Control over Delegated

Legislation
Module 8 and 9
Topics to be covered
• Impermissible Delegation
• Parliamentary Control
• Judicial Control
• Grounds of Excessive Delegation
Cases
• State of Bombay v.Narottamdas, AIR 1951 SC 69
• Hamdard Dawakhana v. Union of India, AIR 1960 SC 554
Impermissible Delegation
• The following functions cannot be delegated by the legislature to the
executive:
• Essential legislative functions: There is no bar in the constitution of India
against the delegation of legislative power to the executive, but the
essential legislative functions can’t be delegated to the executive at all.
Thus laying down a legislative policy is the function of legislature only and
by entrusting this power to other body, the legislature can’t escape from its
duty and create a parallel legislature.
• Repeal of law: Power to repeal a law is an essential legislative function. So,
if legislature delegates this power to executive, it will be excessive
delegation and will become ultra vires.
• Modification: Modifying the act in relation to its important aspects is
essential legislative function. So, delegation of such power to modify the
act without any limitation is not permissible.
• Exemption: Without laying down norms and policy for guidance
delegation of power of exemption to executive is not impermissible.
• Removal of difficulty: Under the guise of removing difficulty,
legislature cannot enact a Henry VIII clause and delegate a function or
power which is essential in nature or which cannot be delegated
normally.
• Retrospective operation: The power of law making in India vests in
the legislature. Parliament can pass a law retrospectively or
prospectively subject to the provisions of the constitution. But this
principle cannot be applied in the case of delegated legislation. Giving
an act a retrospective operation is an essential legislative function
which cannot be delegated by the legislature to the executive.
• Future acts: Legislature cannot delegate the power by which the executive
can adopt the laws which may be passed in future because this is an
essential legislative function.
• Imposition of tax Regarding tax statute, following points may be
considered:
• Power to impose a tax is an essential legislative function under article 265
of the constitution and cannot be delegated by to the executive.
• Legislature can enact two laws providing for two taxes of same kind on
same commodity but for different purposes.
• If a particular item is declared taxable under one enactment and non
taxable under other then there cannot be said that there is conflict
between the two enactments and one can’t repeal the other.
• Taxing statute should be construed strictly. Interpretation which favors the
assesse is accepted in case of ambiguity.
• Affairs of taxing tribunal, elected by representative are wholly immaterial
in determining excessive delegation.
• Ouster of jurisdiction of court: Jurisdiction of court is a purely
legislative function and hence it can’t be delegated to the executive.
• Offences and penalties: Making a particular act an offence and
prescribing punishment for it is an essential legislative function and
hence is not delegated. But if policy and guidelines are provided by
the legislature in determining an offence and prescribing punishment
for it then this power can validly be delegated by legislature to the
executive.
Parliamentary control over delegated
legislation
• The underlying object of parliamentary control is to keep watch over the rule-making authorities
and also to provide an opportunity to criticize them if there is abuse of power on their part.
• Parliament has control in that the enabling or parent Act passed by Parliament
• It sets out the framework or parameters within which delegated legislation is made.
• In India, the question of control on rule-making power engaged the attention of the Parliament.
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.
• With regard to the control of the legislature over delegated legislation, M.P. Jain states:
In a parliamentary democracy it is the function of the legislature to legislate.
• If it seeks to delegate its legislative power to the executive because of some reasons, it is not only
the right of the Legislature, but also its obligation, as principal, to see how its agent i.e. the
Executive carries out the agency entrusted to it.
• Since it is the legislature which grants legislative power to the administration, it is primarily its
responsibility to ensure the proper exercise of delegated legislative power, to supervise and control
the actual exercise of this power, and ensure the danger of its objectionable, abusive and
unwarranted use by the administration.
• In U.S.A., the control of the Congress over delegated legislation is highly limited because neither is
the technique of “laying” extensively used nor is there any Congressional Committee to scrutinize it.
This is due to the constitutional structuration in that country in which it is considered only the duty
of courts to review the legality of administrative rule-making.
• In England, due to the concept of Parliamentary sovereignty, the control exercised by Parliament
over administrative rule-making is very broad and effective.
• Parliamentary control mechanism operates through “laying” techniques because under the
provisions of the Statutory Instruments Act, 1946, all administrative rule-making is subject to the
control of Parliament through the Select Committee on Statutory Instruments.
• Parliamentary control in England is most effective because it is done in a non-political atmosphere
and the three-line whip does not come into operation.
• In India parliamentary control of administrative rule-making is implicit as
a normal constitutional function because the executive is responsible to
the Parliament. There are three types of control exercised:
Direct General Control
Direct but general control over delegated legislation is exercised:
(a) Through the debate on the Act which contains delegation. Members
may discuss anything about delegation including necessity, extent, type of
delegation and the authority to whom power is delegated.
(b) Through questions and notices. Any member can ask questions on any
aspect of delegation of legislative powers and if dissatisfied can give notice
for discussion under Rule 59 of the Procedure and Conduct of Business in
Lok Sabha Rules.
(c) Through moving resolutions and notices in the house. Any member may
move a resolution on motion, if the matter regarding delegation of power
is urgent and immediate, and reply of the government is unsatisfactory.
Direct special control

