Delegated legislature

The Constitution of Indian empowers Legislature to make laws for the country. However,
various activities are involved in the welfare of the state, and it is not possible for the
legislature to perform all the functions by itself. In such situation, the delegated legislation
comes into the picture. Delegated Legislature is one of the essential elements of
administration whereby the executive has to perform certain legislative functions.

Delegated legislation (also known as secondary legislation or subordinate legislation or

subsidiary legislation) is a process by which the executive authority is given powers by
primary legislation to make laws in order to implement and manage the requirements of that
primary legislation. It is legislation made by a person or body other than Parliament.

Reasons for Delegated Legislation

- The process of delegated legislation enables the Government to make a law without
having to wait for a new Act of Parliament to be passed.
- Delegated legislation empowers the authority to modify or alter sanctions under a
given statute or make technical changes relating to law.
- Delegated legislation plays a very important role in the process of making of law as
there is more delegated legislation each year than there are Acts of Parliament.
- Delegated legislation has the same legal standing as the Act of Parliament from which
it was created.

Delegated Legislation is important because of several reasons. They are-

1. It enables the Government to make a law without having to wait for a new Act of
Parliament to be passed
2. It saves time and avoids overloading of the Parliament. Parliament delegates the power by
which the delegated legislation can be amended and / or made without having to pass an Act
through parliament. As the log procedure of enactment of law through, the Parliament is
avoided and time is saved. At the same time resources are also saved
3. Many times the local authority knows the ground situation correctly and objectively. Thus,
the local authority can make law in accordance with what their locality needs. Thus,
delegated legislation allows law to be made by those who have the relevant expert
knowledge.
4. Delegated legislation is very important in dealing with an emergency situation as it arises
without having to wait for an act to be passed through parliament to resolve the particular
situation
5. many times a situation arises that Parliament had not anticipated at the time it enacted the
piece of legislation. In such situation delegated legislation can be used to cover the loopholes
in the Act.
6. It empowers the authority to modify or alter sanctions under a given statute or make
technical changes relating to law.
7. It enables the Government to meet the changing needs of society at the earliest.

Growth of Delegated Legislature

The following factors can be regarded as principal factors that have contributed to the growth
of delegated legislation

1. Technical Issues – Legislative authorities are not experts to deal with highly
technical matters. When the subject matter under the Act is completely technical in
 Delegated legislature
nature, then a consultation of experts is required. Therefore, legislative power may be
granted to experts for them to deal with the technical issues i.e. labour, tax, gas,
atomic energy, drugs, electricity etc.
2. Complexity of the Modern State: In a welfare state, the Government has to look
after many issued related to citizens including employment, health, education,
regulating trade, industry, commerce, etc. This resulted in the complexity of modern
administration and the expansion of its functions. The administration has to look after
the economic and social issues. The objective of the welfare state cannot be achieved
without delegated legislation.
3. Emergency situation – During the time of emergency quick and decisive action is
very necessary, and at the same time, it is to be kept confidential. The Parliament is
not at all fit to serve this end. Therefore, the executive has delegated the power to
make rules to deal with situations.
4. Flexibility - To adapt the law according to future contingencies or any other
adjustments which are to be made in the in future can be done efficiently and
effectively only when a small body is given the powers to do so. Otherwise amending
acts will become necessary and that would cost wastage of time and money.
Therefore, delegation to the departments becomes necessary.
5. Local Matters - These are matters which concern only a particular locality or a
particular group of the profession. Any legislation on these matters needs a
consultation with the people of that particular locality, group or profession. Thus,
regarding such legislation, the departments are given powers to make changes and
rules in consultation with the person acquainted and with interested in it.
6. Experimentation - Some Acts of Parliament provides for their coming into operation
in different localities on different dates according to their inability, and as a matter of
experiment. For this purpose, the ministers are given the power to make orders about
the date of its application.

Advantages of Delegated Legislation

 Saves cost and time when dealing with emergencies.
 More flexible as compared to non-delegated legislation.
 Helps in finding the bottlenecks.
 Sets up a new base for amendment of statutes which is the demand of time.
 Helps in relieving the burden on Parliament.
 Affected person’s interest is maintained.

