ADMINISTRATIVE LAW

MODULE 2

Delegated legislation (also known as subordinate or secondary legislation) refers to laws

or rules made by an authority other than the legislature, but with the legislature's
permission or authorization.

In simpler terms, the legislature (like Parliament) passes a parent or enabling Act, and
under that authority, it allows other bodies—like government ministers, departments, or
local authorities—to make more detailed rules or regulations.

Key Features:

1. Made under authority: It derives power from a statute (known as the parent Act).
2. Flexible and detailed: It helps in adding details or administrative rules which the
main legislation can't cover due to time or complexity.
3. Efficient: Speeds up the law-making process, especially for technical or rapidly
changing areas.

Types of Delegated Legislation:

1. Statutory Rules/Orders
2. Regulations
3. Bye-laws
4. Notifications
5. Schemes

Why Delegated Legislation is needed:

 To save time in Parliament.

 To utilize expertise of technical bodies.
 To adapt to changing circumstances without amending the main law.
 To implement laws efficiently at local or specialized levels.

Checks on Delegated Legislation:

 Judicial Control: Courts can strike down delegated legislation if it's ultra vires
(beyond the powers).
 Legislative Control: Parliament can review or annul delegated laws.
 Procedural Control: Requirements like publication, consultation, or laying before
Parliament.

The constitutionality of delegated legislation refers to whether the delegation of law-

making power by the legislature to an administrative authority complies with the provisions
and principles of a constitutional framework, especially the separation of powers and rule
of law.
 Constitutionality of Delegated Administration
Position in India (or similar parliamentary democracies)

The Constitution of India does not explicitly prohibit delegated legislation, and courts
have generally upheld it—with limitations. However, legislature cannot delegate its
essential legislative functions, especially those involving policy-making or laying down
principles.

Constitutionally Valid When:

1. There is a clear enabling provision in the parent statute.

2. The legislature lays down the policy, principles, and guidelines, and the delegated
authority only fills in the details.
3. It does not violate fundamental rights or other constitutional mandates.

Unconstitutional When:

1. Excessive delegation: If the legislature gives unfettered or unguided discretion

without any policy or standards.
2. Sub-delegation without permission: If a delegated authority further delegates the
power without authorization.
3. If the delegated legislation is arbitrary, unreasonable, or violates fundamental
rights under Part III of the Constitution.

Doctrine of Excessive Delegation

Courts apply this doctrine to strike down laws that give vague or blanket powers to the
executive, as that would amount to surrendering essential legislative functions.

📌 Case Law:
In Re Delhi Laws Act (1951) – The Supreme Court laid down the principle that essential
legislative functions cannot be delegated, but ancillary functions may be.

Judicial Review

Delegated legislation is subject to judicial review. The courts can invalidate it if it is:

 Ultra vires (beyond the scope of the parent act),

 Contrary to the Constitution, or
 Unreasonable or arbitrary.

Classification of Delegated Legislation

The classification of delegated legislation helps us understand the different forms and
methods through which legislative powers are delegated by the legislature to other
authorities. It can be categorized based on form, procedure, and authority involved.
1. Based on Nature or Form:

a. Statutory Instruments / Rules / Regulations

 Made by ministers or departments under the authority of a statute.

 Used to detail out provisions of a parent Act.

b. Bye-laws

 Made by local authorities, municipalities, or public corporations.

 Applicable only in the area or to the body that made them.

c. Orders / Notifications

 Usually used for executive decisions or administrative instructions.

 Often specify dates, exemptions, or implementation procedures.

d. Schemes

 Detailed frameworks made under specific statutes (e.g., social welfare or industrial
schemes).

2. Based on Authority:

a. Ministerial / Executive Legislation

 Made by government ministers or departments (e.g., Ministry of Environment

framing rules under Environment Act).

b. Local Legislation

 Made by local self-governments (e.g., municipalities, panchayats).

c. Autonomous Body Legislation

 Made by bodies like universities, professional councils, or public corporations.

3. Based on Procedure:

a. Positive (Affirmative) Resolution Procedure

 Delegated legislation is laid before the legislature, and it must be expressly

approved.
b. Negative Resolution Procedure

 Legislation becomes effective immediately but can be annulled if the legislature

objects within a specified period.

c. Laying without Debate

 Laid before the legislature for formality, often without any actual discussion or
power to amend.

4. Based on Scope or Purpose:

a. Conditional Legislation

 The law is complete, but its operation depends on the fulfillment of certain conditions
or a government decision (e.g., commencement by notification).

b. Subordinate / Ancillary Legislation

 Fills in the technical or procedural details left by the parent statute.

