"DELEGATED LEGISLATION AND ITS CONSTITUTIONAL VALIDITY"

What is delegated legislation?

Delegated legislation means permitting bodies beneath parliament to pass their own legislation. The
three main forms of delegated legislation are statutory instruments, by-laws and orders in Council as
well as rules and regulation that are made under various legislations/ Acts.
Statutory instruments are created by government departments for areas under their responsibility.
The Parent Act gives the departments permission as well as guidance about how the new piece of
legislation is to be written and processed. Under Statutory Instruments the Minister for Transport will
be able to deal with necessary road traffic regulations and the Health and Safety Executive may use a
Statutory Instrument to change safety law; statutory instruments give departments immense freedom
to change the law and as a result 3,000 statutory instruments are brought into force each year.
By-laws are created by local authorities to cover matters in their own area, which must be approved
by central government. For example Nottingham City Council along with many other local authorities
in the country is enforcing a car ban in the City Centre area. Public bodies such as the British Airport
Authority and the railways can enforce rules about public behaviour on their premises. Another
example of a bylaw is the smoking ban on the London Underground System.
Orders in council are laws passed in an emergency by the government, when parliament is unable to
sit. Under the Emergency Powers Act 1920 orders in Council are approved by the Privy Council and
signed by the Queen. An example of when Orders in Council could have been used is during the
bombing of the World Trade Centre in September 2001, if the speculations that the Houses of
Parliament was next to be attacked came true, then orders in council would have been the last resort.
Reason for growth of Delegated legislation:
Lord Hewart, his book "The New Despotism "1929. Delegated legislation which provided in England.
Lord Hewart criticised and says it is new despotism that is executive dominion in every area his
criticism he has given reason parliament appoint committee known as Donoughmore Committee. This
committee study reason for growth of delegated legislation, following are six reason of growth of
delegated legislation,
1. Pressure upon Parliamentary Time:

As a result of the expanding horizons of the state activity, the bulk of legislation is so great that it is
not possible for the legislation to devote sufficient time to discuss all the matters in detail. Hence there
is need for a delegation of power.
Arvindar Singh v. State of Punjab This case the municipality would have been directly responsible to
the locality has been a strong factors is support of broad delegation to municipality, this factor was
absent here. Further, in the instance situation, the residents lost their right to object levy of the tax
which they could have exercised if municipality and not the state government. S.C. Cited study of
Prof. Bakshi, he conducted survey in 1973 to 1977, according to that particular survey number of
legislation, 302 legislation passed by legislature throughout country. Whereas that time executive
passed during four years period 25,440 legislation and basic requirement of legislation 26000.
2. Technicality:
Subject matter technical in nature, apart from the broad principles involved, technical matters are
difficult to include in a bill, since they cannot be effectively discussed in parliament. Sometimes, the
subject matter on which legislation is required is so technical in nature that the legislator, being
himself a common man, cannot be expected to appreciate and legislate on the same, and the
assistance of experts may be required. Hence this lead to the growth of delegation of power.
3. Flexibility:
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and
some provision is required to be made for these unforeseen situations demanding exigent action.
Hence there is a need for flexibility which leads to the growth of delegation of power.
4. Experimentation:
The practice of delegated legislation enables the executive to experiment. The method permits rapid
utilization of experience and implementation of necessary changes.
5. Emergency situation:
In the time of emergency, quick action is required to be taken. The legislative process is not equipped
to provide for urgent solution to meet the situation. Hence there is need for delegation of power.
6. Confidentiality:Sometime legislature coming with legislation they do not know its enforceability.
There is situation where parliament fill requirement legislation and this particulars most of the time
confidentiality that is National Security Act, it require security because they want to protect. For

example, food shortage, petrol prices raise that time particular legislation come to enforce to keep
confidentiality.

