ADMINISTRATIVE LAW

Introduction
Administrative law is part of the branch of law commonly referred to as public law, the law
which regulates the relationship between the citizen and the state and which involves the
exercise of state power. So, it is a part of the legal framework for public administration.
Public
administration is the day-to-day implementation of public policy and public programs in
areas
as diverse as immigration, social welfare, defence, and economic regulation—indeed in all
areas of social and economic life in which public programs operate. Administrative law is the
body of law that governs the activities of administrative agencies of government.
Government agency action can include rule making, adjudication, or the enforcement of a
specific regulatory agenda.

Definition

Sir Ivor Jennings

• Administrative law is relating to the administration. It determines the organizations, powers
& duties of the administrative authorities.
• It is the most widely accepted definition of the Administrative Law.

Wade
•The relationg the control of governmental power is called as administrative law.
• According to Wade, the primary object of administrative law is to keep powers of the govt.
within their legal bounds so as to protect the citizens against their abuse.
• However, this definition also does not define the subject and also does not deals with the
powers & duties of the administrative authorities.

K C Davis
• Administrative law is the law concerning the powers and procedures of administrative
agencies including especially the law governing judicial review of the administrative action.
Nature of Administrative Law:
Administrative Law is a new branch of law that deals with the powers of the Administrative
authorities, the manner in which powers are exercised and the remedies which are available
to the aggrieved persons, when those powers are abused by administrative authorities. The
Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of
the society are prepared and administered by the government. The execution and
implementation of these programmes may adversely affect the rights of the citizens.
The actual problem is to reconcile social welfare with rights of the individual subjects. The
main object of the study of Administrative law is to unravel the way in which these
Administrative authorities could be kept within their limits so that the discretionary powers
may not be turned into arbitrary powers.

Scope of Administrative Law

Administrative law is the branch of public law that deals with the powers, organization, and
methods of government agencies and officials. It ensures that all government actions follow
the law, are fair, and respect people’s rights. Main aspects included are:

 Rule-Making: Covers how government agencies make rules and regulations

(delegated legislation), under powers given by Parliament or state legislatures.
 Decision-Making: Deals with how agencies and tribunals resolve disputes (like
service matters) and must follow fair procedures, such as giving both sides a chance
to be heard.
 Remedies: Offers ways for people to challenge unfair or illegal government
decisions, by filing writs, appeals, or using administrative tribunals.
 Accountability: Checks misuse of power by ensuring agencies do not act arbitrarily,
and can be reviewed by the courts.
 Government Liability: Explains when the government can be sued for the wrongful
acts of its authorities.
 Public Bodies: Includes government-run organizations and corporations, overseeing
how they function and serve citizens.

Development of Administrative Law

Administrative law in India developed over different stages to suit changing needs:

 Colonial Roots: The British created early administrative systems to regulate officials
and maintain order. This was the foundation for many modern rules.
 Post-Independence Growth: After 1947, India’s Constitution gave citizens
fundamental rights, expanded government activities, and boosted the need for checks
on executive power through law and courts.
 Landmark Cases: The Supreme Court, in important judgments like A.K. Gopalan v.
State of Madras and Maneka Gandhi v. Union of India, underlined the importance of
fairness, due process, and individual liberty in government action.
 Rise of Welfare State: As government took on new roles—health, education, welfare
—the number of agencies, regulations, and tribunals grew, making administrative law
more detailed and central to day-to-day governance.
 Continuous Change: Administrative law keeps evolving to address challenges like
ensuring transparency, controlling arbitrariness, and adapting to new kinds of
government work.

Red light theory

The red light theory comes from 19th-century liberal ideas that distrusted strong government
power and emphasized protecting individual rights—especially property rights. Championed
by Dicey, it says government must act only within strict legal limits set by Parliament, and
courts have the duty to stop (“red light”) any government action that breaks these rules. The
law is seen as a separate, self-correcting discipline, providing checks and balances on power.
Judicial review is used to control executive overreach and to ensure the rule of law. The
theory prioritizes strict legal control over government, believing that strong courts are the
best protection for citizens’ freedoms.

A major assumption of this theory is that when public bodies or executive authorities exceed
their powers, judicial intervention works as a sanction. This is because bureaucratic and
executive power of the state and its institutions, if unchecked, will threaten the liberty of all
individuals. Thus, judicial control is required in the political framework of a state, The red
light theorists also believe that the judiciary possesses its own standards of independence and
fairness and can be relied upon, in examining the legality of executive action. Hence, it can
be used as an effective mechanism for check and balance in a state system.
These are the various tenets of this theory:

1. Courts are the primary weapon for protection of the citizen and control of the executive.

2. The supremacy of law must prevail over politics.

3. The administrative authorities must be kept under judicial control.

4. For judicial control, the general system of adjudication is appropriate.

5. Public law must be oriented towards strengthening individual liberties.

6. The world of law is apolitical, neutral and independent of the world of government, politics
and administration.

7. Administrative law should aim to curb or control the state.

Therefore, the red light theory emphasizes on law as an instrument for the control of power
and protection of individual liberty, 1001 It advocates for an interventionist standpoint by the
courts to the review of administrative decisions. As expounded by Dicey, this theory looks to
the model of the 'balanced constitution' accommodating the judicial control of executive
power 14 as subject to political control by the Parliament through legislation of strict rules
and to legal control through judicial monitoring by the courts.

Green light theory

As there spread multiple critiques and challenges to the red light theory, an alternative
tradition emanated between the two world wars. This tradition constituted a counter theory to
the red light theory termed as the "green light theory." This theory maintains that the use of
executive power to provide services for the benefit of the community is entirely legitimate.
Thus, the function of the courts in checking executive action is a questionable activity.
However, it does not favor unrestricted or arbitrary action of the state.
The Green light theory, also perceived as functionalist theory, holds a positive outlook
towards the state. It believes that the government is congenial and it cannot be suspected of
committing unlawful actions. The green light theory thus emphasizes on how it is important
for the administrative law to facilitate government action rather than intervening in it through
judicial or political control. It suggests how law can be used as an enabling mechanism so
that it acts as a weapon to the administrative bodies.

Being driven by the utilitarian theory associated with Jeremy Bentham and John Stuart Mill,
this theory asserts that the greatest good for the greatest number in a state can be attained by
encouraging state contribution with lesser control or intervention. It holds that collective
goals of the society can be achieved through the democratic framework. Hence, this theory
does not aim to derogate individual rights or refute the core values and norms of a democratic
society. This alludes towards a proposition that the collective (public) goals can be met by
granting wide powers to the Executive and making it independent of judicial restrictions.

These are the various tenets of this theory:

1. Law is merely a matter of political discussion. Thus, law is not superior to administration
or cannot prevail over administration.

2. Public administration is not a necessary evil but a good element of the state.

3. Administrative law should not only focus towards prohibiting negative practices of the
government. It should also work on facilitating the administration and sound administrative
practices.
4. For encouraging the administration, adjudication based on legal rules is not the sole
appropriate idea.
5. There can be other alternatives to courts.

Therefore, the main concern of green light theory is to reduce the influence of courts over
administration because the courts with their legal values are considered as a hurdle to
administrative progress. The green light prefers democratic form of accountability. Based on
these assumptions, green light theorists assent in facilitating the administration through
prevention of any judicial or legal control over executive actions.
RULE OF LAW

Dicey’s Concept of Rule of Law

It would be appropriate to discuss the views of Dicey, as he is known to be the main exponent
of the concept of rule of law. However the origin of his doctrine was attributed to Sir Edward
Coke. He introduced for the first time that, ‘King is under God and the Law.’ The firm base
of rule of law owes its exposition to Albert Venn Dicey. Dicey, in his book Law and
Constitution in the year 1885 further developed this concept given by Coke. According to
Dicey’s theory, rule of law has three pillars based on the concept that “a government should
be based on principles of law and not of men”, these are-
• Supremacy of Law;
• Equality before the Law; and
• Predominance of Legal spirit.

[Link] of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law rules over all
people including the persons administering the law. According to Dicey the absolute
supremacy of the law as opposed to the arbitrary power of the government is what constitutes
the rule of law. In other words a man should only be punished for the distinct breach of law,
and not for anything else. The person cannot be punished by the government merely by its
own fiat but only according to the established law.
Further, Dicey asserted that discretion has no place where there is supremacy of law.
According to him discretion is a link to arbitrariness. Dicey says that wherever there is
discretion, there is room for arbitrariness and discretionary authority on the part of the
government to jeopardize the legal freedom of the people.

