Delegated Legislation in India

Introduction: Delegated Legislation

• Definition: Law-making power exercised by
executive or other bodies under authority of
legislature.
• When a Legislature confers law-making power
upon some other body, the legislative power is
said to be delegated
• no such general power granted to the
executive to make law; practicality however
calls for delegation
Need of delegated legislation
• DPSPs/Welfare state- Growth of welfare state
increased administrative functions
• Need for flexible rules.
• Amend specific laws without long process
• Make technical changes to the law
• Same legal standing as an Act of Parliament
 Definitions
• J. Mukherjea- “Delegated legislation is an expression which
covers a multitude of confusion. It is an excuse for the legislators,
a shield for the administrators and a provocation to the
constitutional jurists.”
• Salmond- “Legislation is either supreme or subordinate. Whereas
the former proceeds from sovereign or supreme power, the letter
flows from any authority other than the sovereign power, and
is,therefore, dependent for its existence and continuance on
superior or supreme authority.”
• Jain & Jain- “delegated legislation in used in two senses: (a) the
exercise by a subordinate agency of the legislative power
delegated to it by the legislature, or (b) the subsidiary rules
themselves which are made by the subordinate agency in
pursuance of the power as mentioned in(a).”
 HENRY VIII Clause
• Frequently used in England in 15th-16th century
• a provision in a primary Act (law made by Parliament)
that empowers ministers or other government bodies
to amend or repeal parts of that primary Act using
secondary legislation, rather than having to go back to
Parliament for a new law. This clause shifts significant
power from the legislature to the executive, allowing
the executive to effectively change the law passed by
Parliament, often to "remove difficulties" in its
implementation.
• The Statute of Sewers (1531)
• Statute of Proclamations (1539)
 Status Before the Constitution
• Privy Council in Queen v Burah (1878) upheld
conditional/contingent legislation.
• Federal Court in Jatindra Nath v Province of
Bihar (1949) limited delegation, allowing only
conditional legislation.
• Result: Confusion on permissible limits of
delegation pre-Independence.
 QUEEN v. BURAH (1878)
• Law allowed the government to apply an Act to certain hill
areas by notification; Burah was tried under that
notification- He was convicted by the
Deputy-Commissioner, sentenced to death (later commuted
to transportation for life)
• ISSUE- Was using a notification to change
court/administration in those areas an unlawful delegation
of legislative power?
• Valid. The statute itself set the rule; the notification only
triggered the law’s application, not a new law. This was
conditional/contingent legislation: legislature made the law
and only allowed the executive to activate it in specified
places.
• Established that applying a law by notification (conditional
operation) ≠ impermissible delegation
 Jatindra Nath v Province of Bihar
(1949)
• Bihar’s Maintenance of Public Order Act, 1947 was
temporary but contained a proviso allowing the
Province, by resolutions of both Houses- to extend it
for another year “with such modifications” by
notification.
• The Act was applied to Chota Nagpur; detentions
followed and validity of the extension/modification
was challenged.
• ISSUE- Did the proviso (allowing extension with
modifications by resolution/notification) amount to an
impermissible delegation of legislative power (i.e.,
create a subordinate legislature)?
• Proviso was ultra vires thus invalid. The
extension coupled with power to modify the
Act was an unlawful delegation
• Power to modify statute is an essential
legislative function; it cannot be left to a
subordinate body.
• Conditional/contingent operation is
permissible, but here extension + unfettered
modification were inseparable
 Dissent / Alternate View

• Fazl Ali J. (dissent): distinguished extension

(which could be valid as conditional
legislation) from modification; would allow
limited extensions without change.
 Queen v Burah Jatinder v. State of Bihar
Burah = Triggering a law (OK). Jatindra Nath = Changing a law (NOT OK).
• Legislature allowed Gov. to
apply an Act to certain hill • Bihar Act allowed Provincial
areas by notification. Govt. to extend Act + modify
• ISSUE: Was giving power to provisions by notification.
apply law to areas by • Was power to extend law with
notification an unlawful modifications impermissible
delegation? delegation?
• HELD: VALID. Legislature made • Invalid: Power to modify law =
the law; executive only essential legislative function;
triggered its application cannot be delegated.
(conditional legislation). • Essential legislative functions
• Conditional/contingent cannot be delegated:
legislation is permissible: Modification or rewriting is
Legislature lays law, executive abdication.
applies it.
In re Delhi Laws Act Case (1951)

