5. Discuss the judicial control over delegated legislation. How have Indian courts ensured that delegated legislation remains within constitutional limits? Support your answer with landmark cases.
Introduction
The modern welfare state has led to an ever-expanding role of government in the socio-economic sphere. Legislatures, while supreme in law-making, often find themselves unable to deal with the growing complexities of governance due to limitations of time, technical expertise, and need for flexibility. To overcome this, legislatures delegate law-making powers to the executive or other subordinate authorities. This phenomenon is known as delegated legislation.
While delegation ensures efficiency and speed, it also poses dangers: misuse of power, arbitrariness, and erosion of parliamentary supremacy. To safeguard democracy and the rule of law, there must be effective checks on delegated legislation. In India, one of the most important forms of control is judicial control exercised by constitutional courts. Through judicial review, courts ensure that delegated legislation remains within the constitutional framework and does not transgress the limits set by the enabling Act or the Constitution.
This answer will critically analyze the judicial control over delegated legislation in India, highlight the constitutional principles involved, and illustrate with landmark case laws.
Concept of Judicial Control
Judicial control refers to the supervisory role played by the courts to check the constitutionality, legality, and reasonableness of delegated legislation. The judiciary acts as the guardian of the Constitution and ensures that:
- The legislature does not abdicate its essential legislative function.
- Delegated legislation does not violate fundamental rights or constitutional provisions.
- Delegated legislation remains within the limits of the enabling statute.
- The exercise of delegated power is not arbitrary, unreasonable, or ultra vires.
Grounds of Judicial Control
Indian courts have evolved several grounds on which delegated legislation may be struck down. These include:
1. Excessive Delegation
The legislature cannot abdicate its essential legislative function of laying down policy. It can only delegate the power to fill in the details or make rules within the policy framework. If the delegation is excessive, the courts will strike it down.
- Case Law:
- In re Delhi Laws Act, 1951 – This is the seminal case on delegated legislation in India. The Supreme Court held that while delegation is necessary, the legislature cannot delegate its essential legislative function. Essential functions include determining legislative policy and enacting it into a binding rule of conduct. Delegation of ancillary or procedural matters is permissible, but abdication of core law-making power is unconstitutional.
2. Violation of Fundamental Rights
Delegated legislation is subject to Part III of the Constitution. If it violates fundamental rights, it is liable to be struck down.
- Case Law:
- Chintaman Rao v. State of Madhya Pradesh (1950) – A rule framed under the Central Provinces and Berar Regulation of Manufacture of Bidis Act, 1948, completely prohibited manufacture of bidis during agricultural season. The Supreme Court struck it down as it violated Article 19(1)(g) (right to practice any profession). The court held that restrictions must be reasonable and within constitutional limits.
3. Ultra Vires the Parent Act
Delegated legislation must operate within the limits of authority conferred by the parent statute. If it goes beyond the scope of the Act, it is ultra vires and void.
- Case Law:
- Indian Express Newspapers v. Union of India (1985) – The Court held that delegated legislation can be challenged on the ground that it is ultra vires the enabling Act or the Constitution. In this case, customs duty imposed on newsprint was challenged. The Court emphasized that though rules are subject to lesser judicial scrutiny compared to statutes, they can still be tested on the grounds of violation of fundamental rights or arbitrariness.
4. Unreasonableness
Courts may strike down delegated legislation if it is manifestly arbitrary, capricious, or unreasonable.
- Case Law:
- Air India v. Nergesh Meerza (1981) – A regulation framed under the Air Corporation Act which terminated the services of an air hostess on first pregnancy was held unconstitutional as it was arbitrary, unreasonable, and violative of Article 14.
5. Mala Fide Exercise of Power
If delegated power is exercised for an extraneous purpose or with mala fide intention, courts can strike it down.
- Case Law:
- State of Tamil Nadu v. P. Krishnamurthy (2006) – The Supreme Court held that subordinate legislation can be invalidated if it is manifestly arbitrary, unreasonable, contrary to statutory provisions, or enacted for an ulterior purpose.
6. Violation of Procedural Requirements
If the parent statute prescribes specific procedures (e.g., consultation, publication, or laying before legislature) for making delegated legislation, non-compliance can render it invalid.
