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MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

INTERPRETATION OF STATUTES

SEVENTH SEMESTER

‘PERMISSIBLE LIMITS FOR DELEGATED LEGISLATION’

Submitted to- Prof. Saiba Kamble

Submitted by- Ayaskanta Parida


Enr. No.-2017012
Contents
INTRODUCTION....................................................................................................................................... 4
Importance of Delegated Legislations ................................................................................................... 4
Delegation of Powers under the Indian Constitution........................................................................... 5
Criticism of Delegated Legislation......................................................................................................... 5
DELEGATION OF POWERS................................................................................................................... 6
CONCLUSION ......................................................................................................................................... 12
BIBLIOGRAPHY ..................................................................................................................................... 13

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Apart from the pure administrative function, the executive also performs legislative and the
judicial function in some situations. In England theoretically it is only the Parliament, which can
make laws. Even in the United States of America, where the doctrine of the delegated legislation
has not been accepted in principal, in practice the legislature has entrusted legislative powers to
the executive. Administrative legislation met with a rapid growth after World War II and in India
during 1973 to 1977. There are some limitations on the legislation in relation to delegation of its
powers to administrative authorities. Doctrine of Permissible Limits talks about those limitations
of a legislation to which the power can be delegated.

This doctrine puts a limitation on the legislature so that legislature could not delegate all of its
powers to the administrative authorities, meaning thereby Legislation by the executive branch or
a statutory authority or local or other body under the authority of the competent legislature, which
is hence called as a Delegated Legislation. It permits the bodies beneath Parliament to pass their
own legislation. It basically is a legislation made by a person or body other than Parliament.
Parliament, through an Act of its own, can essentially permit another person or body to formulate
a legislation. An Act of Parliament creates the framework of a particular law and tends only to
contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be
delegated, it enables other people or bodies to provide more detail to an Act of Parliament.
Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make
law and rules through delegated legislation.

This project shall look at how the legislature and the judiciary have interpreted delegated
legislations and the limits prescribed on them through case laws.

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INTRODUCTION
The legislation created by delegated legislation must be made in accordance with the purposes laid
down in the Act. The function of delegated legislation is that it allows the Government to amend
a law without having to wait for a new Act of Parliament to be passed. Further, delegated
legislation can also be used to make technical changes to the law, such as altering sanctions under
a given statute. Also, by way of an example, a Local Authority having power given to them under
certain statutes can make delegated legislation which suits their area. Delegated Legislation
provides a very important role in the making of law as there is more delegated legislation enacted
each year than there are Acts of Parliament. In addition, a delegated legislation has the same legal
standing as the Act of Parliament from which it was created.

Importance of Delegated Legislations


There are several reasons why delegated legislation is important.

• Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation


can be amended and/or made without having to pass an Act through Parliament, which can
be time consuming. Changes can therefore be made to the law without the need to have a
new Act of Parliament and it further avoids Parliament having to spend a lot of their time
on technical matters, such as the clarification of a specific part of the legislation.
• Secondly, a delegated legislation allows law to be made by those who have the relevant
expert knowledge. By way of illustration, a local authority can make law in accordance
with what their locality needs as opposed to having one law across the board which may
not suit their particular area. A particular Local Authority can make a law to suit local
needs and that Local Authority will have the knowledge of what is best for the locality
rather than Parliament.
• Thirdly, delegated legislation can deal with an emergency situation as it arises without
having to wait for an Act to be passed through Parliament to resolve the particular situation.
• Finally, delegated legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of legislation, which makes it flexible and very
useful to law-making.
Delegated legislation is therefore able to meet the changing needs of society and also
situations which Parliament had not anticipated when they enacted the Act of Parliament.

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Delegation of Powers under the Indian Constitution
The Legislature is quite competent to delegate to other authorities, to frame the rules to add power
to the law made by it. In D. S. Grewal v. The State of Punjab1, K.N. Wanchoo, the then Justice
of the Hon'ble Supreme Court dealt in detail the powers of delegated legislation under the Article
312 of Indian Constitution. He observed: “There is nothing in the words of Article 312 which takes
away the usual power of delegation, which ordinarily resides in the legislature. The words
‘Parliament may by law provide’ in Article 312 should not be read to mean that there is no scope
for delegation in law made under Article 312….”.

In England, the Parliament being Supreme can delegate any amount of powers because there is no
restriction. On the other hand, in the United States of America, like India, the Congress does not
possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Ryan2, the
Supreme Court of the United States had held that the Congress can delegate legislative powers to
the Executive subject to the condition that it lays down the policies and establishes standards while
leaving to the administrative authorities the making of subordinate rules within the prescribed
limits.