2. Equality before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before Law. In
other words, every man irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court. According to him special law
and special courts is a threat to the principles of equality. Therefore he is of the view that
there should be the same set of laws for all the people and should be adjudicated by the same
civil courts.
3. Predominance of the legal spirit
The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit. According
to Dicey, for the prevalence of the rule of law there should be an enforcing authority and that
authority he found in the courts. He believed that the courts are the enforcer of the rule of law
and hence it should be free from impartiality and external influence. Independence of the
judiciary is therefore an important pillar for the existence of rule of law. He asserted that the
courts of law and not the written constitution are the ultimate protector of an individual’s
fundamentals.
Dicey’s theory has been criticised by many from various angles but the basic tenet expressed
by him is that power is derived from, and is to be exercised according to law. In substance,
Dicey’s emphasis, on the whole, in his enunciation of rule of law is on the absence of
arbitrary power, and discretionary power, equality before law, and legal protection to basic
human rights and these ideals remain relevant and significant in every democratic country
even today.

Meanings

According to Plato the meaning of rule of law is that it is supreme in nature and nobody is
above the law.
• According to Aristotle has written that law should be the final sovereign of the state.
• According to Sir Edward Coke “Rule of Law” means the absence of arbitrary power on
the
part of Government.
• According to Albert Venn Dicey rule of law first meaning is “No man is punishable
except
for a Distinct breach of Law” established in the ordinary legal manner before the ordinary
court.

Exceptions to Rule of Law

India, dicey’s concept of rule of law cannot be said to be followed in strict sense, there are
certain exceptions provided under the Indian Constitution and other laws. For example:

 Existence of wide discretionary power to the executive

  Immunities and privileges

Rule of law and Indian constitution

Under the Indian constitution the rule of law is incorporated in many of its provisions. For
example the object of achieving equality, liberty and justice are reflected in the Preamble to
the Indian constitution. Article 14 guarantees right to equality before law and equal protection
of law. It states that no one shall be denied the equality before law and the equal protection of
the law by the state.

The direct connotation of these words provided under Article 14 is that the law is supreme
and there is no scope of arbitrariness as everybody is governed by the rule of law. Law treats
everybodyequally without any biases, which is the basic requirement of Rule of Law. In the
case of Maneka Gandhi v. Union of India the Supreme court in clear words observed that
Article 14 strikes at arbitrariness in state actions and ensures fairness and equality in
treatment.

Rule of law which is the basic feature of the Indian Constitution excludes arbitrariness.
Where there is arbitrariness there is denial of Rule of Law. Art 15, 16, 23 further
strengthened the ideal of equality by the incorporation of protective discrimination as a
means of ensuring equality amongst equals.

Indian Case Laws

As mentioned earlier, rule of law is not expressly provided under the Indian Constitution but
it has
been assertively pronounced as the essential part of the Constitution by the Supreme Court
through
several judgements. Some of them are as under:

1. A.K Gopalan Vs State

Also known as the Habeas Corpus case, the order of detention passed during emergency was
challenged in this case on the grounds that such order is violative of the principles of rule of
law which is the basic feature of the Indian Constitution. The issue that was before the
Supreme Court to decide was whether there is any rule of law in India apart from Article 21
of the Constitution. The majority bench in the case decided the matter in the negative while
Justice khanna gave a dissenting
Judgement: He observed that the Rule of Law is accepted in all civilised society and is
considered as a symbol of society being free. He further observed that Rule of Law is the
only means of archiving the balance between individual liberty and public order. Hence he
was of the opinion that even if there was no such Article like Article 21 in the Indian
Constitution the state has no power to deprive a person of his life and liberty without the
authority of law.

2. A.K Kraipak V Union of India

Supreme Court on the question whether the principle of natural justice can be followed in
administrative function held that every instrumentalities of the state is bound by the doctrine
of rule of law and is charged with the duty of discharging their functions in a just, fair and
reasonable manner, which forms the basic principle of Rule of Law without which the
concept of Rule of Law has no validity. The rule of law is applicable to the entire field of the
administration as every organ of the
state is regulated by the rule of law.

3. Indra Nehru Gandhi V Raj Narayan

In this case the 39th amendment to the Constitution was challenged which has placed the
election of President, Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law. Holding the amendment as unconstitutional chief justice
Ray found the amendment as violative of the basic structure of the Constitution i.e., Rule of
Law. Rule of Law being anti thesis to arbitrariness does not empower the parliament to pass a
retrospective law validating an invalid election. Such exercise of power is opposed to the
basic principles of Rule of Law.

4. Bachan Singh v. state of Punjab Singh

This a landmark judgement on death penalty. The question whether death penalty can be
imposed under section 302 of IPC was discussed in this case. While the majority of the
judges held that the death penalty can be imposed under rarerest of the rare situation, justice
Bhagwati dissented with the majority opinion and said said that imposition of the death
penalty under Section 302 of IPC is ultra vires and void as it violates Articles 14 and 21 of
the Constitution.
Justice Bhagwati has emphasized that rule of law denies any room for arbitrariness and
unreasonableness. To ensure this, he has suggested that the power of the parliament to make
law should not be unfettered and the excesses of executive and legislative power should be
brought under the check by the independent judiciary so that the rights of the citizen can be
protected.

5. Sambamurthy v. state of Andhra Pradesh

In this case the Supreme Court upheld the principles of rule of law as the basic structure of
the Indian Constitution. Clause 5 of Article 371-D was challenged before this court which
provided the government with the power to modify or annul the administrative tribunal’s
order. Chief Justice Bhagwati in this case held clause 5 of Article 371-D as unconstitutional
on the basis of doctrine of basic structure. He held that clause 5 is contrary to the principle of
rule of law which is the basic structure of the Constitution and is thus unconstitutional.
Judicial review which is one of the tenets of rule of law is provided to the courts under the
constitution to ensure that the law is observed and is complied with by the executive and
other authorities and such power of judicial review cannot be taken away from the court. Any
such attempt would be against the Rule of law and thus ultra vires.

6. Yusuf Khan v. Manohar Joshi

The SC laid down that the constitution places a duty over the state to maintain and preserve
law and order and to see that no act violence overpasses the mandate provided by the rule of
law. Hence, it is quite evident that the concept of rule of law is gaining importance and
attention and judicial efforts are made to make it stronger.

Modern Concept of Rule of Law

The modern concept of the Rule of law of law is now so greatly developed that it provides an
ideal setup for any government to achieve. The concept was developed by the International
Commission of Jurist, known as Delhi Declaration 1959, which was later confirmed at Lagos
in 1961. According to this formulation, the dignity of man as an individual is upheld. It
implies that the rule of law should be so applied as to create conditions in which the dignity
of an individual should be given priority. The dignity of an individual doesn’t include only
the recognition of civil and political rights but also social, economical educational cultural
and developmental rights. In Short for the proper incorporation of the Rule of law, Human
Rights mechanism should be ensured. Particularly in the content of third world countries like
India, Human Rights mechanism is utmost necessary.

Moderating the Dicey’s meaning in the present day context Prof. Wade has included,
effective control of and proper publicity for delegated legislation under the concept of Rule of
Law, particularly when it imposes penalties that should as far as practicable be defined; every
man should be responsible to, the ordinary laws whether he be a private citizen are public
official, the private man’s right should be determined by impartial and independent tribunals
and fundamental private rights are safeguards by ordinary laws of England.

Separation of Powers & Relationship with Administrative Law

Separation of powers, these three powers and functions of the Government in a free
democracy must be kept separate and exercised by separate organs of the Government.

other words:
i) The legislature cannot exercise the
powers of the Executive or Judiciary;
ii) The executive cannot exercise the powers
of the Legislature or Judiciary; and
iii) The judiciary cannot exercise the powers
of the Legislature or Executive.

The State Practice can be explained with reference to its position in America (U.S.A),
England (U.K) and India.

Position in America (U.S.A)

The Doctrine of Separation of Powers has been accepted and strictly adopted by the
constitution of U.S.A. In America, the legislative powers are vested in the Congress (Article
1), the Executive Powers in the President (Article 2) and the Judicial Powers in the Supreme
Court and its subordinate Courts (Article 3).

In America, there is a system of 'Checks' and Balances' to see that one organ should not
encroach upon the powers of the other organ. However, in view of the development of
Administrative Law and expansion of the Government Machinery, strict compliance to this
doctrine is impracticable (not possible). Therefore, the doctrine of Separation of Powers has
been relaxed in certain cases. For instance, the President being the Executive Head
encroaches (intervenes) upon the legislative power, while giving assent to Bills. Similarly,
the Congress being the legislative organ, controls the executive by the power of impeachment
of the President (Executive Head). It (the Congress) also controls the judiciary in
appointment and impeachment of the judges. Likewise, the Judiciary, by exercising the
power of Judicial Review over legislations, controls the legislature.