- Case Law:
- Jan Mohammad v. State of Gujarat (1966) – Rules were struck down because mandatory procedural requirements under the enabling Act were not complied with. The Court emphasized that procedural safeguards ensure transparency and accountability in delegated legislation.
7. Retrospective Operation
Delegated legislation cannot generally have retrospective effect unless the parent statute expressly authorizes it.
- Case Law:
- Bimal Chandra Banerjee v. State of Madhya Pradesh (1970) – The Court struck down a notification that sought to impose a tax retrospectively, holding that such power must be clearly conferred by the enabling Act.
Role of the Judiciary in Shaping Doctrine
Indian judiciary has played a proactive role in laying down doctrines governing delegated legislation:
- Doctrine of Essential Legislative Function
- Originated in In re Delhi Laws Act case.
- Courts drew a distinction between essential functions (cannot be delegated) and non-essential/ancillary functions (can be delegated).
- This doctrine ensures that the legislature retains control over policy-making.
- Doctrine of Ultra Vires
- Delegated legislation is tested both on substantive ultra vires (beyond powers conferred by statute) and procedural ultra vires (non-compliance with procedural requirements).
- This prevents overstepping by the executive.
- Doctrine of Reasonableness and Non-Arbitrariness
- Derived from Articles 14 and 19 of the Constitution.
- Courts ensure delegated legislation is not arbitrary, excessive, or disproportionate.
Judicial Control and the Constitution
Article 13
Delegated legislation is “law” within the meaning of Article 13(3)(a). Hence, it can be tested for inconsistency with fundamental rights.
Article 32 and 226
The Supreme Court and High Courts have wide powers of judicial review under Articles 32 and 226. Citizens can directly challenge delegated legislation violating constitutional rights.
Basic Structure Doctrine
If delegated legislation undermines the basic structure of the Constitution (e.g., rule of law, separation of powers), it can be invalidated.
Landmark Cases Summarized
- In re Delhi Laws Act (1951) – Laid down limits of delegation; essential functions cannot be delegated.
- Chintaman Rao v. State of M.P. (1950) – Delegated legislation struck down for violating fundamental rights.
- Indian Express Newspapers v. Union of India (1985) – Recognized judicial review of delegated legislation on grounds of arbitrariness, unreasonableness, and violation of rights.
- Bimal Chandra Banerjee v. State of M.P. (1970) – No retrospective delegated legislation unless authorized.
- Air India v. Nergesh Meerza (1981) – Arbitrary and discriminatory rules invalidated under Article 14.
- State of T.N. v. P. Krishnamurthy (2006) – Laid down comprehensive grounds for judicial review of subordinate legislation.
Critical Evaluation
Judicial control over delegated legislation in India has been fairly robust. The courts have struck a balance between the necessity of delegation in a modern welfare state and the need to prevent abuse of power. Some critical points include:
- Positive Aspects
- Ensures constitutional supremacy.
- Prevents abdication of legislative function.
- Protects fundamental rights of citizens.
- Provides a check against arbitrary executive action.
- Limitations
- Judicial review is reactive, not proactive; courts intervene only when a case is brought.
- Excessive reliance on judiciary may undermine parliamentary responsibility.
- Courts sometimes adopt a deferential attitude, especially in economic matters, limiting their scrutiny.
- Volume of delegated legislation makes judicial oversight selective and limited.
Conclusion
Delegated legislation is an inevitable feature of modern governance, but it poses risks to democratic accountability. In India, judicial control acts as a vital safeguard against excessive delegation, violation of fundamental rights, arbitrariness, and ultra vires action. Through landmark cases like In re Delhi Laws Act, Chintaman Rao, Indian Express, and Krishnamurthy, the judiciary has developed clear principles ensuring that delegated legislation operates within constitutional limits.
Ultimately, judicial control complements legislative and executive checks, preserving the delicate balance between efficiency in governance and protection of constitutional values. While the judiciary has played an indispensable role, strengthening legislative oversight and public accountability mechanisms would further ensure that delegated legislation serves the people without undermining democracy.
6. Examine the legislative control over delegated legislation in India. How effective is parliamentary scrutiny in checking excessive delegation of powers?