Different forms of Delegated Legislation:

1. Central Act to Central Government:
Central Act empowered Central Government to come with delegated legislation. Basically this
legislation based on particular Parent Act. For Example, S.3 of Defence Act, S.3 of All India Service
Act.
2. Central Act to State Government:
Central Legislature to empower to state executive to comes with delegated legislation. For Example,
S.8 of Opium Act, S.2 of Muslim Wakf Act.
3. Central Act to Central as well as state Government:
Parent Act empowered to central as well as state executive to come with delegated legislation. For
Example, Administrative Tribunal Act, S.35 empower central Government and S.36 empower to state
government come with delegated legislation.
4. Central Act to Statutory bodies:
Central Legislature empower to statutory bodies come with delegated legislation. For Example,
Advocate Act 1961, S.49 empower to bar council of India to make a rule means Central Act through
the statutory body to make a rule.
5. State Act to State Government:
State Legislature empower to State Executive come with delegated legislation. For Example,
Municipality Act, Panchayat Act.
6. State Act to Statutory bodies:
For Example, GNLU Act, S.46, State Act empower to Statutory Body to make a law.

Constitutionality of Delegated Legislation

Pre-constitutional Position: In 1935 the Government of India Ac, 1935 was passed which contained
an intensive scheme of delegation. The report of the committee on ministers' powers was submitted

and approved which fully established the case for delegation of powers and delegation of legislation
was regarded as inevitable in India.
1) Queen v. Burah, In 1869, the Indian legislature passed an Act purporting to remove the district of
Garo Hills from the jurisdiction of the civil and criminal courts, and the law applied therein, and to vest
the administration of civil and criminal justice within the same district in such officers as the
Lieutenant-Governor of Bengal might appoint for the purpose. By section 2, this Act was to come into
operation on such day as the Lieutenant-Governor was empowered from time to time, by notification
in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the Act
to the Jaitia, Naga and khasia Hills. The Lieutenant-Governor of Bengal, by the khasia and Jaintia
Hills. Under the Act and these notifications, Burah was tried on a charge of murder by High Court of
Calcutta, by a majority, decided in favour of Burah. Thereupon the Government appealed to the Privy
Council. Privy Council reversed the decision of Calcutta High Court and validate the S.9.Privy council
firstly held that Indian legislation not delegate from British Parliament. It is a specific legislation. Privy
Council come with new theory and say it is not delegated legislation, it is a conditional legislation.
This doctrine of conditional legislation enunciated in the Burah case has been subsequently applied
by court in a number of cases, In Emperor v. Benorilal, it was contended that the ordinance was
invalid because the last provision amounted to delegated legislation, by which the Governor-General.
Without legal authority, sought to pass the decision as to whether an emergency existed to the
Provincial Government instead of deciding it for himself. Rejecting the argument, Lord Chancellor. In
other case, State of Bombay v. Narottamdas, the Bombay Legislature enacted the Bombay Civil City
Court Act, 1948, to establish a civil Court for greater Bombay having jurisdiction to decide civil suits
not exceeded its jurisdiction up to twenty five thousand rupees. This provision was challenged as
being an unauthorised delegated to extend its jurisdiction up to twenty five thousand rupees. This
provision was challenged as being an unauthorised delegated of legislative power. The Supreme
Court rejected the argument and upheld the provision as conditional legislature.
2) Panama Refining Co. v. Ryan, July 11, 1933 President order, prohibiting interstate transportation of
petroleum products. S.9 of National Recovery Act, this Parent Act comes with legislation Petroleum
product use for transportation that product prohibited issued order. Panama Refining co. approach
and challenge federal action. Basic question is,
a) Whether prohibition is provided in the legislative policy?
b) Whether standard was provided by the legislature?
c) Whether only finding by president is required for such action?