Position in England (U.K)

The Theory of Separation of Powers is not followed strictly in England. In U.K. there is
complete confusion of the executive and legislative powers. The legislation of Great Britain-
enjoys judicial powers as well. The House of Lords, the upper house of legislature is the
highest court of appeal in Great Britain. The Cabinet through the King can dissolve the House
of Commons. Cabinet through the King introduces the Bill in parliament. Certain Bills can
only be introduced by cabinet through the
King. It is the cabinet, which formulates ordinances through the King. However, these three
powers are vested in different organs. But, one organ controls the powers of the others. E.g.:
The House of Lords, being a legislative body exercises Judicial Functions also.

Position in India
There is no provision in the Indian Constitution to adopt this doctrine. Article 50 of the
Indian Constitution speaks about the Separation of Powers. In India, the legislation empowers
are vested in the Parliament, Executive Powers in the President and Judicial Powers in the
Supreme Court, High Courts and the Subordinate Courts. The provisions of the constitution
reveal that there are many deviations from the application of this doctrine since one organ
encroach upon the other. For instance, Parliament exercises judicial powers by punishing a
person for breach of privilege. It also controls the judiciary by exercising the power of
impeachment of Judges. Similarly, the Judiciary by reviewing legislations controls the
Parliament. As such, the Executive (President) is vested with law making (delegated
legislation) and judicial functions (Quasi Judicial) and also controls the appointment of
judges. view of various deviations stated above, the doctrine of Separation of Powers is not
fully accepted in the Indian Constitution.
In Indira Nehru Gandhi vs. Raj Narain. The Supreme Court through A. N. Ray, CJ
enunciated that there is a separation of powers in Indian Constitution in abroad sense only,
not in a rigid sense (as in the case of American or Australian Constitution).

The relationship between administrative law and the constitutional law

Both the constitutional and administrative law is a part of the public law in the modern State.
It is logically impossible to distinguish between administrative law from constitutional law
and all attempts to do so are artificial. Till recently, the subject of administrative law was
dealt with & discussed in the books of constitutional law and no separate & independent
treatment was given to it. Many definitions of administrative law, was included in
constitutional law. According to Holland, the constitutional law describes the various organs
of the government at rest while administrative law describes them in motion.

On one hand administrative law deals with the organization, function, powers and duties of
administrative authorities while constitutional law deals with the general principles relating to
the organization and powers of the various organs of the state and their mutual relationships
and relationship of these organs with the individuals.

In other words constitutional law deals with fundamental while administrative law deals with
details. It may also be pointed out that the constitutional law deals with the rights and
administrative law lays emphasis on public need. The countries which have written
constitutional law likewise India, the difference between constitutional law and
administrative law is not as nuclear as in England.

Constitutional law is the most important source of administrative law in India. It is the origin
and soul of administrative law. In other words, we can say that constitutional law is the
mother of administrative law. So, without a constitution, administrative law cannot perform
its functions and work properly because it totally depends on the soul of our country’s
constitutional law.

In the Rustom Cavasjee Cooper v. Union Of India (Bank Nationalisation case) {1}, the
Hon’ble Supreme Court held that: “If an ordinance is made on collateral grounds then it can
be challenged before the Supreme Court”. Later on S.R. Bommai v. Union of India, {2} the
Supreme Court has held that proclamation of emergency on ground of failure of
constitutional machinery under Article 356 is subject to judicial review. Accordingly,
Presidential Rule in certain states was held to be unconstitutional.

Thus, in India the administrative action can be tested on the following points:

The action must have been taken in accordance with the rules and regulations.
The rules and regulations should be in accordance with the relevant statute.
The action, the rules, regulations must in accordance with the provisions of the constitution.
If the constitution is amended, the amendment of the constitution should be in accordance or
conformity with the basic structure of the constitution.

Role in Age of Privatization

In the age of privatization, the role of administrative law is to ensure accountability,

transparency, and continued protection of public interests when state functions and services
are shifted to private entities.

 Privatization is the transfer of ownership, management, or control from the public

(government) sector to private hands.
 Administrative law principles apply to privatized services to guarantee oversight, fair
treatment, and legal remedies despite the reduced direct government involvement.

Role of Administrative Law

 The state retains regulatory control over privatized entities, ensuring service
continuity, accessibility, and quality via licensing, concessions, and contracts.
 Courts address due process, sovereign immunity, and non-delegation doctrine issues
when adjudicating disputes arising from privatized administrative actions.
 Administrative law ensures privatized agencies adhere to principles of transparency,
public participation, and legal accountability for actions affecting citizens.

Functions and Issues

  Regulatory supervision over price, service quality, and monopoly prevention remains
with the administrative authorities.
 Franchise and concession contracts create special relationships between private
operators and the state, blending public obligations with private entrepreneurship.
 Non-delegation and democracy-deficit concerns require continued application and
sometimes expansion of administrative law principles as traditional boundaries
between public and private spheres blur.

Functions of Administrative law

Administrative law serves fundamental functions such as guiding administrative agencies in

rule-making, enforcement, adjudication, protecting individual rights, ensuring accountability,
and establishing procedures for administrative decision-making.

Core Functions:

Rule-making (Legislative Function): Administrative law authorizes agencies to formulate

regulations and policies under powers delegated by legislation.

Adjudication (Judicial Function): Agencies resolve disputes and enforce rules through formal
and informal adjudicatory processes.

Enforcement: Ensures compliance with rules and regulations by supervising or sanctioning

individuals and entities as required.

Control of Power: Regulates the scope and limits of administrative authority to prevent abuse
and uphold fairness and transparency.

Remedies and Redress: Provides mechanisms for individuals to challenge administrative

actions and seek redress through tribunals or specialized courts.
A.D.M. Jabalpur v. Shivakant Shukla (1976) AIR 1207, (1976) 2 SCC 521

Facts

On 25th June 1975, the Emergency was proclaimed by the President under Article 352.

The Government, by invoking Article 359(1), suspended the right of persons to approach
courts for enforcement of Articles 14, 21, and 22.

Several persons, including political leaders, were detained without being informed of the
grounds, under the Maintenance of Internal Security Act, 1971 (MISA).

Detainees challenged their detention in various High Courts by filing writ petitions of Habeas
Corpus, arguing violation of their right to personal liberty under Article 21.

High Courts generally upheld the maintainability of the petitions, rejecting the government’s
stand.

Appeals were filed before the Supreme Court by the Union of India and State Governments
(ADM Jabalpur representing Madhya Pradesh).

Issue

Whether, during a Proclamation of Emergency when Article 21 is suspended under Article

359(1), a person has any right to approach a High Court under Article 226 for issuance of a
writ of Habeas Corpus challenging unlawful detention?

In other words: Does the “Rule of Law” survive independently of Article 21 during
emergency?

Cause of Action

The detentions under MISA without disclosure of grounds, and subsequent rejection of writs
by executive authorities, caused detainees to seek judicial remedy.

Direct conflict arose between the executive’s emergency powers and the judiciary’s power of
review via writ jurisdiction.
Judgment

By a majority of 4:1 (Ray C.J., Beg, Chandrachud, and Bhagwati JJ. in majority; Justice H.R.
Khanna dissenting):

Held that during Emergency, no person has locus standi to move any writ petition under
Article 226 for Habeas Corpus challenging detention.

Majority view: The right to personal liberty exists only through Article 21. If Article 21 is
suspended, liberty cannot be enforced through courts. There is no independent “Rule of Law”
outside the Constitution.

Dissent (Khanna J.): Even in the absence of Article 21, the State cannot deprive a person of
life or liberty without the authority of law. Rule of Law is not fully suspended during
emergency, and writ petitions should remain available.

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1

Facts

 In the 1971 General Elections, Indira Gandhi contested from Rae Bareli, Uttar
Pradesh, against Raj Narain.
 Indira Gandhi won, and her party (Indian National Congress) secured a massive
majority in Parliament.
 Raj Narain challenged her election in the Allahabad High Court, alleging electoral
malpractices such as misuse of government machinery and bribery.
 On 12 June 1975, the High Court held Indira Gandhi guilty of corrupt practices under
the Representation of the People Act, 1951, declared her election null and void, and
disqualified her from contesting elections for six years.
 Indira Gandhi appealed to the Supreme Court, but before the matter was finally
decided, she advised the President to declare Emergency (25 June 1975) under Article
352.
 To nullify the High Court’s decision, Parliament passed the 39th Constitutional
Amendment, 1975, inserting Article 329-A(4), which barred judicial review of
 elections of the Prime Minister and the Speaker and reserved such matters exclusively
for Parliament.

Issues

1. Whether the 39th Constitutional Amendment Act, 1975, particularly Article 329-A(4),
was constitutionally valid?
2. Whether the exclusion of judicial review of the Prime Minister’s election violated the
Basic Structure of the Constitution, especially democracy, equality, rule of law, and
separation of powers?