Landmark on Delegated Legislation in

India
7-Judge Bench | Reference under Article
143
 Brief Facts

• Post-independence: confusion over

permissible delegation after Burah (1878) &
Jatindra Nath (1949).
• President referred three questions under
Article 143:
1. Delhi Laws Act, 1912 – extend laws to Delhi
with modifications.
2. Ajmer-Merwara Act, 1947 – extend laws with
modifications.
 Main Issues

• Can legislature delegate power to extend laws

to new areas with modifications?
• Is delegating power to repeal/amend existing
laws constitutional?
• What are the limits of legislative delegation
under the Indian Constitution?
 Court's Holding

• Delegation allowed, but with limits: only

ancillary functions.
• Section 7 (Delhi Laws Act) – VALID (extension
with minor modifications).
• Ajmer-Merwara Act – VALID.
• Part C States Act – VALID, except power to
repeal/amend existing laws (ULTRA VIRES).
 Key Reasoning

• Separation of powers not strict; delegatus non

potest delegare not fully applicable.
• Legislature cannot abdicate or create a parallel
legislature.
• Essential functions = laying down policy &
binding rules → non-delegable.
• Modification power OK only if identity/policy
remains intact.
 Judges' Opinions (Highlights)

• Kania CJ & Mahajan J: Narrow view – only conditional legislation.

• Fazl Ali J: Delegation OK if ancillary; no abdication.
• Mukherjea & Bose JJ: Wider scope if policy exists and structure
intact.
• Das & Sastri JJ: Parliamentary sovereignty approach.
Consensus
• Delegation OK, essential functions non-delegable, Separation of
powers is not a strict part of Indian Constitution.
• Legislatures may delegate ancillary/non-essential legislative
functions.
• Essential legislative functions cannot be delegated.
• Legislature must retain ultimate control and must not abdicate its
power.
 Principles Evolved

• Delegation permissible subject to limits.

• Legislature must lay down policy, principles, and standards.
• Retain ultimate control (no abdication).
• Power to repeal/amend substantive law cannot be delegated.
• Policy-and-Guideline (Standard) Test: Legislature must lay
down policy, principles and standards.
• Abdication Test (J. Mathew): Delegation valid if legislature
retains power to repeal parent Act (controversial).
• 'Non-abdication' principle: Legislature must not create a
parallel legislature.
 Impact & Legacy

• Legitimized delegated legislation in India.

• Tests evolved: Policy & Guideline Test; Non-abdication
principle.
• Later cases: Gwalior Rayon, Papiah, Kanjambu upheld wide
delegation.
 Seven-Judge Bench: Divergent
Opinions
• Seven opinions, but unity on necessity of delegation and
existence of limits.
• Fazl Ali J: Legislature should normally discharge primary
functions itself; delegation only ancillary.
• Kania CJ & Mahajan J: More restrictive — emphasis on
conditional/limited delegation.
• Others (Bose, Sastri, Das): Accepted wider scope subject to
non-abdication.
 What Can / Cannot Be Delegated?
• Permissible: Details of implementation, local
modifications, ancillary matters consistent
with parent Act's policy.
• Not permissible: Delegation of essential core
functions (e.g., power to repeal substantive
laws).
• Modifications allowed only if they do not
change the identity or policy of the parent
legislation.
• Delegation/notification is allowed only if the
• In Re Delhi Laws Act case legitimized delegated legislation in
India while imposing meaningful limits.
• Legacy: Established that delegation is permissible but
essential legislative functions must remain with legislature.
• Current focus: Whether delegation includes sufficient
policy/guidelines and avoids abdication.
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Vivek Narayan Sharma v Union of India
WP (C) 906/2016
 Classification of Delegated
Legislation under Indian Constitution
 Why Classification Matters

• Ensures constitutional compliance

• Enables legislative & judicial control
• Facilitates administrative clarity
Title-Based Classification
• Rule, Regulation, Bye-law, Order, Notification
• Act can empower an authority/govt. to make laws, orders or
bye-laws on the variety of legislative provisions, without strict
limitations
• The parent Act authorizes the delegate to issue laws under specific
titles, like:
“The Government may make rules to carry out the provisions of this
Act.”
“The Authority may issue regulations for…”

These titles reflect the form and scope of the delegated power,
though all have the same legal essence: they are subordinate
legislation.