Legislative control of delegated legislation: Laying procedures and their efficacy

Introduction

Legislative control is a constitutional safeguard to ensure that delegated legislation

remains within the boundaries set by the parent statute and adheres to democratic
accountability. One of the primary tools for such control is the laying procedure, where
delegated legislation is presented before the legislature for scrutiny.

Laying Procedures: Types

1. Simple Laying (Laying without further action)

o The delegated legislation is laid before the legislature, usually after it comes
into effect.
o No obligation to discuss or approve.
o Example: Many rules under Indian statutes follow this method.
o ✅ Advantage: Quick implementation.
o ❌ Limitation: Often ignored or overlooked due to heavy legislative workload.

2. Negative Resolution Procedure

o The delegated legislation is laid before the legislature and comes into effect
immediately.
o It continues to remain in force unless annulled by the legislature within a
specified time (e.g., 30 days).
o ✅ Advantage: Efficient and assumes approval unless contested.
o ❌ Limitation: Requires proactive disapproval, which rarely happens.

3. Affirmative Resolution Procedure

 o The delegated legislation does not come into force unless and until it is
expressly approved by the legislature.
o ✅ Advantage: Provides stronger control and scrutiny.
o ❌ Limitation: Delays implementation and burdens legislative time.

4. Super-affirmative Procedure (rare)

o Involves extensive consultation, draft publication, and an opportunity for
objections before legislative approval.
o ✅ Advantage: Ensures thorough democratic input.
o ❌ Limitation: Time-consuming and used mostly for sensitive matters.

Efficacy of Laying Procedures: A Critical Assessment

Criteria Pros Cons

Brings delegated laws to the Often gets buried in legislative

Transparency
public record paperwork

Enables legislature to annul or

Accountability Rarely acted upon in practice
amend rules

Negative laying allows fast Affirmative laying slows down the

Speed vs. Scrutiny
implementation process

Legislative Practically weak due to lack of time,

Theoretically ensures oversight
Involvement interest, or expertise

Judicial Viewpoint

Courts in India have held that laying provisions, if mandatory and not complied with, can
render the delegated legislation invalid (e.g., Atlas Cycle Industries v. State of Haryana).

Committees on Delegated Legislation: Constitution, Functions & Effectiveness

Introduction

To ensure parliamentary oversight of delegated legislation, both Houses of the Indian

Parliament and various State Legislatures have established Committees on Subordinate
(Delegated) Legislation. These committees examine whether the executive-made rules,
regulations, and by-laws conform to the powers granted by the parent act.

Constitution of the Committee

a. At the Union Level:

 Lok Sabha Committee on Subordinate Legislation

 o Constituted under Rule 317 of the Rules of Procedure and Conduct of
Business in Lok Sabha.
o 15 members nominated by the Speaker.
o Reflects party strength in the House.
 Rajya Sabha Committee on Subordinate Legislation
o Constituted under Rule 204 of the Rules of Procedure and Conduct of
Business in Rajya Sabha.
o 15 members nominated by the Chairman of the Rajya Sabha.

b. At the State Level:

 Most state legislatures also have similar committees with 10–15 members, nominated
by the Speaker.

Functions of the Committee

The main role of the committee is to scrutinize delegated legislation to ensure it:

1. Is in accordance with the Constitution and parent Act.

2. Does not make excessive use of powers granted to the delegate.
3. Is not retrospective unless authorized.
4. Does not impose unauthorized taxes, penalties, or fees.
5. Does not go beyond the scope of the parent legislation (ultra vires).
6. Is clear, unambiguous, and free from defects.
7. Is laid before Parliament as required.

🧠 Note: The committee does not question policy matters, only the legal and procedural
propriety of delegated legislation.

Effectiveness of the Committees

✅ Strengths:

 Acts as a specialized watchdog over executive rule-making.

 Enables detailed examination that is not possible in full House debates.
 Ensures ministerial accountability for delegated powers.
 Helps maintain constitutional balance between legislature and executive.

❌ Limitations:

 Recommendations are advisory, not binding.

 Limited resources and expertise, especially in technical areas.
 Low public visibility, so limited pressure for reform.
 Volume of delegated legislation makes scrutiny difficult.
 Sometimes reports are delayed or not debated in the House.

Suggestions to Improve Effectiveness

 Make committee reports mandatory for discussion in Parliament.

  Appoint technical/legal experts to assist the committee.
 Increase transparency and accessibility of rules and committee reports.
 Strengthen follow-up mechanisms to ensure government action on recommendations.