Introduction
Delegated legislation has become an indispensable feature of modern governance. With the growing responsibilities of the state in regulating diverse socio-economic and technological sectors, the legislature often cannot deal with every minute detail of law-making. Hence, legislatures delegate certain powers to the executive and subordinate authorities to frame rules, regulations, notifications, and by-laws. While this mechanism ensures flexibility, expertise, and speed, it also poses serious risks of misuse of power, arbitrariness, and erosion of democratic accountability.
In a parliamentary democracy like India, legislative control over delegated legislation is crucial. The legislature, being directly accountable to the people, is expected to supervise and check whether the delegated powers are exercised within the framework of the parent statute and constitutional provisions. The central question is: How effective is parliamentary scrutiny in preventing excessive delegation of powers in India?
This answer will discuss the meaning and necessity of legislative control, methods of such control in India, its effectiveness, landmark case law, and a critical evaluation.
Meaning of Legislative Control
Legislative control refers to the oversight exercised by the legislature over the law-making powers delegated to the executive or subordinate authorities. It ensures that:
- Delegated powers are not excessive.
- Rules and regulations conform to the legislative intent and policy.
- Accountability of the executive to the legislature is preserved.
- Citizens’ rights and constitutional values are not undermined.
In essence, legislative control provides a democratic check on the executive and maintains the supremacy of the legislature in law-making.
Necessity of Legislative Control
Legislative control over delegated legislation is necessary due to:
- Democratic Accountability – Law-making is the prerogative of elected representatives. Delegation without supervision may weaken democracy.
- Prevention of Executive Arbitrariness – Delegation gives wide discretion to the executive; unchecked power may lead to misuse.
- Maintenance of Separation of Powers – Control ensures that the executive does not usurp the legislative domain.
- Flexibility with Safeguards – Delegation allows technical details to be handled by experts, but control ensures these remain within policy limits.
Methods of Legislative Control in India
In India, legislative control over delegated legislation operates at three stages:
1. Control at the Time of Delegation
The legislature determines:
- The policy and principles of the law.
- The extent of power to be delegated.
- The authority to which power is delegated.
This ensures that delegation is within limits and not excessive.
- Case Law: In re Delhi Laws Act, 1951 – The Supreme Court held that essential legislative function (policy determination) cannot be delegated. Only ancillary powers may be delegated. Thus, the legislature must retain control at the initial stage itself.
2. Control Through Procedural Safeguards in Delegation
Parliament often prescribes procedures to ensure transparency and accountability. These include:
- Prior Consultation – Parent statutes sometimes require consultation with stakeholders before rules are made.
- Publication – Rules must be published in the Gazette for public knowledge.
- Laying Procedure – Rules must be laid before the legislature for approval or annulment.
- Parliamentary Committees – Committees examine delegated legislation in detail.
3. Control After Delegation (Parliamentary Scrutiny)
Once rules are made, Parliament retains control through mechanisms like:
(a) Laying of Rules before Parliament
There are three types:
- Simple Laying – Rules are simply laid before Parliament. They come into effect automatically (e.g., many taxation rules).
- Laying subject to Negative Resolution – Rules come into effect but may be annulled by Parliament within a specified period.
- Laying subject to Affirmative Resolution – Rules require express approval of Parliament before taking effect.
- Case Law: Jan Mohammad v. State of Gujarat (1966) – The Court emphasized that if the enabling Act prescribes laying procedure, non-compliance renders the delegated legislation invalid.
(b) Parliamentary Committees
- The most important is the Committee on Subordinate Legislation (established in 1953 in Lok Sabha, and 1964 in Rajya Sabha).
- Composed of members of Parliament, it scrutinizes whether:
- Rules are in accordance with the parent Act.
- They trespass on essential legislative function.
- They impose unreasonable restrictions.
- They contain retrospective effect without authority.
- They involve excessive delegation.
- The committee submits reports to Parliament, which may take corrective action.
(c) Parliamentary Questions and Debates
Members may question ministers about the scope, necessity, and content of delegated legislation. This provides political accountability.
(d) Power to Modify or Repeal
Parliament retains the power to amend the parent Act, restrict delegation, or repeal the delegated legislation.