IT Rules, 2021; Municipality makes bye-laws, SEBI makes

Regulations- diff. titles as stated in Parent Act
 Central Act

Central Govt State Govt Statutory Body

State Act

State Govt Statutory Bodies

• From a Central Act to the Central Government
• Information Technology Act, 2000 → Central
Government
– The Act empowers the Central Government to make
rules for electronic governance, data protection, and
online platforms.
– Example of Delegated Legislation:
• Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021
• These rules regulate social media platforms like WhatsApp,
Facebook, and OTT platforms like Netflix.
• From a Central Act to a State Government
• Environment (Protection) Act, 1986 → State
Governments
– The Act allows State Governments to issue
directions and frame rules for pollution control
and environmental clearance, subject to Central
guidelines.
• From a Central Act to a Statutory Body
• Securities and Exchange Board of India Act,
1992 → SEBI
– SEBI frames SEBI (Listing Obligations and
Disclosure Requirements) Regulations, 2015
under delegated authority from the Act.
• From a State Act to the State Government
• Delhi Shops and Establishments Act, 1954 →
Delhi Government
– The Act empowers the State Government to
frame rules for working hours, holidays, and labor
conditions for shops and commercial
establishments.
• From a State Act to Statutory Bodies
• Haryana Urban Development Authority Act
→ Municipal Corporations
– Municipal bodies can frame building by-laws,
zoning regulations, and development control rules
under the Act.
 Discretion-Based Classification

(i) Contingent or Conditional Legislation- grants executive discretion to

bring an Act in operation; Law is complete, but its operation depends on a
fact or condition determined by an administrative authority. Authority only
finds facts, not making new law.
• Act is enforced
• Power to withdraw or bring it into operation given to delegate
• Future applicability left to delegate’s satisfaction of proper time
• Demonetisation Notification (2016) under RBI Act

(ii) Subordinate Legislation

• Delegate elaborates rules/regulations

within the framework of the Act.
• Involves discretion in making detailed
Aspect Contingent Legislation Subordinate Legislation

Nature Fact-finding Rule-making

Discretion Minimal (apply condition) Significant (frame rules)

Attack on ground of
No Yes
excessive delegation?
 Categories of Contingent legislation
1. Act enforced, power to withdraw from operation
delegated on objective/subjective satisfaction
[Essential Commodities Act, 1955 – Government can regulate and
later withdraw control orders depending on availability/supply]
2. Act enacted, future applicability to given area left
to executive [Wildlife (Protection) Act, 1972 – Government
may declare any area as a sanctuary or national park]
3. Power exercisable upon delegate’s satisfaction of
objective facts [Disaster Management Act, 2005 –
Government acts upon existence of an epidemic/disaster (an
objective fact) and extends extraordinary powers]
 Nature-Based Classification

