ppt on delegated legislation

1. Dr. Pallavi Singh
Assistant Professor
CUSB, Gaya

2. ‘Delegation’ has been defined by Black’s Law
Dictionary as an act of entrusting a person with the
power or empowering him to act on behalf of that
person who has given him that power or to act as his
agent or representative.
According to Sir John Salmond, “Subordinate
legislation is that which proceeds from any authority
other than the sovereign power.”
‘Delegated legislation’ means exercising of legislative
power by an agent who is lower in rank to the
Legislature, or who is subordinate to the Legislature

3. The historical backdrop of the delegation of power can
be followed from the Charter Act of 1833 when the
East India Company was recapturing political impact in
India. The Charter Act of 1833 vested the
administrative powers only in the hands of the
Governor-General-in Council, which was an official
body. He was enabled to make laws and guidelines for
revoking, correcting or modifying any laws or guidelines
In 1935 the Government of India Act, 1935 was passed
which contained a serious plan of delegation.
Article 312 of the given Constitution.
This Article gives right to the Rajya Sabha to open a
new branch of All India Service with a majority of
two-thirds majority vote. This means that some powers
of legislation will be delegated to the new recruiter of
All India Service

4. • Pressure upon time of Parliament
• Technicality
• Flexibility
• Emergency
• Experiment

5. The delegated legislation can be challenged in India in
the courts of law as being unconstitutional, excessive
and arbitrary. It can be controlled by the Judiciary on
two grounds i.e., firstly, it should be on the ground of
substantial ultra vires and secondly, it should be on the
ground of procedural ultra vires.
When an act of legislature enacts in excess of power conferred
on the legislature by the constitution, the legislation is said to be
ultra vires and on the same principle, when a subordinate
legislation goes beyond what the delegate is authorised to enact
then it will be considered ultra vires.

6. 1. Constitutionality of the parent Act
2. Constitutionality of the delegated legislation
In Chintaman Rao v. State of Madya Pradesh, the parent Act has authorized
the deputy commissioner to prohibit the manufacture of bidis in some areas for
a certain period, it was held that the parent Act was unconstitutional as it
violated Art. 19(1) (g) of the constitution and the court also struck down the
order passed by the deputy commissioner.
In CB Muttamma v. Union of India, a provision in
service-rule making a female employee obtain the
permission of the government before solemnizing the
marriage and denying the right to get an appointment
on the ground that she was married was held to be
unconstitutional.
3. Malafide
In Narendra Kumar v. Union of India, the court
struck down the delegated legislation on the ground
that the delegated legislation has acted Malafide or in
bad faith.

7. 5. Retrospective operation
6. Exclusion of the judicial review
4. Unreasonableness and Arbitrary
In Air India v. Nargeesh mirza, a regulation framed
by air India providing that services of an air hostess
could be terminated if she becomes pregnant was held
arbitrary, unreasonable, and violative of articles 14 and
15 of the constitution
The court in the case of State of Madhya Pradesh v.
Tikim Das held that “the delegated authority cannot
use the power of retrospective effect for rules and
regulations unless the concerned statute expressly or
by necessary implications confers power in this
behalf”.
Sometimes the clause is inserted in the parent Act
ousting the jurisdiction of the courts, such an ouster
clause cannot affect the jurisdiction of the courts
under articles 32,136, and 226 of the constitution as
judicial review is now considered as a part of basic
structure doctrine.

8. When a subordinate legislation fails to comply with the
procedural requirements prescribed by the parent act or by
a general law, it is known as procedural ultra vires. While
framing rules, bye-laws, regulations, etc. The parent act or
enabling statute may require a delegate to observe a
prescribed procedure such as holding of consultations with
particular bodies or interests, publication of draft, rules or
bye-laws, laying them before parliament, etc.
IT HAS TWO ASPECTS:
1.PUBLICATION
2.CONSULTATION

9. One of the techniques adopted by courts to control exercise of power
by executive against abuse of power is the process of consultation with
affected interests before delegated legislation or statutory instrument
is prepared.
Case of Chandramouleshwar Prashad v. High Court of Patna, 1969
The public must have access to the law and they should be given an
opportunity to know the law.
Case of Govindlal Chhaganlal Patel v. Agricultural Produce Market
Committee, 1975

10. With the growth of the administrative law in the 20th century, the
delegated legislation has acquired a very prominent place in the
administration, with ever-widening state activities the parliament cannot
exercise all its functions without delegation, and hence delegation is
utmost necessary however the delegated legislation must not go beyond
its authority while excessing its power and the validity of the delegated
legislation will be determined by the courts that whether it is ultra-vires
or not.