Cause of Action

 The cause of action arose when Indira Gandhi’s election was set aside by the
Allahabad High Court, and to bypass this judicial decision, the 39th Constitutional
Amendment was enacted, directly curtailing the power of judicial review.
 Raj Narain and others challenged this amendment before the Supreme Court, invoking
the doctrine of Basic Structure propounded in Kesavananda Bharati v. State of Kerala
(1973).

Judgment

 The Supreme Court (by a majority) struck down Clause (4) of Article 329-A as
unconstitutional.
 It held that the amendment violated the Basic Structure of the Constitution because:
o Free and fair elections are part of democracy, a basic feature.
o Judicial review is part of the basic structure and cannot be curtailed, even
through constitutional amendments.
o Rule of law and separation of powers had been breached, as Parliament
usurped judicial functions by making the election of the Prime Minister
immune from judicial scrutiny.
 Justice Y.V. Chandrachud (as he then was) emphasized that the amendment created
inequality (violative of Article 14) by treating elections of the Prime Minister and
Speaker differently from other candidates and gave Parliament judicial powers.
  The Court reaffirmed Kesavananda Bharati and declared that constitutional
amendments are subject to Basic Structure review.

Golak Nath vs state of Punjab

I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643, which overturned Sajjan Singh v.
State of Rajasthan (1965) and placed a restriction on Parliament’s power to amend
Fundamental Rights.

Facts

 Parliament passed the Seventeenth Amendment Act, 1964, which placed certain land
reform laws (including Punjab Security of Land Tenures Act, 1953 and Mysore Land
Reforms Act, 1962 as amended in 1965) into the Ninth Schedule, thereby insulating
them from judicial review.
 The petitioners, led by I.C. Golaknath, challenged the validity of the amendment by
way of a writ petition under Article 32, arguing that it curtailed their Fundamental
Rights to property (Article 19(1)(f), 31).
 Earlier in Sajjan Singh v. State of Rajasthan (1965), the Supreme Court had upheld
Parliament’s power to amend Fundamental Rights under Article 368.
 Petitioners sought reconsideration of this position.

Issues

1. Does the Parliament have the power to amend Fundamental Rights (Part III) of the
Constitution?
2. Whether the Constitution (Seventeenth Amendment) Act, 1964, was valid to the
extent it infringed upon citizens’ Fundamental Rights?

Cause of Action

 The cause of action arose from the alleged violation of petitioners’ rights due to land
reform legislation placed in the Ninth Schedule through the 17th Amendment, which
 sought to immunize such laws from being struck down as violative of Fundamental
Rights.
 Petitioners contended that Parliament exceeded its amending power by curtailing
Fundamental Rights guaranteed under Part III.

Judgment

 By a majority of 6:5, the Supreme Court in Golaknath held that:

o Parliament does not have the power to amend Fundamental Rights under Part
III.
o Article 368 provides only the procedure for amendment, not substantive power
to amend. Amending laws are enacted under Articles 245, 246, and 248.
o Such amending laws are subject to Article 13(2), which prohibits the State
from making any law abridging or taking away Fundamental Rights. Hence,
amendments affecting Fundamental Rights would be void.
o Invoking the doctrine of prospective overruling, the Court held previous
constitutional amendments valid but ruled that henceforth Parliament would
not have power to amend Fundamental Rights.

Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591; AIR 1980 SC 1789

Facts

 Minerva Mills Ltd., a textile company, was declared a “sick industry” under a report
submitted by a government-appointed committee.
 Using Section 18A of the Industries (Development and Regulation) Act, 1951, the
Central Government assumed control of the management.
 Later, Parliament enacted the Sick Textile Undertakings (Nationalisation) Act, 1974,
allowing nationalisation of sick mills.
 The company challenged this takeover as unconstitutional, leading to the broader
challenge against the Constitution (Forty-Second Amendment) Act, 1976, which had
dramatically expanded Parliament’s amending power.
 The 42nd Amendment inserted Clauses (4) and (5) into Article 368, which:
o Gave unlimited amending power to Parliament without restrictions.
o Barred judicial review of constitutional amendments.
Issues

1. Whether Clauses (4) and (5) of Article 368, inserted by the 42nd Amendment, were
constitutional?
2. Whether Directive Principles of State Policy (DPSPs) could override Fundamental
Rights, especially under the expanded scheme of the 42nd Amendment?
3. Whether removing judicial review of amendments violated the Basic Structure of the
Constitution?

Cause of Action

 The cause of action arose when the government took over Minerva Mills under the
Sick Textile Undertakings Act aided by the 42nd Amendment.
 In challenging this, the petitioners raised the larger constitutional question: whether
the government could enlarge its amending powers and exclude the courts from
reviewing amendments.

Judgment

 By a majority of 4:1, the Supreme Court struck down Sections 4 and 55 of the 42nd
Amendment Act, 1976, which had inserted Clauses (4) and (5) into Article 368.
 Clause (4) of Article 368: Declared unconstitutional because it excluded judicial
review of amendments. Judicial review is part of the Basic Structure and essential to
maintaining the balance of power between Legislature, Executive, and Judiciary.
 Clause (5) of Article 368: Declared unconstitutional because it conferred limitless
amending power on Parliament, effectively making Parliament sovereign—against the
notion of limited government under the Constitution.
 The Court emphasized that both Fundamental Rights and Directive Principles are
essential, and a harmony and balance must be struck between them. Neither can
override the other.
 Reaffirmed the Basic Structure Doctrine laid down in Kesavananda Bharati v. State
of Kerala (1973): The amending power of Parliament under Article 368 cannot be
absolute, and any amendment destroying the Basic Structure will be void.
MODULE 2:

1. Meaning and Nature of Delegated Legislation

Delegated legislation is law made by authorities other than the legislature but under the
legislature’s authority, usually through powers given by an Act of Parliament or State
Assembly. It allows the legislature to set out broad principles and policies while leaving
detailed rules, technical procedures, or local variations to be formulated by subordinate
bodies such as ministries, government officers, regulatory councils, or local governing
bodies. This system is vital for efficient governance, as legislatures cannot handle every
intricate detail and need flexibility to respond rapidly to changing circumstances and
emergencies.

This delegated legislation may take the form of rules, regulations, orders, notifications, or by-
laws made by these bodies in line with the enabling Act. It also helps bring specialised
expertise to lawmaking, saves legislative time, and enables laws to be adapted to emerging
needs without full legislative debate every time. In essence, it balances democratic oversight
with practical administrative convenience by allowing detailed laws to be made within the
framework set by the elected legislature.

2. Removal of Difficulties and Henry VIII Clauses

A removal of difficulties clause gives the executive limited power to make minor adaptations
or modifications to an Act, allowing it to resolve practical issues in implementing the law
without waiting for fresh legislation. The purpose is to deal with unforeseen problems so long
as the core policy and substantive provisions of the law remain untouched and any changes
are consistent with the Act.
Problems arise when such clauses are drafted too broadly, allowing the executive even to
amend or override core provisions these are termed Henry VIII clauses, which Indian courts
generally reject as unconstitutional due to excessive delegation. The Supreme Court upholds
narrow clauses used only for genuine implementation issues, but invalidates any that alter
legislative policy.

Jalan Trading Co. v Union of India (1966)

Facts:
The Payment of Bonus Act contained a Henry VIII clause that allowed the executive to
amend essential provisions of the Act through notifications without legislative approval.

Cause of Action:

Jalan Trading Co. challenged the validity of this clause, arguing it amounted to excessive
delegation by allowing the executive to override primary legislation without clear limits or
standards.

Issues:

 Whether the legislature could delegate power to the executive to amend or override
substantive provisions of the parent Act.
 Whether such broad delegation was constitutionally valid.

Judgment:
The Supreme Court struck down the provision and held that the legislature cannot delegate
powers enabling the executive to amend primary legislation without clear guiding principles.

Ratio Decidendi:

Delegation must not permit the executive to amend or repeal Acts of Parliament; such
delegation is excessive and unconstitutional.

Quote:
“The legislature cannot abdicate its essential legislative functions by giving unqualified
powers to the executive.”
Court / Year:

Supreme Court of India, 1966

Patna University v Amita Tiwari (1974)

Facts:
Under the State Sales Tax Act, the government was authorized to grant tax exemptions by
notification without prescribed guidelines on when or how exemptions should be granted,
leading to arbitrary executive discretion.

Cause of Action:

The validity of this provision was challenged on the ground that it conferred excessive
legislative power on the executive without laying down any policy or standards.