Effectiveness of Legislative Control in India
While the framework exists, the actual effectiveness of legislative control has been a matter of debate.
1. Strengths of Legislative Control
- Institutional Mechanisms – Laying procedures and committees provide structured oversight.
- Democratic Check – Parliament can annul or modify rules, preserving legislative supremacy.
- Transparency – Publication and debates make rules accessible and open to scrutiny.
- Judicial Recognition – Courts have upheld the importance of legislative safeguards, e.g., Jan Mohammad case.
2. Weaknesses of Legislative Control
- Volume of Delegated Legislation – The sheer quantity of rules makes detailed parliamentary scrutiny difficult.
- Lack of Debate – In practice, most rules are laid without meaningful discussion or opposition.
- Limited Role of Committees – Committees can only recommend; they lack binding power.
- Executive Dominance – With majority governments, the executive usually controls Parliament, limiting independent scrutiny.
- Time Constraints – Parliament’s busy schedule leaves little time for examining rules.
- Technical Complexity – Members often lack expertise to examine highly technical regulations.
Thus, while mechanisms exist on paper, their practical impact has been limited.
Landmark Judicial Observations
- In re Delhi Laws Act, 1951 – Essential functions cannot be delegated; legislative control must be preserved.
- Raj Narain Singh v. Chairman, Patna Administration Committee (1955) – Excessive delegation struck down; highlighted importance of legislative supervision.
- Jan Mohammad v. State of Gujarat (1966) – Non-compliance with laying requirement invalidates rules.
- Indian Express Newspapers v. Union of India (1985) – Emphasized parliamentary and judicial control as safeguards against arbitrary delegated legislation.
- State of T.N. v. P. Krishnamurthy (2006) – Subordinate legislation is subject to both legislative and judicial scrutiny.
Comparative Perspective
- United Kingdom – The Delegated Powers Scrutiny Committee in the House of Lords actively reviews delegated powers and is considered effective.
- United States – Strong congressional committees exercise rigorous scrutiny over rule-making.
- India – Though committees exist, parliamentary scrutiny is weaker due to executive dominance and limited debates.
Critical Evaluation
Legislative control over delegated legislation in India reflects both strengths and weaknesses:
- Strengths
- Constitutional framework requires policy determination by legislature.
- Laying procedures create transparency.
- Committees offer specialized scrutiny.
- Parliament can annul, modify, or repeal delegated legislation.
- Weaknesses
- Control is often formal rather than substantive.
- Committees’ recommendations are not binding.
- Executive dominance reduces independence of scrutiny.
- Lack of expertise among legislators.
- Large volume of delegated legislation escapes proper oversight.
- Overall Assessment
- Legislative control in India is more theoretical than practical. While structures exist, actual effectiveness in preventing excessive delegation is limited.
- Much of the real control has shifted to judicial review, with courts acting as the primary safeguard against unconstitutional or arbitrary delegated legislation.
Suggestions for Improvement
- Strengthening Committees – Give the Committee on Subordinate Legislation more authority and resources.
- Capacity Building – Train legislators to understand technical regulations.
- Mandatory Debates – Ensure rules of major significance are debated in the House.
- Better Laying Procedure – Introduce affirmative resolution procedure for important rules.
- Public Participation – Encourage pre-legislative consultation and public feedback on draft rules.
Conclusion
Delegated legislation is necessary in modern governance, but unchecked delegation undermines parliamentary democracy. In India, Parliament has devised several mechanisms—laying procedures, committees, debates, and power of annulment—to control delegated legislation. However, the effectiveness of these measures has been limited due to practical challenges like executive dominance, volume of rules, lack of debate, and limited expertise.
Thus, while legislative control exists in principle, in practice it has often been weak, leaving judicial review as the more robust safeguard. Strengthening parliamentary committees, ensuring greater debates, and involving the public in rule-making could make legislative control more effective. Ultimately, for democracy to thrive, Parliament must reclaim its central role in supervising delegated legislation and ensure that delegation does not become abdication.
7. “Delegated legislation is a necessary evil in modern governance.” Critically evaluate this statement with special reference to India, the UK, and the USA.