1. Normal
• Positive Delegation: limits of delegation clearly

defined in primary Act

• Negative Delegation: Restrictions imposed,

power delegated does not include power to

do certain things
2. Exceptional
• Power to legislate on matters of principle

policy
• Henry VIII Clauses/power to amend Acts of
 Positive
❖ 🔹Right to Information Act, 2005 - Section 27
• Central/State Governments can make rules on fees,
formats, etc.
• But only to implement the procedure, not to deny
information rights.
❖ Consumer Protection Act, 2019 - Section 101
• Central Government may frame rules regarding
qualifications, procedure, etc. for Consumer
Commissions.
• Cannot alter substantive rights of consumers, only
handles logistics.
 Negative
❖ Income Tax Act, 1961
• The CBDT can issue circulars, but it cannot change tax slabs
or impose new taxes.
• That’s strictly the domain of Parliament (Finance Act).
❖ Motor Vehicles Act, 1988 – S. 138
• State Governments can make rules for traffic, but cannot
create new categories of vehicles or decide
penalties—those powers are restricted.
❖ Factories Act, 1948 – S. 112
• States can make rules for implementation, but can’t define
what counts as a "factory"—that’s already defined in the
Act.
 Authority-Based Classification
• Based on position of Authority making rules
• Sometimes, rule-making authority delegates to itself
or to some other authority a further power to issue
rules
• It cannot sub-delegate until such power granted under
enabling Act
• If it delegates law-making power to other authority,
but retains general control with itself-it does NOT
attract delegatus non potest delegare
• Primary Delegation: Parliament → Executive
Example: Motor Vehicles Rules framed by Govt
• Sub-Delegation: Delegate → another body
Example: SEBI delegating powers to officers
AK ROY v. STATE OF PUNJAB-1986
• Issue of delegation of prosecutorial authority
under the Prevention of Food Adulteration Act,
1954
• A.K Roy, Manager of Quality Control at m/s
Food Specialities Ltd, and the co. itself, were
prosecuted by Food Inspector of Faridkot for
alleged food adulteration and misbranding of
their product, New Maggi Noodles.
 Issue
• Whether Food Inspector had legal
competence to lodge such a complaint, based
on the delegation of powers by the Food
(Health) Authority of Punjab
• Whether Rule 3 of the Prevention of Food
Adulteration (Punjab) Rules, 1958 was within
the powers granted by the State Government
under Section 24(2)(e) of the Act
 Held
• Initiating prosecutions was an executive
function of significant import, intended to be
exercised only by the designated authorities.
• Allowing the Food Inspector to prosecute
would have contravened the legislative intent-
Court looked into S. 20(1) of the Act for it, it
provided express limitation
• Such sub-delegation ultra vires the Parent Act
 Purpose-Based Classification

i. Enabling: MCA compliance rules under

Companies Act
ii. Extension: GST extended to J&K (2017)
iii. Dispensing: RBI exempting NBFCs under
FEMA norms
iv. Alteration: Removal of Difficulties Orders
under GST
v. Taxing: GST rate changes via notifications
vi. Approving and Sanctioning Acts:
 Recent Examples

• Rules: Digital Personal Data Protection Rules,

2023 (PIB)
• Notification: GST compensation cess extended
till Mar 2026 (PRS India)
• Regulation: SEBI ESG Disclosure Norms, 2023
(SEBI Circular)
• Order: Stock limits on pulses & oils (Ministry
of Consumer Affairs)
• Direction: RBI Digital Lending Directions, 2023
What all are essential functions?
 Rajnarain Singh v. Chairman, Patna
Administration Committee (1954)
• Reg. Scope and limits of delegated legislative power
• Patna Administration Act (1915, amended 1928)
empowered Governor to apply/modify Municipal Act
provisions
• 1951: Notification imposed municipal taxation in Patna
Village
• Residents not given opportunity to object
• Rajnarain Singh challenged taxation as ultra vires and
violation of natural justice
• Whether executive could impose municipal taxation
via notification without procedural safeguards
 Issues for Consideration
• Did notification alter essential legislative
policy?
• Was Governor empowered to impose taxation
under delegated power?
• Could procedural safeguards (hearing
objections) be bypassed?
 Ratio
• Delegated modifications can be allowed only
for minor/local adjustments
• Cannot alter essential features or core policy
of the Act
• Sections 4–6 required hearing objections
before taxation
• Notification ultra vires: exceeded delegated
authority and ignored statutory safeguards
 Key Takeaways
• Delegated legislation must stay within
legislative boundaries
• Essential legislative policy is non-delegable
• Due process requirements (like right to be
heard) cannot be bypassed
 Jalan Trading Co. v. Mazdoor Sabha
1967
• Whether s.36 of the Payment of Bonus Act, 1965
is an unlawful delegation of legislative power?
(S. 36- power to exempt an establishment or class
of establishments “having regard to the financial
position and other relevant circumstances” and in
the public interest)
• Whether s.37 is an impermissible delegation of
legislative power.
(power given to the Central Government to make
orders “for removal of doubts or difficulties” and to
make such orders final)
 Employers’ / petitioners’ arguments
• s.36 and s.37 give the executive excessively
wide and unguided discretion — effectively
permitting the executive to make law;
violative of the constitutional
separation/limits on delegation. In particular,
s.37’s power to determine whether a
“difficulty” exists and then to make final
orders was said to let the executive be the sole
judge and thereby legislate.
 State / respondents’ answer
• Parliament provided guiding criteria for s.36 (public interest,
financial position, other relevant circumstances) so the power is
conditional and not an unguided delegation;
• s.37 is a practical device to remove doubts and apply the Act to
concrete situations, and such powers to clarify/implement are
common and historically accepted; orders would be within the
“four corners” of the statute.
 RATIO
• s.36 (exemption power): UPHELD. Majority held s.36 is conditional legislation with adequate
guidance (public interest, financial position and “other relevant circumstances”) - not an
unguided delegation of legislative authority; valid and severable. The exercise in each
concrete case remains reviewable.
• s.37 (power to remove doubts/difficulties; finality clause): STRUCK DOWN (invalid). s.37
authorises CG to determine for itself purposes of the Act and to make provisions for removal
of doubts or difficulties
• In substance an exercise of legislative authority that cannot be delegated to the executive.
• Sub-s. (2) (making the executive’s order final) aggravated the vice by making the executive
sole judge of whether a difficulty existed and of the correctness of its remedy. On that ground
s.37 was declared ultra vires.
• Dissent (Hidayatullah & Ramaswami, JJ.): S. 37 can be upheld by viewing orders under it as
administrative/clarificatory (not legislative), passed within the Act’s framework to facilitate
implementation and avoid litigation; finality was justified as a practical measure.
• The dissent emphasizes the long history of similar “removal of difficulty” clauses.
 Takeaways