Majority held that no policy, no standard, thus unlimited authorities, S.9 Congress declared no policy it
give unlimited power to President It is excessive delegated legislation and S.9 (c) invalid because it
give excessive power. in this case narrow approach of U.S. Court because separation of powers is
there. Before this decision there was another case that is "Field v. Clark," In this case Supreme Court
of America provided the congress cannot delegate legislative power to president. Is a principle
universally recognised and widen to integrity and maintenance of system of government order by
constitution means Supreme Court held legislature cannot held law making power delegate to
executive. Supreme Court applied "Delegatus non potus delegar".
In Panama Refining case Justice Cardozo agreed with the principle laid down by the majority, he
thought that the statute in question laid down the standard necessary to validate delegation, the
majority thought otherwise.
The Panama doctrine was applied in Schechter. This case involved very sweeping congressional
delegation. The power delegated was the power to approve detailed codes to govern business
subject to federal authority. The Supreme Court declared, "in view of scope of that broad declaration,
and of the nature of the few restriction that are imposed, the discretion of the President in of the
President in approving or prescribing codes, and thus enacting laws for the government of trade and
industry throughout the country, is virtually unfettered." The court found no 'standard' in the Act. The
code-making authority was held to confer an unconstitutional delegation of legislative power. Since
then the situation has changed in the U.S.A. Panama and Schechter are the only two cases in which
delegations have been held invalid by the Supreme Court. In subsequent cases, while the proposition
has always been reiterated, broad delegations have nonetheless been upheld. While the Supreme
Court has continued to emphasize upon standards, it has upheld very broad standard in practice. So
much so that it came to be believed that the doctrine of excessive delegation was moribund in the
U.S.A. however, a very powerful endorsement of viewpoint for the present. 3) National Broadcasting
Co. v. U.S. Parliament comes with communication Act. this Act empower to executive to frame rule
and govern area of issuing licence and matter related various communication agency, condition,
public interest, convenience, Necessary these three standards prescribe by communication Act. In
this case delegated legislation valid.
4) Yakus v. U.S. "Emergency price control Act" which empowered the executive to fixed maximum
price has been held valid by U.S. congress cannot delegate legislative power without prescribing
power based on this concept Doctrine of excessive delegation his acting as a basic principle.
In India:

5) Emperior v. Benorilal Governor General had Legislative power based by order it provided
established special court in some part. Left. Governor General establishes specially that area, in can
be extended some other area.
6) Jatindra Nath v. Province of Bihar, the question before Federal Court was whether the province of
Bihar Maintenance of public order Act, 1947, which empowered the Provincial Government by
notification, on Resolutions passed by the Legislative Assembly and Legislatively Council, to extend
life of the Act by their Resolution only. Court held that power to modify an Act without specifying any
limit of such power could not be delegated. S.1 (3) - 2 they extend the life of the Act with modification.
If the parent Act prescribes, executive modify and ensure. This decision narrow down the scope of
delegated legislation as well as particular legislation effective so many other legislation invalid
because decision of this particular and there was chaos whether valid or not.
After the Commencement of the Constitution:
Delegation of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws
to perform administration functions.
7) Delhi Laws Act Case,
The question of validity of delegated legislative powers under the Constitution came before the
Supreme Court in the form of a Presidential reference under Article 143 in what is known as in Re:
Delhi laws Act case, in this case president referred advisory opinion to three question. The question
whether the above section, or any of its provision, and in what particulars, or to what extent, was ultra
vires Parliament.
1) Delhi Law Act, 1912, S.7,
2) Ajmer Merwara ( Extension of laws ) Act1950, S.2,
3) Part 'C' State (Laws) Act, 1950. S.2.
Seven judges gave the different opinion in this case
This case main question is the constitution validity of Delegated legislation:
This case basic question, i) Extend, ii) Modify, iii) Restrict and apply, iv) Repeal. Union of India on
behalf of delegated legislation. State of Mysore, state of Madras, state of U.P., Bombay these were

prominent states argue on behalf of Delegated Legislation. In opposite side Ajmer Electricity supply
co., Deepnand, Modern Hotel and some other individuals like Munshilal etc. M.C.Setwal governor
general of India argue on behalf of union of India. And N.C. Chatterge he argued against delegated
legislation.
Supreme Court Decision:
1) Delegation of power to executive to the extend a law passed for one territory to another territory
where both the territory within the jurisdiction the legislation was held to be valid.
2) Delegation of power to executive to adopt and implement law which was prevailing another state
was held to be valid.
3) Delegation of power either of one or two type with additional power of making restriction or
modification when such law are brought into forces was also held to be valid.
4) Delegation of power to the executive to repeal or amendment a law in force was held include as it
amongst to excessive delegation.
Delhi Laws Act case says Delegation of Legislative Powers is valid but essential legislative functions
should not be delegate.

Conclusion
Plenary power of law making are entrusted to elected representatives, but in reality, the political
government, instructed by the bureaucracy, gets bills passed through either by the aid of whip or by
other methods. Thus law making has remained, more or less, exclusive prerogative of a small crosssection of elites. It affects not only the quality of the law made but reinforces centralised system of
power. There must, therefore, be social auditing by public at large. Constitutional legitimation of
unlimited power of delegation to the executive by the legislature may, on critical occasions, be
subversive of responsible government and erosive of democratic order. Parliament control over
delegated legislation should be living continuity as a constitutional necessity.