Procedural Control in Delegated Legislation

Introduction

Procedural control refers to the mechanisms and steps that ensure transparency, fairness,
and accountability in the process of making delegated legislation. While legislative and
judicial controls focus on what powers are used, procedural control focuses on how those
powers are exercised by the delegate (usually an executive authority).

Key Procedural Controls

1. Publication
o Requirement to publish delegated legislation in the Official Gazette or other
recognized medium.
o Ensures public awareness and accessibility.
o Without proper publication, rules may be declared unenforceable.
o ⚖️Case Law: Harla v. State of Rajasthan (1951) – SC held that unpublished
rules were not enforceable.

2. Laying Before the Legislature

o Acts as both legislative and procedural control.
o Ensures that Parliament is informed of the rules being made.
o Types: Simple, Negative, Affirmative, Super-affirmative (as explained in
earlier discussion).

3. Prior Consultation
o Stakeholders or affected parties are given a chance to provide input.
o Promotes participatory governance and enhances legitimacy.
o Especially important in technical or environmental regulations.

4. Public Hearings or Notice

o Issuing draft rules for comments, holding hearings, or issuing notifications
inviting objections.
o Common in regulatory frameworks (e.g., SEBI, TRAI).

5. Explanatory Memoranda
o Sometimes, authorities are required to submit a statement of objects and
reasons for making a rule or amendment.
o Helps in understanding the intent and policy behind the rule.

6. Registration
o Many jurisdictions require that delegated legislation be registered in a central
register of statutory instruments.
 o Aims to standardize and catalog rules for easy reference.

Importance of Procedural Control

Benefits Explanation

Transparency Ensures rules are available to those affected.

Accountability Prevents arbitrary or secret rule-making.

Public Participation Encourages inclusive and informed decision-making.

Judicial Review Protection Proper procedure helps protect against challenges in court.

Judicial Stance on Procedural Irregularity

Courts have held that failure to follow essential procedural steps can invalidate delegated
legislation, especially if those procedures are mandatory (not just directory).

📌 Example: If a parent Act requires prior publication or consultation before a rule is made
and it's ignored, the rule may be held ultra vires.

Judicial Control of Delegated Legislation

Introduction

Judicial control is one of the strongest safeguards against the misuse or abuse of delegated
legislative powers. The judiciary ensures that delegated legislation remains within the
limits set by the Constitution and the enabling (parent) Act. Courts use the power of judicial
review to assess the validity and constitutionality of subordinate legislation.

Grounds for Judicial Control

1. Ultra Vires Doctrine (beyond the powers)

Delegated legislation can be struck down if it exceeds the authority granted by the
enabling Act.

o Substantive Ultra Vires: When the content of the delegated legislation goes
beyond the powers granted by the parent Act.

⚖️Case: Keshavananda Bharati v. State of Kerala – Reaffirmed that every

law must be within constitutional limits.

o Procedural Ultra Vires: When mandatory procedures (like publication,

consultation, or laying before the legislature) are not followed.

⚖️Case: Harla v. State of Rajasthan – Unpublished rules held invalid.

 2. Violation of Fundamental Rights

If a piece of delegated legislation infringes upon any fundamental right under Part
III of the Constitution, it can be declared unconstitutional.

⚖️Case: D. S. Garewal v. State of Punjab – Regulations affecting the right to equality

struck down.

3. Arbitrariness or Unreasonableness

Courts strike down rules that are manifestly arbitrary, discriminatory, or contrary
to natural justice.

⚖️Case: Air India v. Nergesh Meerza – Struck down discriminatory regulations for
being arbitrary.

4. Malafide Exercise of Power

If delegated power is used in bad faith or for an improper purpose, courts can
intervene.

5. Excessive Delegation

While the legislature may delegate ancillary functions, essential legislative functions
(like policy-making) cannot be delegated. If a law delegates unguided or unfettered
discretion, courts may strike down the enabling provision itself.

⚖️Case: In re Delhi Laws Act (1951) – Laid the foundation for limiting excessive
delegation.

Doctrines Applied by Courts

 Doctrine of Ultra Vires

 Doctrine of Reasonableness
 Principles of Natural Justice
 Doctrine of Legitimate Expectation

Judicial Review Process

When a rule is challenged, courts examine:

1. Whether it is within the scope of the enabling Act.

2. Whether procedural requirements have been met.
3. Whether the rule violates any constitutional provisions.
If any of these fail, the delegated legislation may be declared void ab initio (invalid from the
outset).

Limitations of Judicial Control

 Courts exercise restraint unless there is clear illegality or unconstitutionality.

 Technical expertise of delegated authorities is respected.
 Judicial review is reactive, not proactive (requires someone to challenge the rule).