• A delegated power with clear guiding criteria

and a reviewable standard (s.36) is likely valid.
• A delegation that lets the executive determine
the law’s purpose, alter or make provisions
effectively changing law, particularly coupled
with a finality clause, risks being struck down
as unconstitutional (s.37 struck down).
 Gammon India Ltd. v. Union of India
(1974)
• whether s.34 of the Contract Labour
(Regulation & Abolition) Act, 1970 amounted
to unconstitutional delegation of legislative
power [particularly after Jalan case]
• S. 34- a “removal of difficulty” clause
empowering the Central Government to make
orders to remove difficulties in giving effect to
the Act)
 FACTS
• The Act regulated and sought progressive abolition of contract
labour; it contains detailed rule-making and administrative
provisions (licences, security deposits, welfare amenities, inspectors,
etc.).
• Petitioners (major contractors) challenged multiple provisions and
rules- including fees, security forfeiture rules, Rule 25(2)(v)(b)
(wages/conditions to be fixed by Chief Labour Commissioner), and
s.34 (power to remove difficulties).
• Petitioners relied on Jalan Trading to argue that section 34 was an
excessive delegation because it allowed the executive to “remove
difficulties” and might permit effectively altering the Act.
 Petitioners’ arguments
• s.34 permits the executive to make provisions
“necessary or expedient” for removing
difficulties
• Jalan shows such clauses can be abused to let
the executive, in substance, legislate or alter
statutory scheme- especially if
finality/alteration powers exist.
• Therefore s.34 is an excessive delegation.
 Respondents’ argument
• s.34 is limited to removing
procedural/implementation difficulties in giving
effect to the Act
• It does not authorise altering the Act’s substance
or making orders inconsistent with the Act.
• Unlike Jalan, there is no finality/ousting language
and no power to change the Act’s purposes.
• It is a permissible administrative-implementing
power.
• The Act and Rules supply adequate guidance for
exercise of powers.
 RATIO
• s.34 upheld.
• SC distinguished Jalan Trading and held s.34 did
not amount to excessive delegation.
• Two core reasons: (a) no finality/ousting of
judicial review or power to alter the Act’s
substantive scheme was conferred; (b) the power
is confined to removing difficulties in giving effect
to the Act (implementation/administrative
matters), not to determine the Act’s purposes or
to legislate afresh.
• Court emphasized context and scope
• Delegated powers with adequate
limits/guidance and directed at
implementation are constitutionally
permissible
• Jalan was a fact-specific condemnation where
the provision in issue allowed the executive to
determine the Act’s purposes and to make its
orders final- features missing in s.34
 Takeaways
• “Removal of difficulty” clauses are not per se
invalid
• validity depends on text, scope and effect
(whether they permit substantive law-making or
merely administrative implementation)
• Courts will distinguish earlier cases like Jalan
where offending feature was finality or power to
alter the statute, rather than strike down every
executive power to resolve implementation issues.
 Darshan Lal Mehra & Ors. v. Union of
India (1992)
• Lucknow Nagar Mahapalika framed Theatre
Tax Rules (1965) (rates later raised) under
s.172(2) of the U.P. Nagar Mahapalika
Adhiniyam, 1959
• Cinema-owners challenged the tax as arbitrary
and as an unconstitutional delegation of
legislative power.
• Whether s.172(2) is an unconstitutional
abdication/delegation of legislative power to
mahapalikas.
• Whether classification of cinemas by annual
rental value for fixing rates is arbitrary (Art.14)
 Petitioner arguments
• s.172(2) is an unguided delegation
• lets local bodies levy taxes without legislative
control - an abdication of essential legislative
function
• Classification by annual rental value has no
nexus with the Act’s purposes and thus
arbitrary under Article 14.
 Respondents / State