Why is it necessary to have controls over delegated legislation?

There are many important reasons why it is necessary to have controls over delegated legislation.
Currently delegated legislation is made by non-elected bodies away from democratically elected

politicians (parliament) , as a result many people have the power to pass delegated legislation, which
provides a necessity for control, as without controls bodies would pass outrageous unreasonable
legislation which was attempted in the past; in the Strictland V Hayes Borough Council (1986) where
a bylaw prohibiting the singing or reciting of any obscene language generally, was held to be
unreasonable and as a result the passing of this delegated legislation was rejected.
Below I describe cases where controls over delegated legislation have been essential in order to
avoid authorities abusing there powers, the particular cases are: R v Secretary of State for Education
and Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and
Excise v Cure and Deely Ltd (1962).
Another issue which occurs making controls over delegated legislation vital is sub legislation, which is
where law making is handed down another level to people other than those who were given the
original power to do so, to implement important policies. Creating criticism that our law is made by
civil servants (who may know hardly anything about the law) and just rubber stamped by the
Minister of that apartment, this requires law passed by these civil servants to be checked by the
scrutiny committee of parliament or the courts.
Finally delegated legislation can share the same issues as Acts of Parliament such as obscure
wording that can lead to difficulty in understanding the law, which again makes controls necessary as
parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people
from passing.
The controls that exist over delegated legislation and criticisms
Control over delegated legislation is through parliament (via affirmative/ negative resolution
procedures as well as through the scrutiny committee) controls over delegated legislation also exist
through the courts (via judicial review and the doctrine of ultra vires- explained next).
Parliamentary Control- affirmative resolutions and negative resolutions
Statutory instruments become law in two ways through the negative resolution procedure, where after
the statutory instrument is written it is shown to parliament and if within 40 days there are no
objections it immediately becomes law if there is objections however then the statutory instrument is
debated in the House of Commons, House of Lords or in a Standing Committee.

Or through an affirmative resolution procedure where a statutory instrument may not become law
unless specifically approved by parliament; parliament will put an instruction under the Parent Act,
informing that the issue is required to be debated and voted upon before it becomes law. Under the
affirmative resolution procedure parliament may be required to vote for its approval of the delegated
legislation, which will provide a fair system as each Member of Parliament will represent the public or
a specific body and will provide different views on different laws, it would also ensure that full
parliamentary attention has been drawn to important legislation. MPs also have the advantage of
asking ministers questions about delegated legislation at question time or raise them in debates. A
major disadvantage of this procedure however is that parliament cannot amend the statutory
instrument; it can only be approved, annulled or withdrawn. Another disadvantage of this procedure is
that it can be fairly time consuming of parliamentary time due to carrying out votes and opposition
parties having the opportunities to raise any objections.
Scrutiny Committee
The scrutiny Committee (also known as the Joint Select Committee) is responsible for reviewing
statutory instruments in close detail and drawing the attention of parliament to any delegated
legislation which requires special further consideration before the committee stage of the bill. Possible
problems that the scrutiny committee could go through that may force them to inform parliament
could be (highlighted by Jimmy ORiordan, AS Law for OCR): that a statutory instrument is going
beyond its powers (known as ultra vires), a statutory instrument is imposing a tax which it is not
allowed to do- only an elected body has the right, a statutory instrument s producing legislation which
is unclear or a statutory instrument is producing retrospective legislation (backdating an offence),
which was not provided for by the enabling Act.
A major criticism of the Scrutiny Committee is that the committee may not consider the merits of any
piece of delegated legislation (only whether the delegated legislation has been correctly used) and
has no power to alter any statutory instruments. As the scrutiny committees report has no binding
effect it can sometimes be seen as a waste of parliamentary time as well as the committees time.
The Hansard Society in their 1992 report found that some of the critical findings of the committee
were ignored by ministers, however despite this Elliott and Quinn highlight [the scrutiny committee]
makes an important contribution, and has been able to secure changes to a number of important
pieces of legislation.