Criticism of Delegated Legislation


Delegated legislation is not without its criticisms. The main defects of delegated legislation are as
follows: -

• One of the principal criticisms has been that delegated legislation can actually contravene
the doctrine of separation of Powers. One Branch has basically handed over its work that
it was brought in power to do so to another branch through a legislative policy. This was
alleged when the RTI(Amendment) Act came into force in 2019.
• It has been suggested that by having delegated legislation to make and amend laws, it lacks
democracy as too much delegated legislation is made by unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.
Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways

1
AIR 1960 SC 512
2
293 U.S. 388

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which Parliament had not anticipated when it conferred the power through the Act of
Parliament.
• There is the lack of publicity surrounding Delegated legislation at the time of its inception.
When a law is made by statutory instrument the public are not normally notified of it,
whereas with Acts of Parliament, on the other hand, they are widely publicized. One reason
for the lack of publicity surrounding delegated legislation is because of the volume of
delegated legislation made and this result in the public not being informed of the changes
to law. There has also been concern expressed that too much law is made through delegated
legislation.

DELEGATION OF POWERS
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.

The concept of delegated legislation attracted a great deal of controversy and debate in the early
years of the Constitution, and at least the theoretical aspects of the issue seem settled with the
Supreme Court’s pronouncements in In Re: Delhi Laws Act, 19123 and Gwalior Rayon Silk Mfg.
Co. Ltd v. Assistant Commissioner of Sales4. Though the Court has upheld and struck down
delegated legislation in a number of cases in the intervening years, these cases have stood the test
of time as they contain the most comprehensive deliberations on the concerned issue.

The Delhi Laws case5 was the result of a Presidential Reference under Article 143, wherein the
Court was required to adjudicate the validity of the Delhi Laws Act, 1912 which conferred powers
on the government to extend the application of the law as it saw fit. The case provoked contentious
debates amongst the judges, with each member of the 7 Judge Bench delivering an opinion in the
matter.

Despite a considerable amount of overlap among the 7 opinions, the consensus – contained in
Kania CJ’s opinion – was that “the power to delegate legislative functions generally is not
warranted under the Constitution of India at any stage.” Though wide latitude has been given to

3
1951 AIR SC 332
4
1974 AIR SC 1660
5
Supra note 3

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Parliament in terms of what it can delegate, the consensus states authoritatively that this power is
limited to “conditional” or “subsidiary” legislation. By conditional legislation the Court meant that
the legislature would frame the law, and it would be the prerogative of the executive to implement
it when conditions demanding such implementation were achieved. As by the Court stated, “the
legislature must declare the policy of the law and fix the legal principles which are to control in
given cases and must provide a standard to guide the official or the board empowered to execute
the law.”

This reasoning was advanced in Gwalior Rayon Mills Mfg. Co.6, where it was reiterated that the
essential legislative function was the determination of the legislative policy and its formulation as
a rule of conduct. Further, the Court warned against the legislature overstepping the limits of
delegation: “It may not lay down any policy at all; it may declare its policy in vague and general
terms; it may not set down any standard for the guidance of the Executive; it may confer an
arbitrary power on the Executive to change or modify the policy laid down by it without reserving
for itself any control over subordinate legislation.” It was stated that the legislature could not be
allowed to abdicate its legislative power as that would fall beyond the permissible limits of
delegation.

The Doctrine of permissible limit basically talks about the powers of a legislature which can be
delegated to the Administrative authorities as a legislation cannot delegate all its powers. The
legislature has some limited powers which can be delegated. They are:

➢ Commencement: Several statues 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 3 of the Bombay Rents,
hotel and Lodging house rates control act, 1947 provides that the act shall come into
operation on such date as the state Government may by notification in the official gazette
appoint in this behalf. Here the act comes into force when the notification is published in
the official gazette. Such a provision is valid for, as Sir Cecil Carr remarks, "the legislature
provides the gun and prescribes the target, but leaves to the executive the take of pressing
the trigger".