Introduction
The phrase “delegated legislation is a necessary evil” aptly captures the dual nature of this concept in modern constitutional democracies. On the one hand, delegated legislation is necessary because legislatures cannot, in practice, cope with the immense volume, technicality, and urgency of law-making in a complex welfare state. On the other hand, it is considered an evil because it involves transferring law-making powers to non-elected authorities, primarily the executive, thereby risking arbitrariness, erosion of legislative supremacy, and dilution of democratic accountability.
The balance between necessity and danger is managed through various constitutional, legislative, and judicial safeguards in different jurisdictions. This essay critically evaluates the statement with special reference to India, the United Kingdom, and the United States.
Meaning of Delegated Legislation
Delegated legislation refers to laws made by an authority other than the primary legislature under powers conferred by a parent statute. These include rules, regulations, notifications, bye-laws, and orders. While the legislature lays down the policy framework, the executive or subordinate authority fills in the details.
Reasons for the Necessity of Delegated Legislation
- Legislative Workload – Modern legislatures are burdened with numerous responsibilities; they cannot devote sufficient time to detailed rule-making.
- Technical Complexity – Issues like environmental regulation, telecommunications, taxation, and health require technical expertise that legislatures lack.
- Flexibility – Delegated legislation can be amended quickly without going through the lengthy legislative process.
- Emergency Situations – In times of war, natural disasters, or pandemics, delegated powers allow the executive to act swiftly.
- Experimentation – Temporary and experimental rules can be made to test policies.
- Localization – Delegated legislation enables tailoring of rules to local needs through municipal bye-laws.
Thus, the necessity of delegation is undeniable in contemporary governance.
Dangers of Delegated Legislation – The “Evil” Aspect
- Erosion of Parliamentary Supremacy – Excessive delegation allows the executive to dominate law-making.
- Democratic Deficit – Unelected officials frame laws affecting citizens, undermining representative democracy.
- Risk of Arbitrariness – Wide discretionary powers may lead to abuse and arbitrary rule-making.
- Lack of Transparency – Delegated legislation often escapes parliamentary debate and public scrutiny.
- Complexity and Over-Regulation – The sheer volume of rules makes compliance difficult and legal certainty weaker.
- Weak Accountability – Mechanisms of parliamentary or judicial control are often inadequate.
Hence, while delegation is indispensable, it carries inherent dangers that justify its characterization as a “necessary evil.”
Delegated Legislation in India
Constitutional Basis
India does not prohibit delegated legislation but imposes limits. The Supreme Court in In re Delhi Laws Act (1951) held that essential legislative functions, such as laying down policy, cannot be delegated. Only ancillary powers may be delegated.
Necessity in India
- India’s complex socio-economic framework and welfare state model require extensive delegated legislation.
- Subjects like GST, environmental standards, telecom regulation, and social security rely heavily on subordinate rules.
- During COVID-19, the executive issued numerous notifications and guidelines under the Disaster Management Act, showing the need for swift delegated law-making.
Dangers in India
- The volume of rules often dwarfs primary legislation.
- Parliamentary scrutiny is weak; most rules are laid before the House without debate.
- Executive dominance in Parliament limits effective control.
- Citizens often find delegated rules confusing and inaccessible.
Safeguards in India
- Legislative Control – Laying procedure, Committee on Subordinate Legislation, and power of annulment.
- Judicial Control – Courts strike down rules that are ultra vires, unreasonable, or violative of fundamental rights (Chintaman Rao v. State of M.P., Indian Express Newspapers v. Union of India).
- Constitutional Framework – Articles 13, 32, and 226 empower courts to review delegated legislation.
Despite safeguards, excessive reliance on delegated powers persists, making the Indian experience a classic example of delegated legislation as a “necessary evil.”
Delegated Legislation in the United Kingdom
Historical Background
The UK, as the birthplace of parliamentary sovereignty, initially resisted excessive delegation. However, post–World War I and especially during World War II, the need for emergency powers led to the massive growth of delegated legislation. Today, it is a central feature of British governance.
Necessity in the UK
- The vast welfare functions of the state require detailed regulations.
- EU membership (until Brexit) contributed to an increase in statutory instruments (SIs).
- Flexibility and speed in law-making are valued in a system without a written constitution.
