Professional Documents
Culture Documents
DELEGATED LEGISLATION
SUBMITTED TO PROF DR. ASAD MALIK
ACKNOWLEDGEMENT
Retake this opportunity to express my profound gratitude for the personal
involvement and constructive thinking provided beyond the practical
knowledge during the project by PROF. Dr. ASAD MALIK who
channelized my raw ideas and gave me the encouragement.
Without her help it would have been difficult for me to reach
the position which I have accomplished.
REGARDS
Mohammed Aadil
TABLE OF CONTENT
1) Delegated Legislation Meaning.
2) Growth Of Delegated Legislation.
3) Control Of Delegated Legislation.
4) Procedural Control Of Delegated Legislation.
5) Method Of Controlling Delegated Legislation
6) Prior Publicity Of Legislation.
(A) Position In U.K
(B) Position In U.S.A.
(C) Position In India.
7) Consultation Of Interest.
(A) Position In U.K.
(B) Positioin In U.S.A.
(C) Position In India.
8) Publicity Of Delegated Legislation.
(A) ) Position In U.K.
(B) Positioin In U.S.A.
(C) Position In India
Cases
Aliseb Husensab Hulkoti V State Of Karnataka AIR 1980 NOC 110 (KANT)
Aruna roy v. Union of india AIR 2002 SC 3176
Bangalore University v. St. John,s Medical College AIR 1980 KART 142
Bangalore W.C. & S. Mills Co. v. Bangalore Corporation AIR 1962 SC 562
Banwarilal agarwala v. State of Bihar AIR 1961 SC 841
Blackpol Corporation v. Locker (1948) I KB 349
D. B. Raju v. H.J. Kantharaj AIR 1990 2 SC 178
G. Narayan Reddy v. State of A.P (1975) 35 STC 319
Govindlal v. Agricultural Produce Market Committee AIR 1966 SC 263
Harla v. State of Rajastha AIR 1951 SC 461
Joint Chief Controller of Imports v. Aminchand AIR 1965 SC 546
Lachmi Narain AIR 1967 SC 714
Lim Chin Aik v. The Queen (1963) AC 160
Narender Kumar v. U.O.I AIR 1960 SC 430
New Industrial Corporation V. Union Of India AIR 1980 DEL 277
P.V. Shivarajan V. Union of India, AIR 1959 SC 556
Panama case 293 US 384
Queen v.sheer metal crafts ltd 1 QB 586
Rajendra agricultural university v. Ashok kumar Prasad AIR 1954 SC 569
ADMINISTRATION LAW
PROCEDURAL CONTROL OF DELEGATED LEGISLATION
Introduction
According to the traditional theory, the function of the executive is to administer the law
enacted by the legislature, and in the ideal state the legislative powers must be exercised
exclusively by the legislature who is directly responsible to the electorate. Apart from the
pure administrative function executive also performs legislative and the judicial function also.
In England theoretically it is only 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.
proposition of law that the power of delegation is a constituent element of legislature power
as a whole and that in modern times legislature enacts laws to meet the challenge of socioeconomic problems. The legislature often finds it convenient and necessary to delegate
subsidiary or ancillary powers to delegate of their choice for carrying out policy laid down in
this act3.
The term delegated legislation used in two different senses;
(a) The exercise by a sub- ordinate agency of the legislature power delegated to it by the
legislature. Or
(b) The subsidiary rules themselves which are made by the sub-ordinate agency in pursuance
of the power as mentioned in (a).
As administration lawyers, we are more interested in the technique rather than the actual
rules made, and so the term delegated legislation is used primarily in the first sense.
In India quite often the term employed is subordinate legislation. This term conveys the
idea that the authority making the legislation is sub-ordinate to the legislature. The technique
of delegated legislation is often very extensively used in India. Two illustrate will suffice;
(a) The imports and exports (control) act, 1947 is a small piece of legislation containing eight
sections.S.3 authorises the central government to prohibit or restrict the import or export of
goods of any specified description by order.