6
Supra Note 4

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➢ Addition of the required specifications: 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. What is delegated here is an ancillary function in aid of the exercise of
the legislative function e.g. section 3 of All India Service Act, 1951 authorizes the central
government to make rules to regulate conditions of service in the Services.
➢ 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. By section
146 of the Indian Railways act, 1980, the government was authorized to apply the provision
to tramways.
➢ Exclusion: There are some statutes which empower the government to exempt from their
operation certain persons, terrorist, commodities, etc. Section 30 of the Payment of Bonus
Act, 1965 empowers the government to exempt any establishment or a class of
establishment from the operation of the act.
➢ 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
provision of the said act.
➢ Application of existing laws: Some statutes confer the power on the executive to adopt
and apply statutes existing in other states without modifications (with incidental changes)
to a new area. There is no unconditional delegation in such cases, as the legislative policy
has been laid down in the statute by the competent legislature.
➢ Modifications: Sometimes, provisions are made in the statute 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 act, but sometimes, this flexibility is
necessary to deal with the local conditions. Thus, under the power conferred by the Delhi
laws act, 1912, the central government extended the application of the Bombay
Agricultural Debtors Relief Act, 1947 to Delhi. The Bombay Act was limited in application

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to the agriculturists whose annual income was less than Rs. 500 but that limitation was
removed by the government.
➢ Punishments: 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 provision of the act subject to the
maximum punishment laid down in the act. By section 59(7) of the Damodar Valley Act,
1948, the power to prescribe punishment is delegated to a statutory authority without any
maximum limit fixed by the parent act. According to the Indian Law Institute, this practice
is not objectionable, provided two safeguards are adopted:
1) The legislation must determine the maximum punishment which the rule making
authority may prescribe for breach of regulations; and
2) If such power is delegated to any authority other than the state or central government,
the exercise of the power must be subject to the previous sanction or subsequent approval
of the state or central government.
➢ Framing of Rules:
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 provide further that the legislature has power
to amend, modify or repeal them. Removal of difficulties (Henry VIII clause): Power is
sometime 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 he 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 condition are different. Generally, two types of "removal of
difficulties" clauses are found in statutes. 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
128 of the States Reorganization Act, 1956 reads as under: "If any difficulty arises in giving effect
to the provisions of this act, the president may by order do anything not inconsistent with such
provision which appears to him to be necessary or expedient for the purpose of removing the
difficulty". Such a provision is not objectionable. According to the Committee on Ministers

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Power7, the sole purpose of Parliament in enacting such a provision is 'to enable minor adjustments
of its own handiworks to be made for the purpose of fitting its principle into the fabric of existing
legislation, general or local'. Sir Cecil Carr rightly says, "the device is partly a draftsman's
insurance policy in case he has overlooked something, and partly due to the immense body of local
acts in England creating special difficulties in particular areas"8. By exercising this power, the
government cannot modify the parent act nor can it make any modifications which are not
consistent with the parent act. Another type of "a removal of difficulties' clause is very wide and
authorizes 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 on the constitution itself. Usually, such a
provision is for a limited period. This provision has been vehemently criticized by Lord Hewart
and other jurists. It is nicknamed as the ‘Henry VIII’ clause to indicate executive autocracy. Henry
VIII was the king of England in the 16th century and during his regime he enforced his will and
got his difficulties removed by using instrumentality of a service parliament for the purpose of
removing the difficulties that came in his way. According to the committees of minister' powers,
the king is regarded popularly as the impersonation of executive autocracy and such a clause
'cannot but be regarded as inconsistent with the principle of parliamentary government'.

In Jalan Trading company v. Mill Majdur Sabha9 the Supreme Court was called upon to decide
the legality of such a clause. Section 37 (1) of the payment of Bonus Act 1965 empowered the
central government to make such orders, not inconsistent with the purpose of the act, is might be
necessary or expedient for the removal of any doubts or difficulties. Section 37 (2) made the order
passed by the central government under sub section (1) final. The court by a majority of 3:2 held
section 37 ultra vires on the ground of excessive delegation in as much as the government was
made the sole judge of whether any difficulty or doubt had arisen, whether it was necessary to
remove such doubt or difficulties and whether the order made was consistent with the provisions
of the act. Again, the order passed by the central government was 'final'. Thus, in substance,
legislative power was delegated to executive authority, which was not permissible.

7
Committee on Ministers' Powers: Report Presented by the Lord High Chancellor to Parliament by Command of
His Majesty. Cmd. 4060 (1932).
8
Cecil T. Carr, Delegated Legislations (1921)
9
AIR 1967 SC 691

