B (Hons.

Final Draft

Administrative Law

Research Project Topic: System of Delegated legislation in India

Submitted by:

Vanshika Gupta

TY BBA LLB (Hons)

Roll no. :A052

[email protected]

Submitted to:

Prof. Afrin Khan

School of Law,

NMIMS (Deemed to be University)

In this paper the author has discussed about the parliamentary system of delegated legislation.
Also, some examples have been used for better understanding of the parliamentary system of
delegated legislation. In the end some suggestions are also given regarding the formation of
proper system of delegated legislation so that there is no delay if there is any problem in the
delegation of the legislation. After the research it has also been opined by the author that there
need to be a committee which can handle matters related to delegated legislation and this will
also reduce the burden on the judiciary. Also, if there will be a committee which will handle such
matters then there will be comparatively less political influence on matters related to delegated
legislation. It is also suggested that there needs to be a limitation period that should be followed.
The author also talks about the constitutionality of delegated legislation.

RESEARCH METHODOLOGY

The method employed for this project is non-empirical in nature which has be done via books
and other online material. The researcher has gone through secondary research and has been
relied upon the books and article present in the library or on the internet which has been
mentioned as footnotes in order to ensure credibility of sources.

The present project is based on the secondary sources hence some limitations. The project is
limited and contains only the limited provisions and judgments.
INTRODUCTION

When the administrative authorities are given power to make rules is called Delegated
Legislation or Subordinate Legislation. Delegation legislation basically means making of law
outside the legislature. It is mostly in the form of rules and regulations. It is when the authority
practicing power given by the legislature makes a tool of a legislative kind. Delegated legislation
is law which is not passed by the parliament but by any individual to whom the work is
delegated. It comes from the parent act which defines its limitations. M.P. Jain talks about two
aspects of delegated legislation1:

 It may be defined as a practice of an agency, the authority for which is given by the
legislature.
 The regulations framed by the subordinate authority under the power given by the
legislature.

The history of delegated legislation can be seen in the Charter Act of 1833 when East India
Company was capturing India and the administrative power was given only to the governor
general. In the case of Queen v. Burah2, nature and extent of delegation of legislative power was
considered by the Privy Council. The Privy Council accepted the transfer of power from
legislative to the executive.

There are a lot of reasons for the growth of delegated legislation in the country. The working and
activities of each and every state is increasing initially and gradually and it is difficult for the
parliament to make laws for each and every activity. In cases where an expert of a particular field
is required in making decision it’s not mandatory that people sitting in the parliament will have
that expertize so delegated legislation is preferred in such cases. Also they have more important
matters to deal with. The system of delegated legislation is considered flexible comparing it with
normal legislation as it is less time taking. It sometimes becomes important to give work to the
lower bodies so that the work is done smoothly. With change in the society new laws are brought
from time to time, experiments with regard to the new laws can be done easily due to delegation.

1
Delegated Legislation- Definition, Reasons for Growth, Classification by LAWNN.COM, August 15, 2018
https://www.lawnn.com/delegated-legislation-definition-reasons-for-growth-classification/
2
Queen v. Burah,  [1878] UKPC 26
REVIEW OF LITERATURE

 Judicial Control of Delegated Legislation in India by V.N. Shukla 3 says that “an act
repugnant to the constitution is void and any law that is framed. If void, it cannot oblige
them to give it effect, for this would be overthrown in fact what was established in
theory, and make them operative in law which was not law”. The constitution presently
has widened the ambit of judicial review and added up the burden on the judiciary due to
increase in litigation matters due delegated legislation. The article also talks about the
status quo of delegated legislation in England that no court can give judgment that the act
of the parliament is ultra vires or beyond their power but this only applies to the act of the
parliament and not to delegated legislation matters.
 Delegation of Legislative Power in India by C. H. Alexandrowicz-Alexander4 discusses
about the problem of delegation legislation and the history of delegated legislation as
well, i.e., how this system of delegated legislation started. The article discusses the 3
major problems that whether a legislature which has delegation powers can sub delegate
or not, is delegation possible irrespective of separation of powers and whether it can take
place in spite of legislative power vested by the people in a legislature.
 Doctrine of Permissible Limits of Delegated Legislation by Bhagwati Dan Charan 5 talks
about the permissible limits of administrative actions which puts a limitation on the
legislature that it cannot delegate all the powers to the administrative authorities. It also
talks about cases where the legislature has given power to executive to take punitive
actions and has also referred to some landmark judgments.
 Delegated Legislation in India by Diva Rai6 discusses about the current status quo of
delegated legislation in India, the constitutionality of delegated legislation and also about
the current status quo of delegated legislation in England and USA. The parliamentary
system of delegated legislation in different countries is also discussed in this article.