Issues:

 Whether the legislature could authorize the executive to grant tax exemptions without
guiding principles.
 Whether the delegation violated the constitutional principle of separation of powers.

Judgment:
The Supreme Court held the provision unconstitutional as it gave uncontrolled discretion to
the executive without legislative policy or standards.

Ratio Decidendi:

Delegated legislation must be based on clear legislative policy and standards; naked
discretion in delegation amounts to abdication of legislative function.
Quote:
“Delegation of power without laying down any principle or policy is nothing but abdication
of legislative function.”

Court / Year:

Supreme Court of India, 1974 (Post-Constitution)

Types and Examples of Delegated Legislation

Administrative authorities create:

 Rules
 Regulations
 Schemes
 Orders
 Enactments
 Circulars
 Notifications
 Notices/administrative notices.

Major enabling statutes (“parent acts”) in India include:

 Payment of Wages Act

 Essential Commodities Act
 Payment of Bonus Act
 Income Tax Act
 Defence of India Act.

These statutes confer specific powers to the executive or relevant administrative agency to
make detailed rules and regulations, enabling efficient governance.

Reasons for the Growth of Administrative Law

Administrative law has grown due to several interrelated factors:

  Change in State Philosophy: Shift from laissez-faire to welfare state, expanding
functions of government (healthcare, education, etc.).
 Legislative Inadequacy: The legislature cannot address detailed or technical aspects
and is overburdened, requiring delegation for practical efficiency.
 Judicial Inadequacy: Courts are slow, expensive, complex, and cannot resolve all
administrative issues, leading to specialized tribunals and authorities.
 Experimentation/Expertise: Administrative rules can be rapidly amended to meet
changing needs, relying on technical experts.

Forms of Delegated Legislation (Common Classification)

Delegated legislation may be classified broadly into four forms:

 Statutory Instruments (rules, regulations, orders)

 By-laws (often made by local authorities)
 Schemes (frameworks made under statutes)
 Administrative Directions/Circulars/Notices

Delegated Legislation in England

In England, delegated (secondary) legislation is commonly made through statutory

instruments such as rules, orders, and regulations under parent Acts. It is used to provide
technical detail, accommodate changes, respond to emergencies, and enact public service
rates quickly. Controls include parliamentary scrutiny and judicial review against ultra vires,
although critics argue it receives lesser parliamentary attention.

Delegated Legislation in USA

In the USA, Congress delegates rule-making powers to administrative agencies which

implement complex policy through regulations and rules. Common forms include
regulations/statutory rules, by-laws, and court procedural rules. Agencies’ powers are subject
to the non-delegation doctrine, requiring Congress to lay down an “intelligible principle” for
guidance.

Landmark Case: Panama Refining Co. v. Ryan (1935)

In Panama Refining Co. v. Ryan, the US Supreme Court reviewed whether Congress’s
delegation of power under the National Industrial Recovery Act (NRA) was constitutional.
Congress had authorized the President to prohibit petroleum transportation exceeding state
limits, but the Act failed to provide meaningful standards for exercising this power. The
Supreme Court ruled this unconstitutional, affirming the requirement for legislative standards
or guiding principles in any delegation, thereby strengthening judicial oversight.

Excessive Delegation

Excessive delegation occurs when the legislature transfers too much of its law-making power
to the executive or subordinate authorities without providing clear principles or limits. This
doctrine is important in administrative law to prevent the arbitrary or unchecked transfer of
legislative authority, which compromises democratic accountability and the separation of
powers. The legislature must retain essential legislative functions like determining policy and
enacting laws, as excessive delegation dilutes these fundamental duties. Indian courts view
such delegation as unconstitutional if it surrenders core legislative powers or grants unlimited
discretion to the executive.

Principles to Apply to Check Excessive Delegation

To ensure delegation is not excessive, the legislature must:

 Retain essential legislative functions such as setting policy and legal standards.
 Provide clear and intelligible principles, policies, or guidelines to direct the exercise
of delegated powers.
 Delegate only minor, technical, or administrative details for effective governance.
 Maintain accountability by ensuring that the delegated authority operates within the
framework defined by the legislature.
These principles safeguard the balance between legislative authority and
administrative efficiency, ensuring delegation does not become abdication.

Test in the Challenge of Excessive Delegation

Courts apply two main tests when a statute is challenged on grounds of excessive delegation:
 1. Whether the delegation involves surrendering essential legislative functions such as
policymaking or law enactment.
2. Whether the legislature has clearly articulated the policy and principles to guide the
delegated authority.
If essential legislative duties are delegated or if the delegation lacks clear guiding
standards, the court will find excessive delegation and may strike down the statute.
Conversely, delegation to detail-oriented administrative implementation within clear
legislative guidelines is permissible.

Permissible Delegation

Permissible delegation occurs when the legislature defines the broad policy framework and
principles, leaving the subordinate authority to fill in the details. Such delegation relates to
technical, procedural, or administrative matters and is necessary due to the legislature’s
practical limitations. It facilitates flexibility, expertise, and quick response to changing
conditions, while preserving legislative control and oversight.

Non-Permissible Delegation

Non-permissible delegation happens when the legislature abdicates its essential legislative
functions, either by failing to specify guiding principles or by granting unrestricted
discretionary powers to the executive. This may include delegating policymaking, rule-
making without standards, or allowing amendments to primary legislation by subordinate
bodies. Such delegation violates constitutional principles of separation of powers, democratic
accountability, and legislative supremacy, and is usually declared unconstitutional.

5. Edward Mills Co. Ltd. v. State of Ajmer (1955, Supreme Court – Post-
Constitution)

Facts

The Industrial Disputes Act, 1947, was extended to Ajmer by the State Government with
certain modifications. The petitioner company argued that the power given to the
Government to apply the Act with modifications was unconstitutional, as it conferred
unlimited power to alter the provisions of the Act.
Cause of Action

Edward Mills challenged the validity of the State Government’s notification applying the
Act to Ajmer with modifications, claiming that the modification power was too wide and
thus amounted to excessive delegation.

Issues

Could the legislature empower the Government to extend the Act to a new territory with
modifications?

Did such power constitute excessive delegation?

Judgment

The Supreme Court upheld the delegation. It held that the power of modification was
confined to adapting the Act to local conditions and did not permit changing the essential
legislative policy. Thus, the delegation was within permissible limits.

Ratio Decidendi

The legislature can authorise the executive to adapt laws to suit local conditions, provided
such modifications do not alter the essential policy of the parent Act.

Quote

“Power to modify is only to adapt; it does not include power to change essential features
of the law.”

Court / Year

Supreme Court of India, 1955 (Post-Constitution).

Hamdard Dawakhana v. Union of India (1960, Supreme Court – Post-Constitution)

Facts
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 prohibited
advertisements of remedies for certain diseases and empowered the Government to
specify more diseases by notification. Hamdard Dawakhana, a manufacturer, challenged
this delegation as unguided and uncontrolled.

Cause of Action

The company argued that Parliament had given blanket discretion to the executive
without any policy or standards, amounting to excessive delegation.

Issues

Was the delegation to the executive to specify diseases valid?

Did the Act lay down sufficient policy to guide the executive?

Judgment

The Supreme Court struck down the delegation. It held that there was no clear legislative
policy or principle to guide the Government in selecting diseases. The Act gave
uncontrolled discretion, which was unconstitutional.

Ratio Decidendi

Delegated legislation must operate within a framework of guidance and policy. When the
parent Act gives blanket discretion, it amounts to excessive delegation and is void.

Quote

“The legislature must lay down principles and standards; uncontrolled discretion to the
executive is invalid.”

Court / Year

Supreme Court of India, 1960 (Post-Constitution).

Gwalior Rayon Silk Manufacturing Co. Ltd. v. Assistant Commissioner of Sales Tax
(1974, Supreme Court – Post-Constitution)
Facts

Gwalior Rayon was a company engaged in the manufacture and sale of rayon and allied
products. The relevant State Sales Tax Act authorised the Government to grant
exemptions from sales tax by issuing notifications. However, the Act did not prescribe
clear guidelines for when, how, or why such exemptions could be given. The company
challenged the constitutional validity of this provision, claiming it gave unguided and
uncontrolled discretion to the executive.

Cause of Action

The challenge was that the provision conferred essential legislative power on the
executive without laying down policy or standards. This amounted to excessive
delegation, making the provision ultra vires.

Issues

Could the legislature authorise the executive to grant tax exemptions without any guiding
principles?

Did this delegation violate the constitutional separation of powers?

Judgment

The Supreme Court struck down the provision. It held that the law did not provide any
guidance for the exercise of power to grant exemptions. The legislature cannot abdicate
its essential function by giving uncontrolled discretion to the executive.