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The minority, however, took a liberal view and held that the functions to be exercised by the central
government was not legislative functions at all but were intended to advance the purpose which
the legislature had in mind. In the words of Hidayatullah, J. (as he then was): "Parliament has not
attempted to set up legislation. I have stated all that it wished in the subject of bonus in the act.
Apprehending, however, that in the application of the new act doubts and difficulty might arrive
and not leaving their solutions to the court with the attendant delays and expense, parliament have
chosen to give power to the central government to remove doubt and difference by a suitable
order." It is submitted that the minority view is correct and after Jalan Trading Company10, the
Supreme Court adopted the liberal approach. In Gammon India Ltd. v. Union of India11, a similar
provision was held constitutional by the court. Distinguishing Jalan Trading Company, the Court
observed: "In the present case, neither finality nor alteration is contemplated in any order under
Section 34 of the act. Section 34 is for giving effect to the provisions of the act. This provision is
an application of the internal functioning of the administrative machinery." It, therefore, becomes
clear that after Jalan Trading Company12, the court changed its view and virtually overruled the
majority judgment. In Patna University v. Amita Tiwari13, the relevant statute enabled the
chancellor to issue the directions to universities "in the administrative and academic interest."

In exercise of that power, the chancellor directed the university to regularize services of an
ineligible teacher "on compassionate grounds." When the action was challenged, it was sought to
be supported on the basis of "removal difficulties" clause. Holding that the "removal of difficulties"
clause had only limited application, the Supreme Court quashed the order. It was submitted that
by using a 'removal of difficulties' clause, the government "may slightly tinker with the act to round
off angularities and smoothen the joint or remove minor obscurities to make it workable, but it
cannot change or disfigure the basic structure of the act. In no case can it under the guise of
removing a difficulty, change the scheme and essential provision of the act."

The Committee on Ministers' Powers14 rightly opined that it would be dangerous in practice to
permit the executive to change an act of parliament and made the following recommendations:
"the use of the so called Henry VIII clause conferring power on a minister to modify the power of

10
Supra Note 7
11
(1974) 1 SCC 598
12
Supra Note 7
13
(1997) 7 SCC 198
14
Supra Note 7

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on a minister to modify the provision of acts of parliament should be abounded in all but most
exceptional cases and should not be permitted by parliament except upon special grounds stated
in a ministerial memorandum to the bill. Henry VIII clause should never be used except for the
sole purpose of bringing the act into operation but subject to the limitation of one year."

CONCLUSION
The concept of “Delegated Legislation” has gained prominence in the recent times and several
factors have been responsible for the spurt seen in delegated legislation in Modern India. A modern
society is faced many a time with situations when sudden need is felt for legislative action. There
may be threats of aggression, breakdown of law and order, strikes etc. Such situations cannot be
met adequately unless the executive has standby powers. The Legislature cannot be meet at short
notice and turn out legislation on the spur of the moment. It is therefore a desirable expedient to
pre-arm the Government with necessary powers so as to enable it to take action at a moment’s
notice by promulgating the needed rules and regulations according to the needs of the situation.

The Supreme Court in the case of Agricultural Marketing Committee v. Shalimar Chemical
Works Ltd.15, enunciated the following reasons for the growth of delegated legislation:

1. The area for which powers are given to make delegated legislation may be technically
complex, so much so that it may not be possible and may even be difficult to set out all the
permutations in the Statute;

2. The Executive may require to experiment and to find out how the original legislation was
operating and therefore to fill up all other details;

3. It gives an advantage to the Executive, in the sense that a Government with an onerous
Legislative time schedule may feel tempted, to pass skeleton legislation with the details
being provided by the making of rules and regulations.

It is impertinent that this co-ordinational scheme between executive and legislature stay structured
and does not get misused as it might damage their shared and ultimate goal: making Indians lead
a peaceful and prosperous life.

15
AIR 1997 SC 2502

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BIBLIOGRAPHY
CASES

• D. S. Grewal v. The State of Punjab, AIR 1960 SC 512


• Panama Refining Co. v. Ryan, 293 U.S. 388
• Agricultural Marketing Committee v. Shalimar Chemical Works Ltd, AIR 1997 SC 2502
• Jalan Trading Company v. Mill Majdur Sabha, AIR 1967 SC 691.
• Gammon India Ltd. v. Union of India, (1974) 1 SCC 598.
• Patna University v. Amita Tiwari, (1997) 7 SCC 198
• Gwalior Rayon Silk Mfg. Co. Ltd v. Assistant Commissioner of Sales, 1974 AIR SC 1660
• In Re: Delhi Laws Act, 1912 AIR 1951 SC 332

BOOKS

• C.K Takwani, Lectures on Administrative Law. (2007).


• K.C. Joshi, An Introduction to Administrative Law, (2006)
• Cecil T Carr, Delegated Legislations (1921)

COMMITTEE REPORTS

• Committee on Ministers' Powers: Report Presented by the Lord High Chancellor to


Parliament by Command of His Majesty. Cmd. 4060 (1932).

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