Criticism of Delegated Legislation

 More claims for review of legislation.
 Influence of superior courts may cause interference.
 Authorities may follow the dictatorial principle.
 Increase in corruption and misuse of powers.
 Lack of legal knowledge among common people may trigger unavoidable situations.
 Slowly, the executive will start encroaching upon the legislature if delegation is
obscure.
 It is against the doctrine of separation of powers.
 Executive becomes more powerful.

Classification of Delegated legislation:

 Delegated legislature
Delegated legislation is classified based on the principles that follow:
1. Title based classification: An Act may empower an authority to make regulations,
rules or by-laws, to make orders, or to give directions.
2. Discretion-based classification (Conditional Legislation): The executive may
receive a discretion in order to make the Act operational upon meeting particular
condition. Such legislation is known as conditional / contingent legislation.
3. Purpose-based classification: It is based on the different purposes it is made to serve
like Enabling Act, Alteration Act, Taxing Act, Supplementary Act, Classifying and
Fixing Standard Acts, Penalty for Violation Acts, etc.
4. Authority-based classification (Sub-Delegation): It is based on the position of the
authority making the rules. At times, the rule-making authority delegates to itself or to
some other subordinate authority a further power to issue rules; such exercise of rule-
making power is known as sub-delegated legislation. Rule-making authority cannot
delegate its power unless the power of delegation is contained in the enabling Act.
5. Nature-based classification (Exceptional Delegation): Classification of
administrative rule-making may also be based on the nature and extent of delegation.
The committee on Ministers Powers distinguished two types of parliamentary
delegation:
a. Normal Delegation:
(i) Positive: Where the limits of delegation are clearly defined in the enabling Act.
(ii) Negative: Where the power delegated does not include power to do certain
things.
b. Exceptional Delegation: Instances of exceptional delegation may be:
(i) Power to legislate on matters of principle.
(ii) Power to amend Acts of Parliament.
(iii) Power conferring a wide discretion that it is almost impossible to know the
limits.
(iv) Power to make rules without being challenged in a court of law.

Such exceptional delegation is also known as Henry VIII clause to indicate executive
autocracy. Henry VIII was the king of England in the 16th Century. He imposed his autocratic
will through the instrumentality of Parliament, so he is described as a “despot under the forms
of law”. Under this clause, very wide powers are given to administrative agencies to make
rules, including the power to amend and repeal.

In India, under Article 372(2) of the Constitution, the President has been delegated the power
to adapt, amend and repeal any law in force to bring it in line with the provisions of the
Constitution, and the exercise of such power has been made immune from the scrutiny of
courts.

Functions which can be delegated (Permissible limits)