Ratio Decidendi

Delegated legislation must be controlled by legislative policy, standards, or principles.

Where delegation confers naked and arbitrary discretion, it is unconstitutional.

Quote

“Delegation of power without laying down any principle or policy is nothing but
abdication of legislative function.”
Court / Year

Supreme Court of India, 1974 (Post-Constitution).

Avinder Singh v. State of Punjab (1979, Supreme Court – Post-Constitution)

Facts

The Punjab Municipal Act authorised municipalities to impose taxes on professions,

trades, callings, and employments. Avinder Singh, a taxpayer, challenged the Act on the
ground that delegation of taxing power to municipalities was unconstitutional.

Cause of Action

The petitioner argued that taxation is an essential legislative function and cannot be
delegated to subordinate authorities without violating the constitutional principle of
separation of powers.

Issues

Can taxing power be delegated to subordinate authorities like municipalities?

If yes, what are the constitutional limits on such delegation?

Judgment

The Supreme Court upheld the delegation. It ruled that taxation is a legislative function,
but delegation is permissible if the statute lays down:

 the subject of tax,

 the persons liable,
 the maximum rate or limit, and
 the general policy for levy.
 In this case, the Act had provided sufficient guidance.

Ratio Decidendi
Delegation of taxing power is valid when the legislature prescribes the subject, purpose,
and maximum limit, leaving only details to the local authority.

Quote

“Delegation of the power of taxation is permissible provided the legislature lays down the
legislative policy and guidance for its exercise.”

Court / Year

Supreme Court of India, 1979 (Post-Constitution).

1Municipal Corporation of Greater Bombay v. Nagpal Printing Mills (1988,

Supreme Court – Post-Constitution)

Facts

The Municipal Corporation of Greater Bombay imposed charges on industrial units like
Nagpal Printing Mills based not on actual consumption of water but on a minimum
quantity fixed by rule. The company challenged this rule as inconsistent with the parent
Act, which authorised charges only for water supplied and consumed.

Cause of Action

The petitioner argued that the rule went beyond the parent Act’s provisions and created
liabilities not contemplated by the legislature.

Issues

Was the rule inconsistent with the enabling Act?

Can delegated legislation impose obligations beyond what the statute authorises?

Judgment
 The Supreme Court held the rule to be ultra vires the parent Act. Since the Act only
permitted charges for actual consumption, fixing minimum charges irrespective of
consumption was beyond legislative authority.

Ratio Decidendi

Delegated legislation must conform strictly to the parent Act. If it imposes liabilities or
creates powers not authorised, it is void.

Quote

“Delegated legislation cannot be used to create liabilities not authorised by the parent
Act.”

Court / Year

Supreme Court of India, 1988 (Post-Constitution).

Blackpool Corporation v. Locker (1948, King’s Bench, UK – Precedent in English Law)

Facts

Blackpool Corporation passed bye-laws under the authority of a statute regulating street
trading. The bye-laws imposed unreasonable restrictions on trading rights, such as
limiting who could trade and where. Locker, a street trader, challenged the bye-laws as
ultra vires.

Cause of Action

The argument was that the bye-laws were unreasonable and inconsistent with the parent
Act, which did not authorise such sweeping restrictions.

Issues

Were the bye-laws consistent with the powers granted under the statute?

Can bye-laws be struck down for being unreasonable?

 Judgment

The King’s Bench struck down the bye-laws as invalid. It held that even if a local
authority has power to make bye-laws, those bye-laws must be reasonable, consistent
with the parent statute, and not oppressive.

Ratio Decidendi

Bye-laws made under delegated legislation can be struck down by courts if they are
unreasonable, oppressive, or inconsistent with the parent statute.

Quote

“A bye-law which is manifestly unjust, partial, or unreasonable cannot be sustained.”

Court / Year

King’s Bench Division, UK, 1948 (Pre-Constitution precedent, persuasive in India).

Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation (1959,
Supreme Court – Post-Constitution)

Facts

The Andhra Pradesh Government decided to nationalise certain bus transport routes under
the Road Transport Corporations Act, 1950. Objections were invited from private
operators. The Secretary of the Transport Department conducted the hearing of
objections, while the Minister of Transport made the final decision approving the scheme.
Gullapalli Nageswara Rao, a private bus operator, challenged the scheme.

Cause of Action

The petitioners argued that the procedure violated the principles of natural justice
because:

The authority hearing objections (Secretary) was different from the authority deciding
them (Minister).
 The Transport Department itself was the promoter of the scheme, so it acted as both judge
and party.

Issues

Whether the decision-making process violated the rule of audi alteram partem (hear the
other side)?

Whether the scheme was invalid due to institutional bias?

Judgment

The Supreme Court struck down the scheme. It held that natural justice requires that the
authority hearing objections should also be the one deciding them. Moreover, since the
Transport Department was both proposer and decision-maker, the process was biased and
invalid.

Ratio Decidendi

Delegated legislation or executive schemes must conform to the principles of natural

justice. If the authority acts as judge in its own cause or the process involves bias, the
decision is void.

Quote

“He who hears must decide.”

Court / Year

Supreme Court of India, 1959 (Post-Constitution).

3. Conditional Legislation

Conditional legislation occurs when the legislature enacts a law in full but makes its
operation dependent upon the fulfilment of certain conditions or the determination of facts by
the executive. Here, the legislature has not abdicated its power; it has fully exercised it by
making a law. But the executive is authorised to bring the law into effect upon satisfaction of
certain factual or geographical conditions.

For example, Parliament might enact that “this Act shall apply to such areas as the
Government may by notification specify.” Here the law is already complete; only its
territorial application depends on executive notification. Similarly, a law may say it will
come into force “on such date as the Government may appoint.” Such instances are classic
examples of conditional legislation.

The importance of conditional legislation is that it allows flexibility in application, prevents

rigidity, and enables the executive to respond to local circumstances or emergencies without
violating the principle that only Parliament can legislate. Courts in India, England, and the
United States have upheld conditional legislation on the ground that the legislature retains
policy-making power.

1. Queen v. Burah (1878, Privy Council – Pre-Constitution)

Facts

The Governor-General of India in Council passed the Act of 1869, which gave the
Lieutenant-Governor of Bengal the power to extend laws in force in certain territories to the
Khasi and Jaintia Hills. The law itself was already complete — it laid down the offences,
procedure, and punishment. However, its application to the tribal areas depended on the
Lieutenant-Governor issuing a notification. In this case, Burah and Book Singh were tried
and convicted under provisions of this extended law. They argued that the legislature had
unlawfully transferred legislative power to the executive.

Cause of Action

The appellants challenged their conviction by contending that the Governor-General’s law
was invalid because it amounted to the legislature delegating essential law-making power to
the executive. The Lieutenant-Governor, by deciding whether or not to extend the law, was
effectively making legislation.

Issues
 1. Was the Act of 1869 an unconstitutional delegation of legislative power?
2. Was empowering the Lieutenant-Governor to extend laws to the Khasi and Jaintia
Hills valid under the principle of separation of powers?

Judgment

The Privy Council rejected the challenge and upheld the Act. It observed that the Governor-
General’s Council had enacted a complete law. The law defined offences, laid down
punishments, and prescribed procedures. What was left to the Lieutenant-Governor was not
law-making, but simply determining the condition (i.e., the territory where it would apply).
This was not abdication of legislative function, but conditional legislation.

Ratio Decidendi

The legislature does not abdicate its functions when it makes a law complete in itself and
leaves the determination of conditions, such as when or where it should operate, to another
authority. This principle became the foundation of conditional legislation in India.

Quote

“Conditional legislation, where the legislature has determined the law but left the application
to be determined by the executive upon the fulfilment of certain conditions, is valid.”

Court / Year

Privy Council, 1878 (Pre-Constitution).

2. Emperor v. Benoari Lal Sarma (1945, Privy Council – Pre-Constitution)

Facts

During World War II, the Governor-General issued the Special Criminal Courts
Ordinance, 1942. This Ordinance authorised the setting up of special criminal courts to deal
with offences more swiftly. It also allowed provincial governments to declare that the
Ordinance would be in force in their provinces. Benoari Lal was convicted under this system
of special courts and challenged the validity of the Ordinance.

Cause of Action

The challenge was based on the argument that the Ordinance unlawfully delegated legislative
power to provincial governments. The executive was given authority to decide the territorial
and functional scope of the Ordinance.

Issues

1. Was the Ordinance a valid exercise of legislative power?

2. Did it amount to excessive delegation, since provincial governments decided where
and how the law would apply?

Judgment

The Privy Council upheld the Ordinance. It reasoned that the Ordinance itself was complete
it defined offences, punishments, and procedures. The provincial government only decided
whether to bring it into operation in a particular province. This was conditional legislation,
not delegation. However, it warned that if the Ordinance had left essential legislative policy
to the provincial governments, it would have been invalid.