Under this provision, the central government has built up a vast mechanism of control over
imports and exports through delegated legislation promulgated under the statute.
(b) Under the essential commodities act, 1955, the central and state government have
promulgated a large no. Orders and rules. The act in itself is a small piece of legislation
containing only 16 section, but under it the government carries on the whole operation of
controlling and regulating production, movement ,supply, sale, and prices of a number of
commodities characterised as essential commodities.
Delegated legislation (in the second sense mentioned above) is designated by several names,
such as, rules,regulation,bye-laws,order.etc, thought the term rules is more commonly
employed. The terms regulation and bye-laws are usually used to denote the legislation
framed by statutory corporations under delegated legislative power.
At times , a statue may use several terms to denote delegated legislation made there under.for
instance, in the income-tax act. 1961, the powers to issue orders notification and rules are
spread over a number of section.e.g;
(i) a general power on to make rules for several matters is conferred on the central board of
direct taxes by s. 295;
(ii) under section 121 to 124, distribution and allocation of k to be performed by various tax
authorities may be made through orders.
(iii) under section 80-j (7) the central government through a notification in the official gazette
may take away an exemption granted under the section from certain newly established
undertakings; and
(iv) s. 80-k speaks of the rules with reference to tax on dividend from newly established
undertakings or hotels
The essential commodity act, 1955 uses three terms- order, notified order and notificationwhich the central government can make in exercise of the powers delegated to it under the
act.
According to the
(A) Pressure Upon Parliamentary Time- the affairs of modern state are increasingly
day-by-day,due to the expanding horizons of the welfare state activity, making it almost
impossible for the legislature to devote time to all the legislative details. Therefore, the
legislature formulates the general policy i.e, the skeleton and empowers the executive to fill
in the details, thus giving flesh and blood to skeleton so that it may live by issuing necessary
rules, regulation, bye-laws etc. E.g in information technology act, parliament has only laid
out the basic policy and rule making power is given to the executive.
common man cannot be expected to appreciate and legislate on the same, and the assistance
of an expert may be required. Therefore, the legislative power may be conferred on experts
to deal with the technical problems e.g, antibiotic banning on the recommendation of Indian
medical council, electricity matters etc
(D) Experiment -Supreme legislation is rigid but delegated legislation is flexible. So. The
practice of delegated legislation enables the executive of
(e) Emergency Measure during the breakdown of war or break down of law and
orderwiths, epidemics,flood etc. The legislature cannot meet at short notice, so the executive
is vested with special and extremely wide power in form of delegated legislation to cope with
such situation.
Because of this factors ,administarative legislations are sometimes called delegated
legislation. It has become necessary and indispensable.
Controls
The controls over delegated legislation operate two level;
(a) at the point of delegation of power by the legislature.
The question here is; how much power should the legislature be permitted to delegate . this is
known as pre-natal control. The question at this stage is whether the legislature should be free
to delegate any amount of legislative power to the or the legislature should be restrained in
this respect .
(b) at the point of exercise of delegation power by the administration.
The question whether here is subject to what restraints and safeguards should be delegate
function in exercising the delegated legislative powers , in short, what control-mechanism
should be put into being as to minimize the hazards of the technique of delegated legislation?
This is known as post- natal control
It may be noted that both levels of control are supplementary to each other. The efficacy of
the control at the second stage, to a large extent, depends che first .if the legislature confers
power subject to certain norms and standards, then the exercise of the power can be tested in
the light of those standard, may be checked by avoiding the delegated legislation produced by
the delegate by applying the doctrine of ultra vires.
Safeguards Can be Introduced so that the power Conferred Is Not Misused In Order To
Ensure That The Power Of Delegated Legislation Misuse, It Has Been Subjected To The
Three Folds Controls. These Modes Of Controls May Be Classified Under The Following
Heads.
Procedural control
Parliamentary control
Judicial control
legislation.