The following are the permissible delegation:
1. Commencement of a Statute - Several statutes contain an ‘appointed day’ clause,
which empowers the Government to appoint a day for the Act to come into force. In
such cases, the operation of the Act depends on the decision of the Government e.g.
Section 1(3) of the Consumer Protection Act, 1986 provides that the Act ‘shall come
into force on such date as the Central Government may by notification appoint.’
 Delegated legislature
2. Supplying the details – If the legislative policy is formulated by the legislature, the
function of supplying details may be delegated to the executive for giving effect to the
policy. This is the most usual form of delegation and is found in several statutes.
Example - Section 3 of the All India Services Act, 1951 authorizes the Central
Government to make rules to regulate conditions of service in the All India Services.
3. Inclusion - Sometimes, the legislature passes an Act and makes it applicable, in the
first instance, to some areas and classes of persons, but empowers the Government to
extend the provisions thereof to different territories, persons or commodities, etc.,
e.g., the Transfer of Property Act, 1882 was made applicable to the whole of India
except certain areas, but the Government was authorized to apply the provisions of the
Act to those areas also
4. Exclusion - There are some statutes that empower the Government to exempt from
their operation certain persons, territories, commodities, etc. Section 36 of the
Payment of Bonus Act, 1965 empowers the Government to exempt any establishment
or a class of establishments from the operation of the Act. Such provision introduces
flexibility in the scheme of the legislation.
5. Suspension - Some statutes authorize the Government to suspend or relax the
provisions contained therein, e.g. under Section 48(1) of the Tea Act, 1953, the
Central Government is empowered under certain circumstances to suspend the
operation of all or any of the provisions of the said Act.
6. Application of existing laws - Some statutes confer the power on the executive to
adopt and apply statutes existing in other States without modifications to a new area.
7. Modification – Some statues authorizing the executive to modify the existing statute
before application. This is really a drastic power as it amounts to an amendment of the
Act, which is a legislative function, but sometimes, this flexibility is necessary to deal
with local conditions.
8. Prescribing Punishment - In some cases, the legislature delegates to the executive
the power to take punitive action, e.g. under Section 37 of the Electricity Act, 1910,
the Electricity Board is empowered to prescribe punishment for breach of the
provisions of the Act subject to the maximum punishment laid down in the Act.
9. Framing rules, regulations etc - A delegation of power to frame rules, bye-laws,
regulations, etc. is not unconstitutional, provided that the rules, bye-laws and
regulations are required to be laid before the legislature before they come into force
and the legislature has the power to amend, modify or repeal them.
10. Removal of difficulties (Henry VII clause) - Power is sometimes conferred on the
Government to modify the provisions of the existing statutes for the purpose of
removing difficulties. When the legislature passes an Act, it cannot foresee all the
difficulties which may arise in implementing it. The executive is, therefore,
empowered to make necessary changes to remove such difficulties. Such provision is
also necessary when the legislature extends a law to a new area or to an area where
the socio-economic conditions are different. Generally, two types of ‘removal of
difficulties’ clauses are found in statutes.
a. A narrow one, which empowers the executive to exercise the power of
removal of difficulties consistent with the provisions of the parent Act; e.g.
Section 34(1) of the Administrative Tribunals Act, 1985 reads thus: “If any
difficulty arises in giving effect to the provisions of this Act, the Central
Government may, by an order published in the Official Gazette, make such
 Delegated legislature
provisions not inconsistent with the provisions of this Act as appear to it to be
necessary or expedient for removing the difficulty.”
b. A wide one, which empowers the executive in the name of removal of
difficulties to modify even the parent Act or any other Act. The classic
illustration of such a provision is found in the Constitution itself.
In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha AIR 1967, the Supreme
Court was called upon to decide the legality of such a clause. Section 37(1) the
Payment of Bonus Act, 1965 empowered the Central Government to make
such orders not inconsistent with the purposes of the Act, as might be
necessary or expedient for the removal of any doubts or difficulties. The Court
by a majority of 3: 2 held Section 37 ultra vires on the ground of excessive
delegation since the Government was made the sole judge of whether an
difficulty or doubt had arisen, whether it was necessary or expedient to
remove such doubt or difficulty and whether the order made was consistent
with the provisions of the Act. Again, the order passed by the Central
Government was made ‘final’. Thus, in substance, legislative power was
delegated to the executive authority, which was not permissible.

Functions which cannot be delegated

The following functions shall not be delegated by the legislature to the executive
1. Essential legislative functions - Even though there is no specific bar in the
Constitution of India against the delegation of legislative power by the legislature to
the executive, it is now well-settled that essential legislative functions cannot be
delegated by the legislature to the executive. The legislative policy must be laid down
by the legislature itself and by entrusting this power to the executive; the legislature
cannot create a parallel legislature.
2. Repeal of law - Power to repeal law is essentially a legislative function, and
therefore, delegation of power to the Executive to repeal a law is excessive delegation
and is ultra vires.
3. Modification - Power to modify the Act in its important aspects is an essential
legislative function and, therefore, delegation of power to modify an Act without any
limitation is not permissible. However, if the changes are not essential in character,
the delegation is permissible.
4. Exemption – What is stated in case of modification applied in case of exemption
also, and the legislature cannot delegate the power of exemption to the executive
without laying down the norms and policy for the guidance of the latter.
5. Removal of difficulties - Under the guise of enabling the executive to remove
difficulties, the legislature cannot enact a Henry VIII clause and thereby delegate
essential legislative functions to the executive, which could not otherwise have been
delegated.
6. Retrospective operation - The legislature has plenary power of lawmaking and in
India, Parliament can pass any law prospectively or retrospectively subject to the
provisions of the Constitution. But this principle cannot be applied in the case of
delegated legislation. Giving an Act retrospective effect is essentially a legislative
function and it cannot be delegated.
7. Future Acts - The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can
 Delegated legislature
adopt the laws which may be passed in the future, as this is essentially a legislative
function.
8. Imposition of Taxes - The power to impose a tax is essentially a legislative function.
Under Article 265 of the Constitution, no tax can be levied or collected save by
authority of law, and here ‘law’ means a law enacted by the competent legislature and
not made by the executive. Therefore, the legislature cannot delegate the essential
legislative function of the imposition of a tax to executive authority.
9. The ouster of jurisdiction of courts - The legislature cannot empower the executive
by which the jurisdiction of courts may be ousted. This is a purely legislative
function.
10. Offenses and Penalty - The making of a particular act into an offense and
prescribing punishment for it is an essential legislative function and cannot be
delegated by the legislature to the executive. However, if the legislature lays down the
standards or principles to be followed by the executive in defining an offense and
provides the limits of penalties, such delegation is permissible.