Ratio Decidendi

Delegation is valid if the parent law lays down the legislative policy and standards. The
executive can be authorised to determine facts or conditions for its application, but not to
decide essential policy.

Quote

“It is conditional legislation; the law is complete, and what is left is only the application upon
fulfilment of conditions.”

Court / Year

Privy Council, 1945 (Pre-Constitution).

3. Field v. Clark (1892, U.S. Supreme Court)

Facts

The McKinley Tariff Act, 1890, passed by the U.S. Congress, authorised the President to
suspend certain tariff concessions if he found that foreign countries imposed “unreasonable”
tariffs on American products. Merchants, including Field, challenged this delegation.

Cause of Action

They argued that Congress had unlawfully delegated its exclusive legislative power to the
President by allowing him to decide tariff policy.

Issues

1. Was the delegation to the President unconstitutional?

2. Did it amount to giving the President power to legislate?

Judgment

The U.S. Supreme Court upheld the Act. It clarified that Congress had already made the law
and determined the policy. The President’s role was limited to ascertaining facts (whether
foreign nations imposed unreasonable tariffs) and declaring the event on which Congress’s
will would take effect.

Ratio Decidendi

Delegation is valid when the legislature lays down an intelligible principle and the executive
is tasked only with applying the law by ascertaining facts.

Quote

“The President is the mere agent of the law-making department to ascertain and declare the
event upon which its expressed will is to take effect.”

Court / Year: U.S. Supreme Court, 1892.

4. Sub-Delegation

Sub-delegation arises when the body to whom legislative power is delegated by Parliament
further delegates that power to another authority. The general rule of law is delegatus non
potest delegare a delegate cannot further delegate. This principle rests on the assumption that
the legislature intended to entrust power only to the body it expressly named, not to allow an
indefinite chain of delegation.

However, there are circumstances where sub-delegation is permitted. If the parent statute
expressly authorises further delegation, then the delegate may sub-delegate. Sometimes, even
without express words, the nature of the function may imply a power to sub-delegate — for
example, in cases involving administrative detail where strict personal exercise is not
expected.

The risks of sub-delegation are evident. Each further step in delegation distances law-making
power from democratic accountability. Hence, courts strictly scrutinise sub-delegation and
strike it down if there is no clear authorisation.

5. Safeguards Against Abuse

The growth of delegated legislation demands safeguards to prevent abuse. Courts,

legislatures, and committees have emphasised certain principles:

 Judicial review must always be available; no statute should exclude it.

 Delegated legislation cannot impose taxation unless the parent Act clearly authorises
it.
 Retrospective delegated legislation is impermissible unless expressly allowed.
 Delegation should deal with details, not high-level policy.
 Sub-delegation requires express or necessary authorisation.
 Delegated legislation must not be discriminatory or arbitrary.
 Rules should be promptly published and laid before the legislature.
  The executive should not have the final authority to interpret rules; that remains with
the judiciary.

6. Judicial Control

Judicial control is the primary safeguard against excessive delegation. Courts apply the
doctrine of ultra vires in two forms:

1. Substantive Ultra Vires: Delegated legislation is invalid if it goes beyond the scope
of the parent Act, conflicts with its provisions, or violates constitutional limits such as
Fundamental Rights.
2. Procedural Ultra Vires: Delegated legislation is invalid if it is made without
following the procedures laid down in the parent Act (for example, if consultation,
prior publication, or laying before the legislature is mandatory but ignored).

Other grounds include mala fides (bad faith), arbitrariness, vagueness, retrospective operation
without authority, and violation of natural justice. Through these doctrines, the judiciary
ensures that delegated legislation remains faithful to constitutional and statutory limits

Example

• Essential commodities Act,1955

• first stage of delegation--Section -3 Act empowers the central government to
make rules
• second stage of delegation --Section 5 Act empowered to delegate powers to
their officers, State government and their officers.
• third stage of delegation-power further delegated by the state government to
their officers.

1. Harishankar Bagla v. State of Madhya Pradesh (1954, Supreme Court – Post-

Constitution)

Facts
The Essential Supplies (Temporary Powers) Act, 1946, was enacted to control the
production, supply, and distribution of essential commodities. Under Section 4 of the Act, the
Central Government was empowered to delegate its powers to the State Governments. Acting
under this provision, the Central Government framed the Cotton Control Order, 1948, and
authorised the State of Madhya Pradesh to administer it. Harishankar Bagla, a trader, was
prosecuted for violating the Cotton Control Order. He challenged both the Order and the
delegation of powers as unconstitutional.

Cause of Action

The petitioner argued that the delegation of power to the State Government under Section 4
was excessive and amounted to abdication of legislative power. They claimed that essential
legislative functions had been left to the executive, violating the principle of separation of
powers under the Constitution.

Issues

1. Was Section 4 of the Essential Supplies Act, which authorised sub-delegation of

powers to the States, constitutional?
2. Did this sub-delegation amount to excessive delegation?

Judgment

The Supreme Court upheld the delegation. It held that Parliament had already laid down the
legislative policy — namely, maintaining supply and equitable distribution of essential
commodities. What was left to the Government was only the implementation of that policy.
Since the Act expressly authorised the Central Government to delegate powers to the States,
such delegation was permissible.

Ratio Decidendi

Sub-delegation is valid when the parent statute clearly authorises it. Parliament did not
abdicate its legislative function because it retained the essential legislative policy within the
statute.

Quote
“The legislature cannot abdicate its functions, but it can delegate ancillary powers to carry
out the policy laid down by it.”

Court / Year

Supreme Court of India, 1954 (Post-Constitution).

2. Central Talkies Ltd. v Dwarka Prasad (1961)

Facts:
The case involved the authority of subordinate officers to exercise eviction powers under rent
control laws. The scope of delegation to these officers and whether they could sub-delegate
was questioned.

Cause of Action:

It was challenged whether delegated powers to subordinate officers could be exercised

outside the statutory limits or sub-delegated without express authorization.

Issues:

 Whether subordinate officers had authority to exercise delegated powers within the
statute’s limits.
 Whether unauthorized sub-delegation was valid.

Judgment:
The Supreme Court held that delegated powers must be exercised strictly within statutory
limits, and unauthorized sub-delegation was invalid.

Ratio Decidendi:

Delegated powers are subject to statutory limits and must be exercised by authorized officers
only; unauthorized sub-delegation is ultra vires.
Quote:
“Delegation does not mean abdication; every delegated power must be exercised within
statutory limits.”

Court / Year:

Supreme Court of India, 1961

3. Allingham v Minister of Agriculture and Fisheries (1948)

Facts:
The Minister delegated powers to a committee, which in turn sought to delegate those powers
further to sub-committees without explicit legislative authority.

Cause of Action:

The validity of further delegation (sub-delegation) of powers from the committee to sub-
committees without express authorization was challenged.

Issues:

 Whether a delegated authority can further delegate its powers without explicit
permission.
 Whether such sub-delegation was lawful.

Judgment:
The Court ruled that delegated powers cannot be sub-delegated without express authorization,
applying the principle delegatus non potest delegare.

Ratio Decidendi:

Delegates cannot delegate their powers further unless specifically authorized; unauthorized
sub-delegation is void.

Quote:
“A delegate cannot further delegate his delegated powers without express authorization.”

Court / Year:
English Court, 1948

Judicial Control of Delegated Legislation

In democratic countries, courts have the authority to review delegated legislation to ensure its
validity. Judicial control prevents abuse of delegated powers by examining whether
subordinate legislation complies with legal and constitutional limits. Courts use specific tests
to assess validity—primarily substantive and procedural ultra vires.

A) Substantive Ultra Vires

Substantive ultra vires occurs when delegated legislation exceeds the powers conferred by the
parent Act or is inconsistent with constitutional provisions. This means that the delegated
authority has made rules or laws beyond the scope authorized by the legislature or outside the
constitutional framework. It is a fundamental principle that public authorities cannot act
beyond or outside their legally given powers, and any such act is invalid.

Key Points:

 Delegated legislation must adhere strictly to the authority granted by the parent
statute.
 It must be within the legislature's defined purpose and limits.
 Acts beyond these limits are ultra vires (beyond powers) and void.
 Delegated legislation must act in good faith and be consistent (intra vires) with the
Constitution and parent Act.

Case laws:

Chintamanrao v State of MP

Facts:
The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes)
Act, 1948, was enacted to prohibit the manufacture of bidis in certain villages during
agricultural seasons in Madhya Pradesh to ensure adequate labor availability for farming. The
Deputy Commissioner of Sagar issued orders prohibiting residents of specified villages from
participating in bidi manufacture during these agricultural periods. Petitioners challenged
these orders as violating their fundamental right under Article 19(1)(g) (right to practice any
profession or trade) of the Indian Constitution, claiming the restriction was unreasonable and
arbitrary.

