EXECUTIVE LAW-MAKING

 DELEGATED
LEGISLATION
Module 2
 • Traditional theory (Classical Liberalism) 
Function of the Executive  Administer the
law enacted by the legislature.
A movement • Social Welfare State  Quantity over
towards Quality.
Delegated • Delegated legislation is so multitudinous that
a statute book would not only be incomplete
Legislation. but misleading unless it be read along with
delegated legislation which amplifies and
supplements the law of the land.
 When the function of legislation is
entrusted to organs other than the
Delegated legislature by the legislature
itself, the legislation made by such
Legislation an organs is called delegated
legislations.
Two Senses of Delegated Legislation

Constitution

Legislature  Statute

The subsidiary rules themselves which

Exercise by a subordinate agency of the are made by a subordinate authority
legislative power delegated to it by the
legislature.
“Delegated Legislation”
Rules, regulations, bye-laws, order, etc.
“Subordinate Legislation”
National Disaster Management Act, 2005
National Disaster Management Authority (Section 3)  Subordinate Agency.

Section 6(1): “Subject to the provisions of this Act, the National Authority shall
have the responsibility for laying down the policies, plans and guidelines for
disaster management for ensuring timely and effective response to disaster.” 
ensure social distancing.

Section 10 (2)(1) – Central Government lay down guideline for, or give directions
to, the concerned Ministries or Departments of the Government of India, the State
Governments and the State Authorities regarding measures to be taken by them in
response to any threatening disaster situation or disaster.  Lockdown.
Epidemic Diseases Act, 1897
Section 2(A) - Powers of Central Government. “When the Central
Government is satisfied that India or any part thereof is visited by, or
threatened with, an outbreak of any dangerous epidemic disease and that
the ordinary provisions of the law for the time being in force are
insufficient to prevent the outbreak of such disease or the spread
thereof, the Central Government may take measures and prescribe
regulations for the inspection of any ship or vessel leaving or arriving
at any port in the territories to which this Act extends] and for such
detention thereof, or of any person intending to sail therein, or arriving
thereby, as may be necessary.]”
 SUPREME LEGISLATION/PARENT
SUBORDINATE LEGISLATION ACT

• Executive or Administrative Agency. • Legislature.

• Framed by the executive and owes its • Does not derive its authority from any other
existence and validity to the legislature. organ of the State.
 • Pressure upon Parliamentary time.
• Technicality.
Reasons for • Flexibility.
Growth of • Experiment.
Delegated • Emergency.
Legislation • Complexity of Modern
Administration.
 • Title-Based Classification.
• Discretion-Based Classification –
Classificatio Conditional Legislation.
n of • Purpose-Based Classification.
Delegated • Nature – Based Classification
(Exceptional Delegation).
Legislation
Need for Safeguards.
• It suffers from various defects  abandonment of legislative functions from the legislature and enhancement of
powers of the administration.
• Legislature uses subjective words  “necessary” or “expedient”  without laying down any standards or
procedures  granting a blank cheque to the executive.
• More transparency when a bill is passed  publicity/discussion/public participation/gauging public mood in the
process.
• Democratic safeguard not granted with DL  drafted in government offices  no publicity  directly gets notified
 inherently undemocratic.
• Control over Delegated Legislation:
a) Pre-Natal: Legislative control – How much should the legislature delegate? Should the power delegated be
unlimited?
b) Post-Natal: Exercise by the Administration – control mechanism to be put into place to minimize abuse.
• If the legislature confers certain safeguards/standards/norms  exercise of those powers can be tested in light of
those standards  Ultra Vires Principles.
 • Sovereignty of the Parliament  Parliament has
unlimited powers to make laws.
• Parliament may accordingly delegate  To any extent to
a subordinate agency/executive  Court of Law doesn’t
intervene  ABSOLUTE DELEGATION.
• Parliament is the only body that can control delegation.
Delegated • Committee on Minister's Powers: "The precise limits of
Legislation law-making power which Parliament intends to confer on
a Minister should always be expressly defined in clear
in the UK language by the statute which confers it: When discretion
is conferred its limits should be defined with equal
clearness.”
• ‘Henry VIII clauses’ are clauses in a bill that enable
ministers to amend or repeal provisions in an Act of
Parliament  implies a naked delegation of essential
legislative power to the executive by the legislature.
 I. Theoretical Understanding:
A. Separation of Powers  Doctrinal
Barrier.
Delegated B. A Delegate cannot further legislate
(delegatus non potest delegare)
Legislation Congress gets its power from the people and is
in the US a delegate of the people – cannot further
delegate its legislative powers to the executive
or any other agency.
 II. In Practice  Court Intervention

A. Strict adherence to the separation of

powers is not possible – governmental
Delegated functions have increased.
Legislation B. Impossible for the Congress to enact
in the US statutes with all particulars (Quantity over
Quality).
C. Balance needs to be created between –
Separation of powers vs. Legislative need
to delegate in a Modern Government.
Field vs. Clark – Separation of Powers
o Legislative or Discretionary Powers?
o February 29, 1892 by the United States Supreme Court.
o Issue regarding the constitutionality of congressional delegation of
authority to the President under the Tariff Act, 1890.
o Tariff Act, 1890 - Gave the President the power to suspend the tariff
rates set by the act if another country altered its tariffs in a way that he
felt was harmful to U.S. industry and trade
o Several import businesses, including Marshall Field & Co., challenged
the validity of the tariff.
Contentions raised by the Importers (Field)
The act had not been passed according to the proper
legislative procedures, since the final version had differed
from the version signed by the President and presiding
congressional officers.
Section 3 of the act, which had given the President power to
suspend the tariff rates set by the act if he felt that certain
countries had enacted tariffs harmful to the United States,
was an unconstitutional delegation of Congress' legislative
power.
Court’s Opinion
Congressional Journals did not constitute the "highest evidence of the facts," and so
a law that been passed could not "be overcome by what the journal of either house
shows or fails to show.”