Parliamentary sovereignty
Parliamentary sovereignty means that parliament can revoke a piece of delegated legislation at any
time, or pass legislation on the same subject as the delegated legislation. Parliamentary sovereignty
is a major advantage as if for example unclear legislation was being passed or legislation imposing a
tax when not supposed to, the revocation of that piece of legislation would be vital
Control by the courts- judicial review- doctrine of ultra vires
Judicial review is where judges in the Queens Bench Division of the High Court are asked to review
the descisions of inferior courts and tribunal, and also of public bodies and officials. It allows the
courts to supervise the workings of a very wide range of descision making processes, making sure
the process remains fair and provides access to justice, as well as making sure that powers are not
abused.
The most common reason for objecting delegated legislation in the courts is due to ultra vires- where
legislation goes beyond its power that parliament granted under the enabling Act, whilst the validity of
statute can never be challenged by the courts due to parliamentary sovereignty.
Procedural ultra vires occurs when procedures under the enabling act have failed to be followed and
refers mainly to the situation where a public authority has over stepped its powers. An example
of ultra vires occurred in R v Secretary of State for Education and Employment, ex parte National
Union of Teachers (2000) a High Court judge ruled that a statutory instrument setting conditions for
appraisal and access to higher of pay for teachers was beyond the powers given under the Education
Act 1996 as a result the statutory instrument was declared void. This case demonstrated a clear
example of where delegated legislation can lead to abuse of powers and why it is necessary to have
controls over delegated legislation.
The problem with enabling Acts is that it provides Ministers with high discretionary powers as a result
Elliott and Quinn demonstrate a phrase such as the minister may make such regulations as he
sees fit for the purpose of bringing the Act into operation to be quite common; this means it is rare for
anything to lead to ultra vires leaving judicial review effectively frustrated (Elliott and Quinn).
Under the principle of substantive ultra vires, the courts are able to intervene to prevent or remedy an
abuse of power by public authorities. This occurred in the Commissioners of Custom and Excise V
Cure and Deely Ltd (1962), where the power of the commissioners to make delegated legislation
under the Finance Act 1940 was challenged. Under this Act the commissioners determined the
amount of tax due where a tax return was submitted late however the High Court invalidated this and

argued that the commissioners had given themselves powers far beyond what parliament had
empowered, there job was to only collect the amount of tax due. This is another case whether it has
been clearly demonstrated without controls many authorities will abuse the powers ultra vires and
again demonstrates why it is necessary to have control over delegated legislation. In this
demonstration control by the courts has proved to be highly effective.
Consultation
Ministers have the benefit of further consultation before regulations are drawn up. Those who make
delegated legislation often consult experts in those relevant fields as well as those bodies who are
likely to be affected by it. An example of a consultation process could be given under road traffic
regulations, where ministers are likely to seek the advice of police, motoring organisations, vehicle
manufacturers and local authorities before making the rules.
Publication
All delegated legislation is published and therefore provides an opportunity for public scrutiny.
However Elliot et al argue publication has only limited benefits. The large volume of delegated
legislation makes it difficult for the public to understand what the current law is; also the majority of
delegated legislation is made in private in contrast to the public debate of parliament (Jacqueline
Martin). People are also unaware of their rights; on what grounds law can be challenged and how to
go about doing so making it difficult for public scrutiny. On the other hand many people also lack
financial resources to go to court, which means legislation is let unchallenged.
Conclusion -Are the different controls satisfactory?
After having reviewing the controls that exist over delegated legislation I have discovered many flaws
in the system such as the Scrutiny Committee not being able to consider the merits of any piece of
delegated legislation (only whether the delegated legislation has been correctly used) and the
Scrutiny Committee having no power to alter any statutory instruments and parliament only being
able to approve, withdrawal or annul legislation. As a result the different controls are not satisfactory;
however there are reformations that could take place to improve the current delegated legislative
process. Parliament should be able to amend a statutory instrument rather then just withdrawing it,
approving it or simply annulling it. Another reformation that could take place in order to improve the
current system of delegated legislation is for parliament to vitally consider the critical findings of the
Scrutiny Committee, as it is appalling to know that months and years of hard work from the Scrutiny
Committee on delegated legislation is simply ignored by parliament