Therefore certain procedural safeguards have been provided which are relevant to keep
constant watch over the exercise of this power by the administration authorities. Cecil Carr
puts great emphasis on this mode of control. He suggest the following five points.(1) The authority exercising delegated legislation should be identifiable and trustworthy;
(2) The limits of delegated authority should be clearly defined;
PROCEDURAL CONTROL OF DELEGATED LEGISLATIONPage 10
Prior publicity of Proposed Rules and Regulations(Anti- Natal Publicity)Procedural safeguard against delegated legislation is natal publicity of proposed rules and
regulation so that the persons to be affected by regulation may know before hands and make
representation if they are aggrieved.
Position in America In America there is wide spread use of the technique of anti natal
publicity .the system of anti-natal publicity is provided for in the American Administrative
procedure control act, 1946. Section (4) of the act requires general notice of the proposed
rulemaking to be published in the federal register. It should be noticed that the procedural
requirement prescribed by section 4 of the America need not be invariably be followed in
every case of rule making.
Position in England the system of anti-natal publicity was provided for in Britain in the
section 1 of the rules of publications act,1893. Under this section public notice was given at
least 40 days of proposals to make statutory rules and department concern has to be
considered representation or suggestions made by interested bodies who were thus made
aware of proposed rules of which they otherwise might not have known. The statutory
instrumental act,1946 which takes the place of the rules of publication act, 1893 omits the
anti- natal safeguards of the earlier statute.
Position in India .India the practice of prior publication has been adopted wherever prior
consultation has been deemed necessary. According to section 23 of the general clauses act,
1897, the authority shall publish the draft rules for information of affected interest in such
manner as it deems sufficient.
The effect of the expression previous publication according to section 23 of the general
clause act, is that(1) The rule-making authority shall publish a draft of the proposed rules for information of
the affected interest;
(2) The publication shall be made in such manner as the authority deems sufficient;
(3) There shall be published with the draft rules a notice specifying a date on or after which
the draft will be taken into consideration; and
(4) The authority shall take into consideration any objection or suggestion which may be
received by it while finalising the rules.
The technique of previous publication defers the effectuation of the rules for sometimes and
gives opportunity to the interested parties to have their say in the matter.
The authority shall take into consideration any such object or suggestion which may be
received by it while finalising the rules. It is noteworthy that in India the number of statutes
in which the condition of prior publication is provided is not many. It has been stated that
not more than sixty central statutes existing until 1960 lay down condition of giving
antecedent publicity to the rules made there under act4. Some of the statutes provided for
anti- natal publicity. Section 43 of the co-operative societies act, 1912, section 30(3) of the
charted accountants act, 1949 and section 15 of the central tea board act,1949. Provide
example where it is required that the rules must first be published in draft to make / give an
opportunity to the people to have their say in the rule-making.
Cases
New Industrial Corporation V. Union Of India5- indicates that the government could avoid
many pitfalls, arising out of ignorance, through consultation .here the Delhi high court found
the rules involved to be arbitrary and violation of art 19 (1) (g). The court emphasised that
such a situation could have been avoided had the governme nt followed the process of
consultation.
4 The Indian law institute study on delegated legislation in India (1964), p.,341
5 AIR 1980 Del 277
PROCEDURAL CONTROL OF DELEGATED LEGISLATIONPage 12
Aliseb Husensab Hulkoti V State Of Karnataka 6 the Karnataka high court has ruled that
the persons likely to be affected by the promulgation of the rules
have reasonable
opportunity to go through the draft rules and file their objections and suggestions. Where
only four days were given for filing objections and suggestions, there was really a denial of
opportunity of reasonable opportunity to persons likely to be affected thereby. The
opportunity to be afforded should be adequate and reasonable and should not be a sham,
nominal or illusory.
Cases
Rajnarain Singh v. Chairmain P.A Committee 7 a provision authorising the affected persons
to file objections against any taxation measure imposed by a municipal body wad regarded as
a matter lying within the power of the legislature and not of the executive to tamper with.