• This control mechanism is exercised through the technique of “laying” on the table of the House
rules and regulations framed by the administrative authority.
• The notable use of this technique was made in the Reorganization Acts of 1939 to 1969, which
authorized the President to reorganize the executive government by administrative rule-making.
• In England the technique of laying is very extensively used because all the administrative
rule-making is subject to the supervision of Parliament under the Statutory Instruments Act, 1946
which prescribes timetable.
• The most common form of provision provides that the delegated legislation comes into immediate
effect but is subject to annulment by an adverse resolution of either house.

• By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be
laid before Parliament after being made, a copy shall be laid before each House before the
legislation comes into operation .
• However, if it is essential that it should come into operation before the copies are laid, it may so
operate but notification shall be sent to the Lord Chancellor and the Speaker of the House of
Commons explaining why the copies were not laid beforehand. Under Section 6 of the Statutory
Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.
Modes
• Laying on Table • Scrutiny Committee
A. Mandatory
B. Directory
Laying on Table
In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature
is followed. It serves two purposes:

• firstly, it helps in informing the • secondly, it provides a forum to

legislature as to what all rules the legislators to question or
have been made by the challenge the rules made or
executive authorities in exercise proposed to be made.
of delegated legislation,
• In Narendra Kumar v. Union of India, the Supreme Court held that the provisions
of Section 3(5) of the Essential Commodities Act, 1955, which provided that the
rules framed under the Act must be laid before both Houses of Parliament, are
mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has no
effect unless laid before Parliament.
• However, in Jan Mohammad v. State of Gujarat, the court deviated from its
previous stand. Section 26(5) of the Bombay Agricultural Produce Markets Act,
1939 contained a laying provision but the rules framed under the Act could not be
laid before the Provincial legislature in its first session as there was then no
functioning legislature because of World War II emergency.
• The rules were placed during the second session. Court held that the rules
remained valid because the legislature did not provide that the non-laying at its
first session would make the rules invalid.
• Even if the requirement of laying is only directory and not mandatory, the rules
framed by the administrative authority without conforming to the requirement of
laying would not be permissible if the mode of rule-making has been violated.
Judicial control
• The delegated legislation can be challenged in India in the courts of law as being
unconstitutional, excessive and arbitrary.
• It can be controlled by the Judiciary on two grounds i.e., firstly, it should be on the ground
of substantial ultra vires and secondly, it should be on the ground of procedural ultra
vires.
• The criteria on which the law made by the executive can be considered as void and null by
the court is that it should not be considered inconsistent by the constitution or ultra vires
the parent act from which it has got the power of making law.
• The power of examining the delegated legislation in India has been given to the Supreme
Court and the High Court and they play an active role in controlling the delegated
legislation.
• Judicial control over delegated legislative is exercise at the following two levels:
• Challenging the delegation as unconstitutional
• Improperly exercise of Statutory power.
Substantive ultra vires
• Parent Act- unconstitutional
• Parent act delegates essential legislative functions
• When Delegated Legislation is Inconsistent with the Parent Act
• When Delegated Legislation is Inconsistent with General Law
• When the Delegated Legislation is Unconstitutional
• When the Delegated Legislation is Unreasonable and Arbitrary
• When delegated legislation is made by authority exercising its power mala
fide
• When Delegated Legislation Amounts to Sub-delegation
• When Judicial Review is Excluded
• When Delegated Legislation is Given a Retrospective Effect
• No delegated legislation can survive clashing with the provisions
granting Fundamental Rights.
• If any Acts violate the fundamental rights then the rules, regulations,
and by-laws framed under it cannot survive.
• In India as well as in America the judicial control over the delegated
legislation is based on the doctrine of ultra vires.
• Also, there are various methods through which judiciary in America
exercises control over delegated legislation.
• The two main approaches taken by the judiciary in America for
justifying the delegation of legislative power to the executive are:
• Filling up the details approach.
• Intelligible principle approach.
Excessive delegation
• Excessive delegation in administrative law refers to the phenomenon
where the legislative body grants broad decision-making powers to
administrative agencies without clear guidance or adequate checks
and balances.
• While delegation of authority is necessary for effective governance,
excessive delegation can lead to potential problems.
• Vague Legislative Mandates
• When legislation fails to provide clear guidelines or objectives,
administrative agencies are left with significant decision-making
authority.
• This lack of specificity can lead to ambiguity and uncertainty in the
exercise of delegated powers.
• Without precise directives, agencies may interpret and apply the law
differently, potentially resulting in inconsistent and arbitrary
decision-making.