Dangers in the UK
- The volume of statutory instruments far exceeds Acts of Parliament.
- SIs often become law without debate, through the negative resolution procedure.
- Democratic accountability suffers because the executive dominates Parliament.
Safeguards in the UK
- Parliamentary Control – Affirmative and negative resolution procedures.
- Committee Scrutiny – The Joint Committee on Statutory Instruments and the Delegated Powers and Regulatory Reform Committee examine delegated legislation.
- Judicial Review – Courts apply the doctrine of ultra vires and reasonableness to invalidate unlawful delegated legislation.
Despite these safeguards, criticisms remain that delegated legislation in the UK escapes meaningful democratic scrutiny.
Delegated Legislation in the United States
Constitutional Framework
The US Constitution vests legislative power in Congress (Article I, Section 1). However, the doctrine of “non-delegation” restricts excessive transfer of legislative power. The Supreme Court has held that Congress cannot delegate its essential legislative function but can delegate powers if it lays down an “intelligible principle” to guide the delegatee.
Necessity in the US
- Regulatory agencies such as the Environmental Protection Agency (EPA), Federal Communications Commission (FCC), and Securities and Exchange Commission (SEC) make vast volumes of regulations.
- Specialized expertise is essential for highly technical fields.
- Delegated powers allow flexible and responsive governance.
Dangers in the US
- Rule-making by unelected administrative agencies raises questions of democratic legitimacy.
- Agencies often combine legislative, executive, and quasi-judicial powers, raising separation of powers concerns.
- Citizens find federal regulations voluminous and complex.
Safeguards in the US
- Judicial Control – The US Supreme Court has occasionally invoked the non-delegation doctrine (e.g., Panama Refining Co. v. Ryan (1935), Schechter Poultry v. United States (1935)). However, the doctrine has rarely been applied strictly since.
- Congressional Oversight – Through oversight committees, funding powers, and the Congressional Review Act (CRA), Congress monitors agency rule-making.
- Administrative Procedure Act (1946) – Provides procedural safeguards, including public notice, opportunity to comment, and judicial review of regulations.
Compared to India and the UK, the US imposes stricter constitutional and procedural controls on delegated legislation.
Comparative Analysis: India, UK, and USA
| Aspect | India | UK | USA |
|---|---|---|---|
| Constitutional Basis | Permitted with limits; essential functions cannot be delegated | No written constitution; delegation evolved pragmatically | Non-delegation doctrine; delegation allowed if guided by intelligible principle |
| Necessity | Socio-economic regulation, welfare state, emergencies | Welfare state, administrative needs, post-war expansion | Regulatory agencies, technical expertise |
| Dangers | Weak parliamentary scrutiny, executive dominance | Statutory instruments bypass debate | Agency overreach, democratic deficit |
| Legislative Control | Laying procedure, committees, annulment | Affirmative/negative resolution, committees | Congressional oversight, CRA |
| Judicial Control | Strong; active judicial review | Moderate; ultra vires doctrine | Stronger; non-delegation doctrine + APA |
| Overall | Heavy reliance, weak control → “necessary evil” | Executive convenience dominates, weak debate → “necessary evil” | Better structured safeguards, but agencies powerful → “necessary evil” |
Critical Evaluation
The characterization of delegated legislation as a “necessary evil” holds true across jurisdictions:
- Necessary – No modern state can function without delegation due to complexity, technicality, and urgency.
- Evil – Risks include executive dominance, reduced transparency, and weakened legislative control.
- India – Necessity is high due to socio-economic diversity, but control mechanisms are weak in practice.
- UK – Necessity justified by history and efficiency, but democratic accountability suffers.
- USA – Necessity balanced with procedural safeguards and judicial review, though concerns about agency overreach persist.
Conclusion
Delegated legislation indeed represents a “necessary evil.” It is necessary because modern governance cannot function without it, given the technical and administrative demands of regulating a complex society. It is evil because it undermines the democratic principle that only elected representatives should make laws, and it risks arbitrary executive action.
India, the UK, and the USA all reveal this duality. While safeguards exist—legislative scrutiny, judicial review, and procedural controls—the effectiveness of these mechanisms varies. India and the UK struggle with weak parliamentary oversight, while the USA emphasizes procedural safeguards and judicial review but still faces challenges of agency overreach.