Lachmi Narain 8 three months notice to effect a modification in the schedule annexed to
the sales tax law was held to be mandatory, as well as a matter of legislative policy. One of
the reasons favouring this view was that it was necessary that dealers and others likely to be
affected by the proposed amendment might have sufficient time and opportunity for making
representation, objections or suggestions in respect of the intended amendment.
Raza buland sugar co . v. Rampur muncipilaty 9- In this case the statute required prepublication of a resolution passed by the municipality in a newspaper published in Hindi. The
municipality published the resolution in a paper published in Urdu. It was contended the
requirement of its publication has not been fulfilled but the court rejected the contention and
held that what is material is publication not the manner of publication.
Tulispur sugar co. v. Notified area committee10 the supreme court observed that under by
3of the act being in the nature of the sub-ordiante legislation, it was the duty of the state
government to follow the same procedure which was applicable to the promulgation of rules
under section 39 of the act. The sub section (3) of section 39 of the act which provided that
the power to make rules under the said provision was subject to the condition of the rules
being made after previous publication.
Rajendra agricultural university v. Ashok kumar Prasad 11 S.C observed that once a law
lays down publication of a statute in the official gazette a part of the process of making a
statute, the object of making such a provision for publication recedes into the background and
becomes irrelevant, and on the other hand, fulfilment of the requirement to make public the
statute by publication in the official gazette becomes mandatory and binding.
Departmental Practice regarding prior consultation of interestsAn important measure to check and control the exercise of power of delegated legislation is
the technique of consultation through which affected interest may participate in rule making.
Wade and Phillips rightly observed one way of avoiding a clash between the department
exercising legislative power and interest most likely to be effected is to provide for some
form of consutation
consulting the British medical association or about the local government without consulting
the country council association and the association of municipal corporations
Position in India-In India there is no general provision of law, requiring the consultation
of the affected interest in the process of rule making where consultation is required, such
words as the power to make rules shall be subject to the condition of previous publications
are inserted in the parent Act. Section 23 of the General clauses Act, 1897 provides that
whenever the term previous publication is condition precedent for making the rule the
following will follow:
(1) The authority shall publish the draft rules for the information of the affected interests:
(2) The publication shall be made in such manner as the authority deems sufficient;
(3) There shall be published with the draft rules a notice specifying a date on or after which
the draft will be taken into consideration;
(4) The authority shall take into consideration any objection or suggestion which may be
received by it while finalising the rules.
Thus this technique would result in the postponement of the enactment of the rules and give
an opportunity to the interested parties to represent theie viewpoints in the manner of the
rule-making authority.
The practice of prior consultation of interests likely to be affected by delegated legislation has
been held to be mandatory.
Cases
Banwarilal agarwala v. State of Bihar12-the supreme court has held section 59 of the mines
Act, which requires reference of draft legislations to mining boards in order to consult them is
mandatory and regulation made in contraventions of this requirements would be invalid. It is
only consultation which is necessary, the rule-making authority is not bound to abide by the
recommendations made it by the concerned interests.13
Aruna roy v. Union of india 14 if consultation is thought to be advisable the particular parent
act must prescribe it through a statutory provision. In the absence of any statutory
requirement, consultation cannot be claimed by anyone as mater of right. Consultation can be
claimed if statutory provision warranting the same.
Rajnarain V. Chairmain, Patna Administration Committee15- when consultative procedure
is prescribed by a statutory provision, it is usually regarded as mandatory. For example, when
the act prescribe that before an administrative body levies a tax the people will have a right to
file objections against the tax levy and to be heard the provision is mandatory.
It is notable that in some statutes provisions are laid down conferring the power on the
affected interests to initiate and frame rules themelves.
For example, Section 9-A of the forward contracts (regulation) Act, 1952 authorised the
recognised association to make rules with respect to several matters mentioned therein. These
rules become effective after having been approved by the central governmental. The
governmental can also make such modification as it deems fit.
publication of any law, rule or regulation, is extremely necessary to ensure full justice to the
public. Laws should be ascertainable and clear to the persons who are to be affected by it.