CONSTITUTIONALITY OF DELEGATED LEGISLATION

5
http://www.legalservicesindia.com/article/497/Doctrine-of-Permissible-Limits-Under-Delegated-Legislation.html
6
https://blog.ipleaders.in/delegated-legislation-in-india/
While administrative rule making, the constitutionality parameter needs to be followed, i.e., it
should follow rules laid down by the legislature in the parent act. The delegate cannot have more
power than the delegator. The principle of proportionality needs to be followed in cases of
delegated legislation especially in cases of violation of public interest litigation. Rules that are
passed by the delegated authority become a part of the parent act and if the parent act is repealed
then the notifications passed after it also stands repealed unless specified in the repealing act.
Power related to repeal and amendment is not delegated. Also the point of excessive delegation
has been discussed in many landmark cases like Humdard Dawa Khana v. Union of India 7,
Edward Mill Co. v. State of Ajmer8, etc.

PARLIAMENTARY SYSTEM OF DELEGATION

A large number of bills are placed in the parliament to be enacted as laws as there is a need to
transact government business in an expeditious manner so the act provides a legal framework
and the main policy principles. The parliament through a section in an Act delegates its
legislative powers to the government to make rules or regulation, to provide clear cut procedures
and details to supplement the Act.9

The essential legislative power of the parliament cannot be delegated and basic guidelines need
to be followed to frame rules and regulations which cannot be made by the executive which are
beyond the mandate of the Act. The rules that are framed by the government are laid before both
houses of the parliament for a specified time period before it gets final. This is because of the
reason that they can maintain strict vigilance and control over the delegate. The principle of
delegated legislation is also followed in the legislative assemblies of the state.

If the Act says that the rules framed afterwards have to be placed before the parliament then
within six months from the date of which it comes into force it has to be placed before the
parliament. Only those rules are laid on the floor of parliament which is mentioned in the parent
act. The rules are subject to negative resolution, i.e., they become law after 30 day time period if
there is no modification is made by the parliament. In cases of some rules there is an affirmative
7
1960 AIR 554
8
1955 AIR 25
9
https://thewire.in/government/delegated-legislation-parliament-executive
resolution passed, i.e. the parliament shall expressly vote for it after it is laid to become law. In
former an MP was allowed to pass a motion to annul or modify a rule then a date is fixed for
such motion by the leader of the house. The Speaker is allowed to conduct a debate in such cases
and it’s also not mandatory for him to consult the MP in fixing the dates which is a loophole as
they may delay in fixing the dates.

Another method of delegated legislation is through Standing Committee on Subordinate

CONCLUSION AND SUGGESTIONS

Parliamentary Control of delegated legislation: the hazards of erroneous delegation by Jaivir Singh and Raghab P.
10

Dash
There are no mandatory rules to prove that a rule made afterwards is to be laid before the
parliament. It became a practice since 1971 that there should be a clause in a bill that a rule has
to be laid on the floor of the parliament for a period of 30 days but there need to be some
permanency in such situations and the government needs to scrutinize this policy.

There may be a delay in date fixing for debates to be conducted in the parliament related to the
rules as there is no limitation to be followed and the MP’s are also not contacted in date fixing.

“The parliament must consider setting up additional working committees under these
committees, with legal and policy experts to help undertake a comprehensive study of all the
rules placed in the parliament. As per the existing procedure, if the government is unable to
draft the rules within six months from the date of commencement of an Act, it must seek an
extension from the committee. However, in the past, committees have  complained that
extension requests do not contain the reasons for the delay and that when there is a follow-up
on delays in framing rules, ministries are not responsive. Parliamentary procedures must make
it clear that conduct of this nature amounts to a breach of parliamentary privilege, for which
punitive action may arise.” 11

If there is something that is suggested by the MP to the committee then action on such things
should be taken within a limited time frame. The things should wholly not be left on the
chairman of the committee to decide as the policy making comes into picture and certain number
of MPs should be consulted for the same because if the MPs are consulted then there will be
better working.

Certain instances have taken place which makes it important to make a mandatory procedure to
study such rules in depth. Like “Shashi Tharoor had once referred the Shut-Down Rules
framed by the Modi government, to the chairman of the committee on Subordinate Legislation
on the grounds that it empowered the government to arbitrarily order internet shutdowns.
However, the chairman, Dilip Kumar Gandhi, a BJP MP, never took up the matter for a
study.”12

11
https://thewire.in/government/delegated-legislation-parliament-executive
12
A Threat to Our Fundamental Rights: Tharoor on Internet Shutdowns by Sushovan Sircar
https://www.thequint.com/news/law/internet-shutdowns-threat-to-fundamental-rights-india-shashi-tharoor
If there is a failure in delegation legislation then it’ll increase the burden on the judiciary
because of increase in the number of litigation matters due to delegation legislation. It is
essential to for the central government to make mandatory procedures in order to maintain
parliamentary democracy in the country.