• power under s.172(2) is confined “for the
purposes of this Act” and the Act itself defines
duties/objects of mahapalikas (thus providing the
guiding standard)
• There are procedural checks (drafting, objections,
State Government scrutiny, and legislative
oversight of rules) which canalise the power
• Annual rental value reasonably correlates with
accommodation/quality/location and hence with
amenity/object of taxing amusement
 Held
• Court upheld s.172(2) and the taxation scheme;
• Classification by annual rental value was held not arbitrary.
• s.172(2) authorises mahapalikas to impose taxes only for the
purposes of the Act
• Act itself fixes scope of municipal functions (including
providing civic amenities where cinemas are situated)
• Delegated power is purpose-limited and canalised by the
substantive provisions
• Procedural safeguards and State Government supervision
(s.199–201) as well as parliamentary/legislative oversight of
rules (laid for ≥14 days).
• These features defeat contention that the legislature has
abdicated its function.
 Hamdard Dawakhana (Wakf) Lal v.
Union of India (1959)
• Parliament enacted the Drugs and Magic
Remedies (Objectionable Advertisements) Act,
1954.
• To curb harmful advertisements that promote
self-medication.
• S. 3 lists diseases for which advertisement is
prohibited and ends with phrase permitting
additional diseases “specified in the rules.”
• Rules + a Schedule were made adding diseases;
petitioners challenged those words and the
Schedule as unlawful delegation.
• Whether words in s.3(d) “or any other disease
or condition which may be specified in the
rules made under this Act” amount to an
uncanalised/uncontrolled delegation to the
Executive to add diseases (i.e. impermissible
delegated legislation).
• Whether rules/schedule framed under that
delegated power (listing additional diseases)
are therefore ultra vires.
 ARGUMENTS
• Petitioners: s.3(d)’s trailing clause leaves no
standards or criteria for adding diseases, it
surrenders legislative power to the Executive
(uncanalised delegation); hence the Schedule is
void.
• Respondent / Crown: The rule-making power is
conditional/illustrative of Parliament’s power to
carry the Act into effect (i.e. conditional
legislation), and the Act + s.16 provides sufficient
guidance to the Executive
 RATIO
• While Parliament may leave details to rules, it must
furnish definite boundaries or guiding principles so
the delegate’s discretion is canalised
• Where no criteria are prescribed the power becomes
uncanalised and unconstitutional.
• Concretely, the Court struck down the words “or any
other disease or condition which may be specified in
the rules made under this Act” as confer[ring]
uncanalised and uncontrolled power on the Executive
and held the Schedule based on that wording to be
ultra vires; the rest of s.3 and the Act were saved as
severable.
 CONTROL MECHANISM OF
ADMINISTRATIVE RULE-MAKING
• PARLIAMENTARY
• PROCEDURAL
• JUDICIAL
 PARLIAMENTARY CONTROL
• Delegate always subject to authority
• A Constitutional necessity- Executive
responsible to Parliament -75(3)
TYPES-
• Direct general control
• Direct special control
 Direct General control
• Debate on Act
• Questions and notices
• Moving resolution and notices in urgent cases
of delegation of power
• VOTE ON GRANT
• Through pvt member bills seeking
modifications in Parent Act(rarely used)
 Direct Special Control
• Technique of laying on table of House the rules and
regulations framed by delegate
• Used very extensively in the UK (all admin. Rule
making subject to Parliament’s supervision under
Statutory Instruments Act 1946)
• Laying with no further direction
• Laying subject to negative resolution (cease to have
effect if annuled by reso.)
• Laying subject to affirmative resolution (have to be
approved to take effect)
• Laying in draft
 Laying provisions in India
• All India Services Act
• Motor Vehicles Act
• RPA 1951
• Delegated Legislation Provisions Amendment
Act 1983
 Non compliance with laying provisions