Conditional Legislation, Sub-delegation and Administrative instructions

When the law is complete and certain conditions are laid down as to how and when the law
would be applied by the delegate, it is conditional legislation. It includes no law-making
powers but only the power of determining when it should come into force or when it should
be applied.

Conditional Legislation can be found in the occurrences where -

I. The legislature empowers the executive to expand the activity of a current law to a specific
area or region.
II. To determine and decide the time of application of an Act to a given area.
III. To broaden the span of a Temporary Act, subject to maximum period fixed by the
legislative assembly.
IV. To determine and decide the degree and limits within which the statute or Act should be
employable and operative.
V. To introduce a special law if the contemplated situation has arisen in the opinion of the
government.

Conditional Legislation can be classified in 3 categories–

1. The Legislature has completed the task of enacting a Statute, the entire structure of the
legislation is ready but it does not come in to force immediately. It is brought into force by
the executive when certain conditions are satisfied.
2. The delegate has to decide whether and under what circumstances a completed Act of the
parent legislation which has already come into force is to be partially withdrawn from
operation in a given area or in given cases so as not to be applicable to a given class of
persons who are otherwise admittedly governed by the Act.
3. The act comes into force immediately, but administrative authorities are given the power to
apply the act to certain classes of persons, leaving other classes of persons outside the ambit
of the act.

In Jatindra Nath v. Province of Bihar, it was held that there could be no delegated
legislation in India beyond conditional legislation.
 Delegated legislature

Sub-delegation
Sub delegated legislation means delegating the delegated powers further OR when a statute
confers legislative powers to an administrative authority and they further delegate to some
other authority or agency then this process is known as sub delegation of legislative powers.

The first case is A.K. Roy and Anr. vs. State Of Punjab and Ors, this was the first case in
India that established the principle that delegated authority or powers can not be further
delegated.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:
1. Parliamentary or Legislative Control
2. Executive or Administrative Control
3. Judicial Control

Parliamentary or Legislative Control

It is the function of the Legislature to legislate, but if it seeks to give this power to the
executive because of some circumstances, it is not only the right of the Legislature, but also
its duty, to see how its agent (executive) carries out the agency entrusted to it. Since it is the
legislature which delegates legislative power to the administration, it is primarily for it to
supervise and control the actual exercise of this power and ensure against the danger of its
objectionable, abusive and unwarranted use by the administration.

Parliament can confer legislative power upon anyone however, it must also ensure that the
powers are properly exercised by the administration and there is no misuse of authority by the
executive. Arvind Singh v. State of Punjab 1979 SCC, Krishna Iyer J. rightly stated that
parliamentary control over delegated legislation should be a living continuity as a
constitutional necessity.