They should be amply published, so that it may not come to the public as a surprise. If it is
not known to the persons, it would not be possible for them to regulate their conduct
accordingly. It is therefore necessary that rules and regulations made by administrative
agencies are published.
Position In England- in great Britain all the statutory instruments are published by
stationary officer having laid before the parliament. They contain the date on which they
come into force. Section 2(1) of the statutory instruments act, 1946, requires that immediately
after the making of any statutory instruments it shall be sent to queens printers and numbered
and unless otherwise provided by subsequent acts or by regulation made under the act of
1946, copies of the instrument shall as soon as possible be printed and sold by the queens
printers.
Her majestys stationary officer is required to publish from time to time a statutory
instruments issue list showing the number and name of each new instrument within the period
and the date of the issue. An annual edition of statutory instruments is published. It contains
all rules, regulations and orders and other instruments made by the sovereign, a minister and
a government department.
Cases
Blackpol Corporation v. Locker16 it was stated that the maxim that ignorance of law does
not excuse any subject represents the working hypothesis on which the rule of law vests in
British democracy. In the aforesaid decision the statutory instruments act of 1946 which came
into force in 1948 was also criticized as it does not extend to sub delegated legislation.
Lim Chin Aik v. The Queen 17 the question which arose for consideration before the privy
council was whether a person could properly be convicted for an offence of remaining in
Singapore while the subject of an order prohibiting his entry if he was unaware about the
16 (1948) 1 KB 349
17 (1963) AC 160.
PROCEDURAL CONTROL OF DELEGATED LEGISLATIONPage 17
existence of the order. It was held that offence required the proof of mens rea and
argument of the crown that the ignorance of law is no excuse was rejected.
Queen v.sheer metal crafts ltd18 an iron and steel prices order was published bur schedule
appended thereto were not published. It was held that non publication of schedule sis not
invalidate the order, as provisions for printing and publication wee held to be procedural.
Position in America- in the u.s, before 1935, there was no procedure for publications of
rules. This disclosure of the unsatisfactory state of affairs and the resulting uproar, led the
congress to press federal register a
ct, 1935 section (1) provides that all the rules which are required to be published under
federal register unless it is published, it cant be enforced against anyone except who has
actual notice of it. The provision for publication of delegated legislation were further
strengthened by enacting the administrative procedure act, 1946 section 4(c) defers
effectively of the rules by 30 days from the date of publication so that everyone get an
opportunity of knowing them.
Panama case19 where the United States o supreme court found that the inadequate
publicity, the industry, the enforcement officers, the lower courts were all unaware that a
NRA regulation on which the proceeding were based in the case had been revoked.
(b) the individuals can have an easy access to the rules for they can easily locate them.
Cases
Harla v. State of Rajasthan20- the council by resolution enacted the jaipur opium act which
made rule that if person carried opium beyond the certain limit then it was an offence
committed and penalty had to be imposed on the accused but the said act was never
publicised. A person harla was prosecuted for the conviction of this law because he was in
possession of opium in more quantity than permitted. He contended that it was case of
procedural ultra vires.
The supreme court set aside his conviction and declared the statute devoid of any force. Court
held as followsit is principle of natural justice that the laws should be made known to the public. It should
be properly made and published. Publicity and accessibility requirements of natural justice
and they must be complied with. Therefore, in order to give legal force to any act or
instrumental including rules, regulation, etc . it is necessary that they should be published
and made known to the public
Narender Kumar v. U.O.I21- section 3 of essential commodity act,1955 required all the rules
to be made under the act to be notified in the official gazette. The principles applied by
licensing authority for issuing permits for the acquisition of non-ferrous metals were not
notified. The S.C held the rules ineffective
State of Maharashtra v. M.H George22- a notification was published in the
gazette of India on 24 November 1962 prohibiting import of gold in India except on certain
conditions. The respondent left Zurich on 27 November 1962 carrying gold with him and was
arrested at the Bombay airport the next day. He pleaded his ignorance of the notification.
negativing the contentions, the S.C held that the notification had been published and made
known in India and ignorance pleaded by the respondent/accused was wholly irrelevant.