Ultimately, delegated legislation must be tolerated as a practical necessity but constantly monitored as a potential threat. To reduce its “evil” nature, stronger parliamentary scrutiny, public participation, and judicial vigilance are essential. The challenge for every democracy is to strike a balance between efficiency in governance and preservation of democratic accountability.
8. Discuss the constitutional validity of delegated legislation in India. To what extent has the Supreme Court of India permitted delegation of legislative powers? Refer to leading case laws in your answer.
Introduction
Law-making is the primary function of the legislature in any democratic polity. However, the complexities of modern governance demand that legislatures delegate a part of their law-making authority to the executive and subordinate bodies. This phenomenon, known as delegated legislation, is now a well-accepted feature of governance in India.
While delegated legislation ensures efficiency, technical expertise, and flexibility, it also raises serious constitutional concerns. The Indian Constitution does not expressly prohibit delegation of legislative powers but places limits to preserve separation of powers, rule of law, and parliamentary supremacy. Over the years, the Supreme Court of India has played a decisive role in shaping the constitutional validity of delegated legislation.
This essay critically examines the constitutional validity of delegated legislation in India, the extent of permissible delegation, and the leading judicial pronouncements.
Constitutional Position
- No Express Prohibition
- The Constitution of India does not explicitly forbid delegation of legislative powers. Unlike the United States, which strongly emphasizes the doctrine of non-delegation, India’s Constitution is more flexible.
- Articles Implying Delegation
- Article 312 empowers Parliament to regulate All-India Services by law, including authorizing delegated powers.
- Articles 245–246 (distribution of legislative powers) allow Parliament and State Legislatures to make laws, which may delegate powers to authorities.
- Article 13 defines “law” to include rules, regulations, and bye-laws, acknowledging delegated legislation.
- Essential Legislative Function Doctrine
- The Supreme Court has consistently held that essential legislative functions, namely, laying down policy and enacting binding principles of law, cannot be delegated. Only ancillary or procedural powers may be delegated.
Judicial Approach to Constitutional Validity
1. Pre-Independence Position
- Queen v. Burah (1878)
- The Privy Council upheld conditional legislation, where the Governor-General was empowered to extend laws to certain territories.
- The Court distinguished between conditional legislation (valid) and delegated legislation (more restricted).
- This case laid the foundation for permissible delegation in India.
2. Post-Independence Cases
(a) In re Delhi Laws Act, 1951 – The Landmark Case
- Facts: Parliament authorized the Central Government to extend laws made in other provinces to Delhi with modifications. The question was whether this delegation was constitutional.
- Judgment:
- The majority held that delegation of ancillary powers is permissible, but delegation of essential legislative functions is unconstitutional.
- Essential legislative functions include: laying down legislative policy, determining standards of conduct, and enacting substantive law.
- Parliament cannot abdicate or efface itself by conferring unlimited legislative power on the executive.
- Significance: Established the doctrine that “delegation is permissible, but essential functions cannot be delegated.”
(b) Raj Narain Singh v. Chairman, Patna Administration Committee (1955)
- Issue: The Committee was authorized to extend provisions of one Act to other areas with modifications.
- Held: Extension with modifications that change essential features of law was unconstitutional. Only minor modifications are permissible.
- Importance: Reinforced the limit on modifying essential provisions through delegation.
(c) Harishankar Bagla v. State of Madhya Pradesh (1955)
- Concerned the Essential Supplies (Temporary Powers) Act, 1946, which delegated wide powers to the executive.
- Held: Delegation was valid as the Act itself laid down legislative policy—to regulate essential supplies in public interest.
- Importance: Confirmed that if legislative policy is clearly defined, wide delegation of detail is permissible.
(d) Bimal Chandra Banerjee v. State of Madhya Pradesh (1970)
- Held: Delegated legislation cannot operate retrospectively unless expressly authorized by the parent Act.
- Reinforced the constitutional requirement of clarity and limits in delegation.
(e) Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax (1974)
- Parliament delegated power to the State Government to levy taxes.
- Held: Delegation of taxing power is permissible, provided the parent statute lays down policy, principles, and guidelines.