Mode
The legislative Control can be effectively exercised by
1. Memorandum on Delegation
2. Laying procedure
a. Direct general control
b. Direct special control
3. Indirect Control / Scrutiny Committees

1. Memorandum on Delegation - The first step in the process of parliamentary control of

delegated legislation is taken at the stage of delegation. A rule of procedure of each
house of parliament requires that bill involving proposal for delegation of legislative
power shall be “accompanied by a memorandum explaining such proposals and
drawing the attention of their scope, and stating also whether they are of exceptional
or normal character”.
2. Laying Procedure
a. Direct but general control over delegated legislation is exercised
 Delegated legislature
i. Through debate on Act containing delegation: Members may discuss
anything about delegation including necessity, extent, type of delegation and
the authority to whom power is delegated.
ii. Through questions and notices: Any member may ask questions on any
aspect of the 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.
iii. 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 the reply of the government is unsatisfactory.
iv. Through vote on grant: Whenever the budget demands of ministry are
presented, any member may propose a cut and thereby bring the exercise of
rule-making power by that Ministry under discussion.
v. Through a private Member's Bill seeking modification in the parent Act,
or through a debate at the time of discussion on the address by the President to
the joint session of Parliament, members may discuss delegation. However,
these methods are rarely used.
b. 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.
In India, Atlas Cycle Industries Ltd v. State of Haryana, 1979 SCC, the
Supreme Court noticed that there are three different link clauses that assume
different forms depending on the degree of control which the legislature may
like to exercise namely as well as the select committee on delegated legislation
summarised the procedure under seven heads:
1. Laying without further procedures.
2. Laying subject to affirmative resolution.
3. Laying subject to negative resolution.
4. Laying in draft subject to negative resolution.
5. Laying in draft subject to an affirmative resolution.
6. Laying with the deferred operation.
7. Laying with immediate effect but subject to annulment

In the absence of any general law in India regulating the laying procedure, the scrutiny
committee made the following suggestions:
1) All Acts of Parliament should uniformly require that rules be laid on the
table of the house "as soon as possible".
2) The laying period should uniformly be 30 days from the date of final
publication of rules.
3) The rule will be subject to such modification as the house may like to make

3. Indirect Control / Scrutiny Committees - laying on the table has not always been held
to be mandatory. Even if that requirement is complied with, mere laying of rules
before Parliament would not be of much use unless the rules were properly studied
and scrutinized. And, therefore, with a view to strengthening Parliamentary control
over delegated legislation, Scrutiny Committees are established. In India, there are
two Scrutiny Committees:
1) the Lok Sabha Committee on Subordinate Legislation
 Delegated legislature
2) the Rajya Sabha Committee on Subordinate Legislation

The main function of the committee shall be to examine the following:

1. Whether rule are according to general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.

The committee on subordinate legislation has made the following recommendations in order
to streamline the process of delegated legislation in India:
1. The power of Judicial review should not be taken away or curtailed by the rules.
2. A financial Levy or tax should not be imposed by rules.
3. The language of the rules should be simple and clear and not complicated or
ambiguous.
4. Rules should not be given retrospective operation unless such a power has been
expressly conferred by the parent Act, as they may prejudicially affect the vested
rights of a person.
5. Legislative policy must be formulated by the legislature and laid down in the statute,
and power to supply details may be left to the executive and can be worked out
through the rules made by the administration.
6. Sub delegation in very wide language is improper and some safeguards must be
provided before a delegate is allowed to sab delegate his authority to another
functionary.
7. Discriminatory rules should not be framed by the administration.
8. Rules should not travel beyond the rule-making power conferred by the parent Act.
9. They should not be inordinate delay in making rules by the administration
10. The defects pointed out to the administration should be declared as soon as possible.
11. The rules framed by the administration and required to be laid before the house by the
parent Act should be late before Parliament as soon as possible, and whenever there is
inordinate delay, an explanatory note giving the reasons for such delay should be
appended to the rules so laid.
12. The final authority for interpretation of rules should not be with the administration.
13. Rules should contain short titles explanatory notes, references to earlier amendments
for convenience of location, ready references and proper understanding.
14. Sufficient publicity should be given to the statutory rules and orders

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
 Delegated legislature

It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council.

Judicial Control
The court has power to strike down both legislative enactments and executive actions on the
ground of ultra vires. Judicial control over delegated legislature can be exercised at the
following two levels
- Delegation may be challenged as unconstitutional
- That the statutory power has been improperly exercised.