20 AIR 1951 SC 467
21 AIR 1960 SC 430
22 AIR 1965 SC 722
PROCEDURAL CONTROL OF DELEGATED LEGISLATIONPage 19
Bangalore W.C. & S. Mills Co. v. Bangalore Corporation 23- The court upheld the impugned
delegated legislation even though it was not published in the manner required under the
statute. In this case the imposition of a tax by the municipality was questioned on the ground
that it was not duly published. The tax was imposed as a result of the resolution passed by the
municipality and published in the local newspaper. It was not published in the official gazette
as required by the statute. But the Supreme Court upheld it in a view of a statutory provision
that no act or proceeding not affecting the merits of the case. The court said that the above
provisions cured the defect of improper publications of the delegated legislation.
Joint Chief Controller of Imports v. Aminchand 24- the court held the import policy to be
unenforceable against the individual as they were not published in the gazette of India
according to the requirement of imports and exports control act, 1947.
In such cases three possible dates may be taken into account alternatively:
(1) The date on which they are made;
(2) The date of their publication; or on
(3) The date on which they are published, in case of the statutory requirement of their
publication.
G. Narayan Reddy v. State of A.P 27- the question arose about the actual date of publication
of a government notification. In this case a government a notification increasing the rate of
sales tax was published in the official gazette bearing 1 december 1966 as the date. It was
actually received by the subscribers on 25 december . it, therefore, held that the government
notification came into effect on 12 december , 1966 and not earlier.
Where the statute specificially requires the authority to specify the date on which it is come
into operation, it does not come into force merely by its publication unless the date is
specified.
Bangalore University v. St. John,s Medical College 28- the university syndicate passed an
ordinance which got published under the authority of vice- chancellor. But the date was not
mentioned when it was come into force. Under the act it was required that the syndicate
should specify the date on which came into effect. It was held that mere publication of the
ordinance was not enough to bring into force.
It may be noted that there is no general statute requiring publication of the rules and orders. It
would be desirable if some general provision is added to the general clauses act, 1897, on the
lines of the statutory instruments act,1946, in England.
The committee on subordinate legislation of the house of people has put great emphasis on
the need of giving wide publicity to the rules made by the executive. it found that the ministry
of law, government of India, publishes the rules made by it in the gazette of India and sends
copies to the state government which are required to publish it with a view to giving them
widest publicity other ministries of the government do not follow any set of principle but they
27 (1975) 35 STC 319 (AP)
28 AIR( 1980) KART 142
PROCEDURAL CONTROL OF DELEGATED LEGISLATIONPage 22
have favoured an uniform procedure in this respect and have made following
recommendations.
(1) While making each rules and order the central government should decide whether it is of
concern or importance to the general public
(2) Advance copies of all rules and orders which are of importance to the general public
should be sent to the state government concerned for arranging wide publicity in their states
in the following manner;(a) by publishing the rules and orders in the state gazette, and
(b) publishing the translation of rules and orders in the recognised languages of the states in
the state gazette.
(c) the publication of such rules and orders should preferably be simultaneous at the centre
and in the states.
(d) press communiqus should be issued by the government to give publicity to the general
report and effect of the rules and
Bibliography
(1)
Dr. U.P.D Kesari, Lectures Of Administrative Law, VIII ED. Central Law Agency
Allahabad.
(2) I.P Massey , Administrative Law,IV .Ed, Eastern Book Company Lucknow.
(3) M.P. Jain & S.N Jain, Principles Of Administrative Law ,IV Ed. Wadhwa& Company,
Nagpur.
(4) D.D Basu, Administrative Law, VI Ed. Prentice Hall Of India, Private Ltd. N.D