- Significance: Validated delegation of fiscal powers with adequate safeguards.
(f) Ajoy Kumar Banerjee v. Union of India (1984)
- Held: Parliament cannot delegate essential features of constitutional provisions.
- Example: Article 323A allows Parliament to create Administrative Tribunals, but the core framework must be legislative, not delegated.
(g) Indian Express Newspapers v. Union of India (1985)
- Issue: Customs duty imposed on newsprint challenged.
- Held: Subordinate legislation can be challenged under Article 14 for arbitrariness, unreasonableness, or violation of fundamental rights.
- Significance: Expanded judicial review of delegated legislation.
(h) State of Tamil Nadu v. P. Krishnamurthy (2006)
- The Supreme Court laid down comprehensive grounds for invalidating delegated legislation:
- If it is ultra vires the Constitution.
- If it is ultra vires the parent Act.
- If it contravenes statutory provisions.
- If it is manifestly arbitrary or unreasonable.
- If it is mala fide.
- Importance: Provided a clear framework for judicial scrutiny.
Extent of Permissible Delegation
The jurisprudence developed by the Supreme Court reveals the following principles:
- Permissible Delegation
- Laying down detailed rules, procedures, classifications, and exemptions.
- Delegation of fiscal powers (with guiding principles).
- Conditional legislation (application of law contingent on conditions).
- Administrative and procedural matters.
- Impermissible Delegation
- Abdication of essential legislative function.
- Delegation of pure legislative policy-making.
- Unfettered or unguided delegation without standards.
- Retrospective rule-making (unless expressly authorized).
- Taxing Power
- Delegation of power to fix tax rates is permissible if parent statute provides guidelines (as held in Gwalior Rayon Silk).
- Constitutional Limitations
- Delegated legislation must conform to fundamental rights (Articles 14, 19, 21).
- Delegation cannot violate the basic structure of the Constitution.
Safeguards Against Excessive Delegation
- Legislative Control
- Rules must often be laid before Parliament (laying procedure).
- Parliamentary committees (Committee on Subordinate Legislation) review delegated laws.
- Judicial Control
- Judicial review under Articles 32 and 226.
- Courts strike down ultra vires, unreasonable, or unconstitutional rules.
- Procedural Safeguards
- Requirement of prior publication, consultation, or approval in parent statutes.
Comparative Note: India and Other Jurisdictions
- United States – Strong non-delegation doctrine; delegation valid only if guided by “intelligible principle.” The US Supreme Court rarely strikes down delegation but maintains stricter theoretical limits.
- United Kingdom – No written constitution; delegation extensively used. Parliamentary committees and judicial review (ultra vires doctrine) act as safeguards.
- India – Follows a middle path: delegation is broadly permissible, but essential legislative function cannot be delegated. Judicial review is an important safeguard.
Critical Evaluation
- Judicial Pragmatism – The Indian judiciary has pragmatically allowed broad delegation, recognizing the needs of a welfare state.
- Safeguard of Policy Requirement – By insisting that policy must be laid down in the parent Act, courts preserve legislative supremacy.
- Shift from Conditional to Delegated Legislation – Indian courts moved beyond the rigid distinction of Queen v. Burah to embrace a functional doctrine of “essential function.”
- Weak Legislative Oversight – Parliamentary committees exist but their recommendations are not binding; most rules are laid without debate.
- Judicial Review as Primary Check – The judiciary has emerged as the main guardian against excessive delegation, though it intervenes selectively.
Conclusion
The constitutional validity of delegated legislation in India rests on the principle that delegation is permissible, but essential legislative functions cannot be delegated. The Supreme Court, through landmark cases like In re Delhi Laws Act, Harishankar Bagla, Raj Narain Singh, and Indian Express, has clarified the boundaries of permissible delegation. While wide delegation has been upheld to meet the needs of a complex welfare state, courts insist that the legislature must lay down the policy, principles, and essential framework.
Thus, the Indian model represents a pragmatic balance between necessity and constitutional safeguards. Delegated legislation is valid as long as it operates within the framework of the Constitution, parent statute, and judicially enforced principles. However, the real challenge lies in strengthening parliamentary scrutiny and ensuring that delegation does not amount to abdication.