The Doctrine of Ultra-vires

The expression ultra-vires means beyond the capacity or power of the person or authority
who has sone a particular act. The effect of an ultra vires act is that it has no legal effect
whatsoever, it is a nullity in the eyes of law. The doctrine has two aspects
- Substantive ultra vires
- Procedural ultra vires

Substantive Ultra-vires
Substantive ultra virus means that the delegated legislation goes beyond the scope of the
authority conferred on it by the parent statute or by the Constitution. It is a fundamental
principle of law that a public authority cannot act outside the power. i.e. ultra vires.
Substantive ultra vires includes the following cases:
- Exercising power in excess of statutory limits
- Acting in excess of jurisdiction
- Breach of the principles of natural justice

The Supreme Court has struck down delegated legislation on the ground of substantive ultra
vires in the following ten cases:
1. When the parent act of unconstitutional
2. When the parent act delegates an essential legislative functions
3. When delegated legislation is inconsistent with the parent act
4. When delegated legislation is inconsistent with the general act
5. When the delegated legislation is unconstitutional
6. When the delegated legislation is unreasonable and arbitrary
7. When delegated legislation is made by authority exercising its power mala fide
8. When delegated legislation amounts to sub-delegation
9. When judicial review is excluded
10. When delegated legislation is given a retrospective effect

1. When the parent act is unconstitutional – According to Article 13(2) of the

Constitution, the state shall not make any law which takes away the rights conferred
 Delegated legislature
by Part III (i.e. the Fundamental Rights) and any law made in contravention of this
clause shall be considered as void.

When the parent act is in itself unconstitutional, any delegated legislation made under
that act shall be equally unconstitutional and shall be struck down by the court.

In Chintaman Rao vs State of MP, AIR 1951, the parent Act authorised the Deputy
Commissioner to prohibit the manufacture of bidis on some areas during certain
periods. When the order is passed by the deputy commissioner, it was held that the
parent act was unconstitutional as it violated Art 19(1)(g) of the Constitution which
confers a fundamental right to carry on any occupation, trade or business. Thus the
court, struck down the order passed by the deputy commissioner.

2. When the parent act delegates essential legislative functions – No legislature in

India can create a Parallel legislature. If any essential legislative function is delegated,
the same will be struck down.

3. When delegated legislation is inconsistent with the parent act – When a rule-
making power is conferred by the parent Act, the concerned authority cannot travel
beyond the scope of the act. No rule or regulation can be framed in a manner that is
inconsistent with or repugnant to the provisions of the parent act.
In Chandra Bali vs Rex. AIR 1952 All 795 case, where an authority was
empowered to make rules for ensuring the safety of passengers travelling by ferry and
a rule was made prohibiting the operation of private ferries, it was held that the rules
was out of scope of the delegated power and ultra vires the parent act and hence void.

4. When delegated legislation is inconsistent with the general act – it will be struck
down.
In Indian Council of Legal Aid & Advice vs Bar Council of India, AIR 1995 SC
691 case, the court held the rule framed by the Bar Council of India barring enrolment
of person who is forty-five years of age was held to be invalid.

5. When the delegated legislation is unconstitutional – is found to violate Article 14,

19(1)(g) and 21, it will be struck down as invalid.
In Air India vs Nargesh Meerza, AIR 1981 SC 1829 case, Air India, required
female flight attendants to retire under three circumstances: (1) upon reaching 35
years of age, (2) upon getting married, or (3) upon first pregnancy. The Court struck
the rules down, holding that these requirements constituted official arbitrariness and
hostile discrimination and violates Article 14.

6. When the delegated legislation is unreasonable and arbitrary – When the

delegated legislation is found unreasonable and arbitrary, it is declared invalid. The
delegated legislation may be challenged on the ground of unreasonableness and
arbitrariness.
In Indian Council of Legal Aid & Advice vs Bar Council of India, AIR 1995 SC
691 case, the court held the rule framed by the Bar Council of India barring enrolment
of person who are forty-five years of age violates of art 14, 19(1) (g) and 21 as
unreasonable and arbitrary
 Delegated legislature

7. When delegated legislation is made by authority exercising its power mala fide –
Delegated legislation will be stuck down if the rule – making authority has acted mala
filed or in bad faith (Narendra Kumar vs Union of India AIR 1960 SC 430)