• Narendra Kumar v. UOI 1960

• Atlas Cycle Industries Ltd. V. State of Haryana 1979
 Atlas Cycle Industries Ltd. V. State of
Haryana 1979
• Criminal prosecution under the Essential Commodities Act for
purchase of iron/steel above fixed maximum prices.
• Key procedural point: whether failure to “lay” a notification before
Parliament invalidates delegated legislation.
• Development Officer found Atlas purchased ~60.03 MT black plain
iron sheets at prices above the Control Order limit.
• Prosecution initiated under s.7 of the Essential Commodities Act read
with the Iron & Steel (Control) Order, 1956.
• Bicycles and their components are manufactured products of
iron/steel; therefore they were treated within the Act/Control Order’s
scope as essential commodities for price‑control purposes.
 ISSUE
• Does non‑compliance with s.3(6) (failure to lay
the notification before both Houses) render
the notification void?
• Statutory background: s.3(1) empowers
central government to make orders when
opinion is formed; s.3(6) requires orders to be
laid before Parliament “as soon as may be.”
 Arguments
Appellants:
• Notification was not laid as required → delegated
instrument invalid → cannot sustain criminal
prosecution.
• Alleged absence of required “formation of opinion”
under s.3(1).
State/Respondent:
• Admitted non‑laying but argued s.3(6) is directory (not
mandatory) , omission does not void the order.
• Public interest and effectiveness of control orders
would be harmed if mere non‑compliance invalidated
orders.
• Mandatory = you must follow it. If you don’t,
the act or decision can be treated as invalid
• Directory = it’s an instruction you should
follow, treated as procedural slip
 RATIO
• s.3(6) construed as simple laying provision and
directory
• failure to lay the notification did not invalidate it
• Conviction basis (the notification) remained valid;
appeal dismissed
• WHY- no statutory consequence for
non‑compliance; voiding would cause serious
practical inconvenience; omission was procedural,
not a failure of the order’s substance
 TAKEAWAYS
• Not all laying clauses are mandatory
• May be classified as: simple laying (usually directory),
negative/affirmative resolution (usually mandatory or with
consequences)
• Check statute for express consequences, time limits or
resolution procedures to determine mandatory character.
• Distinguish failure to follow essential statutory preconditions
(may be fatal) from mere non‑laying (often not fatal).
 NARENDRA KUMAR v. UOI
• The Central Government failed to publish in the Official Gazette and
lay before Parliament the specific “principles” guiding the issuance of
permits, as required by S. 3 of the Essential Commodities Act.
• Govt. issued Non-ferrous Metal Control Order, 1958 under Essential
Commodities Act, 1955.
• Clause 4: Acquisition of copper only by permit, to be issued as per
principles specified by Govt.
• Govt. issued letter (18 April 1958) → permits only to manufacturers,
not to dealers.
• These principles were not published in Gazette and not laid before
Parliament as required by Ss. 3(5) & (6), ECA 1955
 Are permit principles valid when they were never notified in the Gazette
or laid before Parliament as required by law?