• Moreover, the absence of clear boundaries may enable agencies to
exceed their intended scope, making it difficult to hold them
accountable for their actions.
• Lack of Specific Policy Direction
• Legislatures may sometimes delegate decision-making authority to
administrative agencies without establishing specific policies or
objectives.
• While delegation is intended to allow agencies to develop and
implement policies that align with the legislative intent, the absence
of clear policy guidance can lead to wide discretion.
• This can result in agencies shaping and influencing policy outcomes
based on their own interpretation and priorities, potentially deviating
from the original legislative intent.
• Technical Complexity
• Certain areas of governance involve technical complexity and
specialized knowledge that legislators may lack.
• In such cases, delegating decision-making authority to administrative
agencies with expertise in the relevant field may be seen as a
practical solution.
• However, the transfer of authority to agencies with specialized
knowledge comes with the risk of excessive delegation.
• Without clear boundaries and oversight, agencies may have
unchecked power to develop policies and make decisions that
significantly impact individuals and communities.
• Striking the right balance between delegation and maintaining
democratic accountability is crucial in such situations.
• Emergency or Crisis Situations
• In times of urgency, legislatures may delegate broad powers to
administrative agencies to allow for swift and effective responses to
emerging challenges.
• Emergency powers can grant agencies the authority to take
immediate action without going through the normal legislative
process.
• While this can be necessary to address urgent issues, such as public
health emergencies or natural disasters, it is important to ensure that
the delegation of power is temporary, limited to the specific
emergency, and subject to appropriate safeguards.
• Without adequate oversight, emergency powers can lead to
prolonged and unchecked authority, potentially undermining
democratic principles and individual rights.
Advantages of Excessive Delegation
• Expertise and Efficiency
• Delegation allows administrative agencies with specialized knowledge
and expertise to make decisions in their respective fields.
• These agencies often have a deeper understanding of the technical
complexities involved in specific policy areas.
• By delegating decision-making authority, legislatures can leverage the
expertise of these agencies to ensure more informed and effective
policy outcomes.
• This can lead to efficient decision-making processes, as agencies are
equipped to handle intricate matters that may be beyond the scope
of legislative bodies.
• Flexibility
• Excessive delegation provides administrative agencies with the
flexibility to adapt and respond to changing circumstances.
• Unlike rigid legislative provisions, which may take a significant
amount of time to amend or update, delegated decision-making
allows agencies to adjust policies quickly in response to emerging
issues or evolving needs.
• This flexibility enables agencies to address complex and dynamic
challenges effectively, without being constrained by outdated or
inflexible legislative frameworks.
• Policy Experimentation
• Excessive delegation offers administrative agencies the opportunity
to conduct pilot programs and policy experiments.
• By allowing agencies to test innovative approaches and alternative
solutions, delegated decision-making promotes creativity and
exploration of new ideas.
• Policy experimentation enables agencies to gather valuable data and
feedback, facilitating evidence-based policymaking.
• This can lead to the identification of effective strategies and the
development of more refined policies that address complex problems
with greater precision.
• Time and Resource Efficiency
• Delegating decision-making authority to administrative agencies
allows legislatures to focus on broader policy issues and strategic
oversight.
• By entrusting agencies with specific decision-making powers,
legislatures can save time and resources that would otherwise be
spent on detailed deliberations of technical matters.
• This enables legislative bodies to concentrate on critical policy
debates, conducting thorough evaluations, and providing general
guidance while leaving the operational and technical details to the
expertise of administrative agencies.
• The Supreme Court of India in the case of St. Johns Teachers Training
Institute v. National Council for Teacher Education, led down the
grounds that would assist the court to decide whether the matter fall
under the ambit of permissible delegation or amounts to
excessiveness. The grounds were:
• The exposition of the law at hand;
• Grounds of application of the statute along with its Preamble;
• Scheme of the law;
• The facts and circumstances serving as a background for the law to be
enacted.
• The doctrine of excessive delegation is important for ensuring due
process because it emphasizes the importance of delegation while
also highlighting the negative effects of unjustified and excessive
delegation of powers exercised by administrative authorities.
• After understanding Excessive Delegation, it is pretty clear that
legislature can delegate legislative power only when the legislature
lays down the skeletal structure and limits to which the delegate can
exercise the delegated power.
• In the United States, the subject of what authorities may be
delegated to whom and how much arose in the 19th century.
• In the case of Wayman v. Southard, the US courts differentiated
between “important subjects” and “mere details.” They said that “a
general provision may be made, and the power given to those who
are to act under such general provision, to fill up the details.”