8. When delegated legislation amounts to sub-delegation – The maxim “potestas non

potest delegari” means that a delegate cannot further delegates his power ie. The
power that has been delegated originally may not be redelegated. If the delegate
chooses to sub-delegate the power conferred on him by the parent act to another
person, such action will be struck down unless the parent act authorises him to do so
either expressly of by necessary implication.
In Gullapalli Nageswara Rao vs APSRTC, AIR 1959 SC 308 case, an act had
authorised the minister to hear the parties and pass the final order in certain situation.
The minster delegated the function of hearing to his secretary, who heard the parties
and prepared note to the Minister, who the passed the final order. The Minister’s order
was struck down by the court which observed, “If one person hears and another
decides, personal hearing becomes an empty formality”

9. When judicial review is excluded – Sometimes a clause is inserted in the Enabling

or Parent act for expelling the jurisdiction of the Courts to review the delegated
legislation. This is called an exclusion clause. S 170 of the representation of people
act, 1951 lays down that such exclusion cannot affect the jurisdiction of the SC under
Art 32 and 136 OR the HC under Art 226 and 227 of the Constitution.
In Minister of Health vs King 1931 AC 494 case, the court has held that in spite of
the exclusion clause, the delegated legislation can be reviewed by the court can be
declared invalid if it is found ultra vires the enabling or parent act.

10. When Delegated Legislation is given a retrospective effect – The delegated

authority cannot pass an act retrospectively unless they are authorized to do so. In
Howell vs Falmouth Boat Constructions Co. Ltd. (1951) AC 837 case, a license was
issued by an administrative authority and it provided that it would operate
retrospectively and cover things done before the license was issed. The House of
Lords held this to be invalid.

Procedural ultra vires

When a subordinate legislation fails to comply with procedural requirements prescribed by
the parent act or by general law, it is known as procedural ultra vires.
The following two proedural requirements may now be discussed
1. Publication - It is a fundamental principle of law that “ignorance of law is no excuse
(ignorantia juris non excusat). But there is also another equally established principle
of law that the public must have access to the law and they should be given an
opportunity to know the law. The very justification for the basic maxim is that the
whole of our law, written or unwritten, is accessible to the publi-in the sense, of
course, at any rate, its legal advisers have access to it, any moment,as of right.

The Ganga Clause or the Omnibus Curative Clause

Statues often provide that no act done or proceeding taken under the statue shall be
called in question merely on the ground of some defect or irregularity of such act or
 Delegated legislature
proceeding, not affecting the merirts of the case. After all, procedure is the hand-maid
of justice and no undue importance should be attached to a procedural matter which
has not resulted in any injsutice. Such a cluase is sometimes referred to as Omnibus
Curative Clause or the Ganga Clause.

In B. K. Srinivasan vs State of Karnataka, there was a defect in the publication of the

regulations under the parent Act which contained a Ganga clause. The SC upheld the
legislative device of the Ganga Cluase, observing that the underlying object of such a
device is to put beyond challenge, procedural defects which have not resulted in
substantial prejudice or misccarriage of justice

2. Consultation – is one means by which public participation can be achieved in

administrative action whether in relation to the making of policy, or in the making of
actual decision. It is not the only method of involving the public in adminstrative
policy and decision making:the public inquiry is an important example of the wider
involvement of the public in many area of decision making. Consultation is usually
required either where a person or a group may be affected by some adminstrative
action oe where they have some expert contribution to make to proposed
administrative action. The statutory machinery for consultation tends to be less formal
than that relating to the public inquiry and it is often in the case that the admisntative
agency has discretion as to who is consulted.
In New India Industrial Corporation vs Union of India, Wad J Sates: Consultation of
interest infuses law-making process with democratic forms, particularly in what is
called Bureaucratic Legislation. Apart from this, it is a form administrative necessity.
Effective and meaningful administrative is impossible without imaginative
administrative process. If the citizens are to receive the advantage of any beneficent
measure of the administrative on, the administrative process should be such that the
benefit reaches the citizen in full measure and with expedition.

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 the broad guidelines and detailed
rules are enacted by the delegated authority. (An enabling clause is a clause or provision in a
statute or constitution that gives government officials the authority to put the law into effect
and to enforce it.)