Clause 4 unenforceable:
• Permit principles = part of delegated legislation.
• Since they were not laid before Parliament and not gazetted,
they had no legal force.
• Without valid principles, Controller could not issue permits.
• Clause 4 struck down as void, unless and until properly
published & laid before Parliament.
 INDIRECT CONTROL
• Through Committees of Parliament
• Committee on Subordinate Legislation 1953 and 1964
 Functions
(1) whether rules in accord with provisions of the Constitution or the Act pursuant to which it is
made;
(2) whether contains matter which in the opinion of the Committee should more properly be
dealt within an Act of Parliament;
(3) whether contains imposition of taxation;
(4) whether directly or indirectly bars jurisdiction of the court;
(5) whether gives retrospective effect to any provision
(6) whether the order involves expenditure from the Consolidated Fund of India or the public
revenues;
(7) whether the order appears to make some unusual or unexpected use of the powers
conferred by the Constitution or the Act pursuant to which it is made;
(8) whether there appears to have been unjustifiable delay in its publication or laying the order
before Parliament; and
(9) whether for any reason the form or purport of the order calls for any elucidation.
Recommendations of committee to streamline the process
of delegated legislation in India
(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.
(iv) Legislative policy must be formulated by the legislature and laid down in the statute and
power to supply details may be left to the executive, and can be worked out through the rules
made by the administration.
(v) Sub-delegation in very wide language is improper and some safeguards must be provided
before a delegate is allowed to sub-delegate his authority to another functionary.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.
• Is Parliamentary control mechanism weak or sufficient in your
opinion?
 PROCEDURAL CONTROL- COMPONENTS
A. DRAFTING
B. ANTENATAL PUBLICITY
C. CONSULTATION
D. POST-NATAL PUBLICITY
 Drafting
• Expert draftsmen
• Simple and clear langusage
• Need of inserting objects and reasons clause
 Antenatal Publicity
• Some Acts provide for antenatal publicity
• publicity before the delegated legislation
• draft rules, regulations, or orders are made available to the
public (or specific stakeholders) for scrutiny, objections, or
consultation before they are formally enacted
Environment Protection Act, 1986 –
• S.6- The Central Government may, by notification in the Official
Gazette, make rules in respect of all or any of the matters
referred to in section 3
• S. 23 of General Clauses Act
• ‘Lobbying’ in the US
• US- S.4 of Federal Administrative Procedure Act 1946- publication
of proposed rules in Federal Register
 CONSULTATION
• With a body- Under the Advocates Act, 1961, the Bar Council is
empowered to frame rules regarding the legal profession, code of
conduct, and legal education
• With administrative boards- before framing rules under Factories Act,
consultation with the State Advisory Board on Factories may be required
• With Interested persons- Draft environmental regulations may be
published and comments invited from industries, NGOs, and local
residents affected; public hearings with impacted communities
• Preparation of rules by affected persons- Bar Council rules framed by
initially by itself, and government approves them; Bar Council rules are
initially framed by the professional bodies (like doctors or lawyers
themselves), and the government gives them legal force later approved
 POST NATAL PUBLICITY
• Necessary element
• No general law on publication
• Depends on statute- some direct that rules be published in
official gazette, some are silent
• In case parent Act silent, rules may themselves state the mode of
publication
State of Orissa v. Sridhar Kumar Malik & Ors. (1985):
• Under Section 417-A, Orissa Municipal Act, 1950, the State
can declare “notified areas” where municipal provisions apply.
• In 1972, the Orissa Government issued a proclamation in
English (in the Orissa Gazette and in the local newspaper “Daily
Samaj”) announcing its intention to constitute Ganjam and
Damodarpur villages as a notified area.
• No objections were received. In 1977, a notification was issued
making the villages a notified area.
• Whether the proclamation under Section 417-A must clearly
specify whether all or some provisions of the Act will apply.
• Whether publishing the proclamation only in English (both in
Gazette and newspaper) was valid, considering residents spoke
Oriya.
 Arguments
For the State (Appellant):
• Proclamation in English in Gazette and newspaper satisfied statutory
requirements.
• The Act did not mandate publication in Oriya.
For the Residents (Respondents):
• Proclamation was ambiguous – residents couldn’t know what
provisions would apply.
• Publication in English was meaningless since residents were
Oriya-speaking and could not exercise their right to object effectively.
 Held

• The proclamation was invalid because:

– It was ambiguous—did not state whether all or only some purposes of
the Act would apply. This deprived residents of a fair chance to object.
– Though Gazette publication could be in English, newspaper publication
must be in the local language (Oriya) so residents could understand
and respond.
• The purpose of consultation and objections under S. 417-A is to
ensure effective participation of residents. That purpose was
frustrated here.
 Factors to consider whether mode, manner, medium,
method of publication ‘mandatory or directory’
Would depend upon-
• Language of statute
• Purpose of provision
• Intention of legislature
• Inconvenience or injustice to impacted persons
 JUDICIAL CONTROL
• Enabling Act ultra vires Constitution – St. John’s TT v. NCTE 2003
• Delegated Legislation ultra vires the Constitution
• Delegated Legislation ultra vires the enabling Act