Cause of Action:

The petitioners argued that the prohibition of bidi manufacturing during a specified
agricultural season was an excessive and unreasonable restriction on their right to carry on a
trade or profession, going beyond what was permissible under Article 19(6) which allows
reasonable restrictions.

Issues:

 Whether the restriction (prohibition on bidi manufacturing) imposed by the Act and
enforced by the Deputy Commissioner amounted to a reasonable restriction under
Article 19(6) of the Constitution.
 Whether the orders impeded the fundamental right to carry on trade or business.
 Whether the State could enforce such a blanket ban without alternative measures.

Judgment:
The Supreme Court held the Act’s provisions and the orders issued under it to be
unconstitutional as the restriction was arbitrary, excessive, and disproportionate. The Court
ruled that while the State can impose reasonable restrictions for public interest, a blanket
prohibition on bidi manufacturing was not justified. It also considered the ban on hiring labor
from neighboring villages as further compounding the violation.

Ratio Decidendi:

Restrictions on the right to practice any profession or trade under Article 19(1)(g) must be
reasonable and proportionate. Excessive and blanket bans which deny livelihood without less
restrictive alternatives constitute a violation of fundamental rights and are unconstitutional.

Quote:
“Any law that imposes a restriction on trade or profession must not be arbitrary or excessive,
but should be a reasonable restriction justified by the public good.”
Court / Year: Supreme Court of India, 1951

Municipal Corporation of Greater Bombay v Nagpal Printing Mills

Facts:
The appellant, Nagpal Printing Mills, operated a printing and dyeing business in Bombay.
The Municipal Corporation of Greater Bombay (MCGB) was responsible for assessing
property tax under the Mumbai Municipal Corporation Act, 1888. The issue arose when the
MCGB revised the valuation of the appellant's property after a first floor was added. The
appellant disputed this revision, arguing the first floor was not fully completed or occupied
on the date of assessment. They also challenged the process, claiming the corporation failed
to verify current rental rates properly and that the increased valuation was arbitrary and
unfair.

Cause of Action:

The appellant challenged the validity of the corporation’s revised ratable value assessment on
the ground that it was contrary to statutory provisions, lacked proper procedure, and was not
a fair or reasonable valuation under the law.

Issues:

 Whether the Municipal Corporation followed the statutory procedures in arriving at

the revised ratable value.
 Whether the assessment was fair and in accordance with relevant provisions in the
Municipal Corporation Act.
 Whether the appellant’s property was correctly valued considering construction
completion and occupancy status.

Judgment:
The Court of Small Causes and later courts upheld the corporation’s assessment, reasoning
that the appellant failed to produce necessary documents such as sanctioned building plans,
commencement and completion certificates, and occupancy certificates to substantiate
claims. The Court found that the corporation followed reasonable procedures and upheld the
revised valuation, rejecting the appellant’s contentions of procedural impropriety or unfair
assessment.
Ratio Decidendi:

Municipal tax assessments must follow statutory procedures including verification of rental
values; failure by the appellant to produce documentary evidence weakens contesting claims.
Assessing authorities are entitled to revise valuations upon addition or modification to
property, provided the process is reasonable and in accordance with the law.

Quote:
“The burden lies upon the party challenging the assessment to prove that it is improper or
unreasonable. Without adequate proof, valuations made by the competent authority cannot be
faulted.”

Court / Year:

High Court of Bombay, 2016

Dwaraka Prasad v State of UP

Facts:
The Uttar Pradesh government issued notifications exercising powers delegated by statute to
regulate agricultural markets. Issues arose when some notifications were challenged as
conflicting with constitutional provisions and exceeding delegated authority. Question was
whether such delegated legislation could stand if it violated constitutional rights or the parent
Act’s framework.

Cause of Action:

Petitioners challenged delegated legislation as unconstitutional and beyond the powers

conferred by the parent Act.

Issues:

 Can delegated legislation contravene constitutional provisions?

 Does violation of parent Act’s scope invalidate subordinate legislation?
Judgment:
The Supreme Court held that delegated legislation contrary to constitutional provisions or the
parent Act is void.

Ratio Decidendi:

Delegated legislation must follow constitutional mandates and parent Act’s terms. Any
conflict renders it ultra vires.

Quote:
“No delegated legislation can override the Constitution or its enabling statute.”

Court / Year:

Supreme Court of India, 1963

DC Wadhwa v State of Bihar

Facts:
The Government of Bihar enacted rules under delegated powers for administrative purposes.
Certain provisions of these rules were alleged to have been formulated with mala fide
intention to oppress or discriminate against select individuals.

Cause of Action:

Challenged rule-making process for bad faith and misuse of delegated power.

Issues:

 Is delegated legislation made in bad faith valid?

 Can mala fide motive nullify delegated laws?

Judgment:
The Supreme Court invalidated the challenged rules, emphasizing exercise of delegated
power must be bona fide.
Ratio Decidendi:

Delegated powers exercised mala fide are invalid and ultra vires the parent Act.

Quote:
“Exercise of delegated legislative power must be in good faith; bad faith invalidates.”

Court / Year:

Supreme Court of India, 1962

Ajaib Singh v Gurubachan Singh

Facts:
A statutory power was delegated to a Magistrate who further attempted to sub-delegate to
another authority without express statutory sanction.

Cause of Action:

Validity of unauthorized sub-delegation challenged.

Issues:

 Can a delegate sub-delegate powers without explicit authority?

Judgment:
Unauthorized sub-delegation was held invalid.

Ratio Decidendi:

Sub-delegation requires express or implied statutory authorization; otherwise ultra vires.

Quote:
“Delegatus non potest delegare—delegated power cannot be further delegated without
authority.”
Court / Year:

Supreme Court of India, 1965

Blackpool Corporation v Locker

Facts:
An English local authority delegated certain powers to a committee, which purported to sub-
delegate powers to officers without statutory authorization.

Cause of Action:

Whether sub-delegation without authority was valid.

Issues:

 Legality of sub-delegation without explicit statutory provision.

Judgment:
Court invalidated sub-delegation, holding original delegate must exercise power personally
unless authorized.

Ratio Decidendi:

Delegated powers cannot be sub-delegated without clear legislative permission.

Quote:
“Sub-delegation without express authority is invalid.”

Court / Year:

English Court, 1948

Gullapalli Nageshwar Rao v APSRTC

Facts:
In Andhra Pradesh, certain powers were delegated to the State Road Transport Corporation,
which delegated further without legislative sanction.

Cause of Action:

Challenge to unauthorized sub-delegation.

Issues:

 Validity of sub-delegation in statutory corporations.

Judgment:
Unauthorized sub-delegation declared ultra vires and void.

Ratio Decidendi:

Delegated powers remain with the original delegate unless expressly delegated further.

Quote:
“Further delegation of delegated powers requires express authority.”

Court / Year:

Supreme Court of India, 1969

Empress v Burah

Facts:
The Indian legislature attempted to exclude judicial review of certain delegated legislation
under emergency regulations.

Cause of Action:

Whether courts can be barred from reviewing delegated legislation.

Issues:
  Validity of statutory exclusion of judicial review.

Judgment:
Privy Council held exclusion of judicial review impermissible.

Ratio Decidendi:

Judicial review is a constitutional safeguard and cannot be excluded by delegated legislation.

Quote:
“No statute can exclude judicial review of delegated legislation.”

Court / Year:

Privy Council, 1934

Gurucharan Singh v State

Facts:
Delegated legislation applied retrospectively without clear authority.

Cause of Action:

Challenge to delegated legislation for lack of authority for retrospective effect.

Issues:

 Can delegated legislation be retrospective without express power?

Judgment:
Court invalidated retrospective application of delegated legislation without explicit
authorization.

Ratio Decidendi:

Retrospective laws require express legislative sanction; absence makes them void.
Quote:
“Retrospective effect cannot be given to delegated legislation without express sanction.”

Court / Year:

Supreme Court of India, 1964

B) Procedural Ultra Vires

Procedural ultra vires occurs when delegated legislation is made without following the
procedures prescribed by the parent Act. Even if the substance of the delegated law is within
power, if correct procedure is not followed (such as proper publication, consultation, or
approval), the legislation may be invalidated by courts.

Additional Controls in Central Acts

Many Central Acts include specific provisions to control delegated legislation, such as
requirements for scrutiny by parliamentary committees, publication in official gazettes, and
laying of statutory instruments before the legislature. These provisions act as internal checks
preventing misuse of delegated powers.