Congress had "prescribed, in advance, the duties to be levied, collected, and paid"
and that the President's power related only to the enforcement of the act. The
President was thus "the mere agent of the law-making department," so the act was
constitutional.
Power is discretionary and not legislative in nature.
Principle Applied – Separation of Powers
That Congress cannot delegate legislative power to the President is a principle universally
recognized as vital to the integrity and maintenance of the system of government ordained by the
Constitution.
The act of October 1, 1890, in the particular under consideration, is not inconsistent with that
principle. It does not, in any real sense, invest the President with the power of legislation.
For the purpose of securing reciprocal trade with countries producing and exporting sugar, molasses,
coffee, tea and hides, Congress itself determined that the provisions of the act of October 1, 1890,
permitting the free introduction of such articles, should be suspended as to any country producing
and exporting them, that imposed exactions and duties on the agricultural and other products of the
United States, which the President deemed, that is, which he found to be, reciprocally unequal and
unreasonable.
Congress itself prescribed, in advance, the duties to be levied, collected and paid, on sugar, molasses,
coffee, tea or hides, produced by or exported from such designated country, while the suspension
lasted.
Contd..
The words, "he may deem," in the third section, of course, implied that the President
would examine the commercial regulations of other countries producing and
exporting sugar, molasses, coffee, tea and hides, and form a judgment as to whether
they were reciprocally equal and reasonable, or the contrary, in their effect upon
American products. But when he ascertained the fact that duties and exactions,
reciprocally unequal and unreasonable, were imposed upon the agricultural or other
products of the United States by a country producing and exporting sugar, molasses,
coffee, tea or hides, it became his duty to issue a proclamation declaring the
suspension, as to that country, which Congress had determined should occur.

He had no discretion in the premises except in respect to the duration of the

suspension so ordered.
Contd…
As the suspension was absolutely required when the President
ascertained the existence of a particular fact, it cannot be said that in
ascertaining that fact and in issuing his proclamation, in obedience
to the legislative will, he exercised the function of making laws.
Legislative power was exercised when Congress declared that the
suspension should take effect upon a named contingency. What the
President was required to do was simply in execution of the act of
Congress. It was not the making of law. He was the mere agent of the
law-making department to ascertain and declare the event upon which
its expressed will was to take effect.
A Delegate cannot further Legislate
I. Panama Refining Co. v Ryan, 293 U.S. 388 (1935)
II. National Broadcasting Co., Inc. v United States, 319 U.S. 190
(1943)
Panama
Refining Co. • Case decided on January 7, 1935, by the United States
Supreme Court.
v Ryan, 293 • the constitutionality of Section 9(c) of Title I of the
National Industrial Recovery Act, which had authorized
U.S. 388 the President to "prohibit the transportation in interstate
and foreign commerce of petroleum" in excess of state
(1935) quotas, and to punish violators with fines and jail time.
 • Section 9(c) of the National Industrial Recovery
Act authorized the President to stop the
interstate transportation of excess (or 'hot') oil.
• He then delegated that power to the Secretary of
the Interior through a series of executive orders.
• Two Texas oil companies, Panama Refining Co.
Facts and Amazon Petroleum Corp. filed separate
lawsuits challenging the Secretary of the
Interior's regulations and Section 9(c) of the
NIRA. The Supreme Court sided with the
companies and found Section 9(c) to be an
unconstitutional delegation of legislative power.
 “The President is authorized to prohibit the
transportation in interstate and foreign
commerce of petroleum and the products
thereof produced or withdrawn from storage in
excess of the amount permitted to be produced
or withdrawn from storage by any State law or
Section 9(C) valid regulation or order prescribed
NIRA Act. thereunder, by any board, commission, officer,
or other duly authorized agency of a State. Any
violation of any order of the President issued
under the provisions of this subsection shall be
punishable by fine of not to exceed $1,000, or
imprisonment for not to exceed six months, or
both.”
 • Section 9(c) of the National Industrial Recovery
Act unconstitutionally delegated legislative
Was the power to the President, which also rendered the
executive executive orders governing hot oil invalid.
• the validity of the Department of Interior's
order regulations rested on the constitutionality of
regulating Section 9(c) of the NIRA, which was the
original source of their authority.
petroleum
• that the allowance or prohibition of
commerce transportation of goods was "obviously one of
constitutional? legislative policy," meaning that a delegation of
power had occurred.
• A.L.A. Schechter Poultry Coup vs. United
States.
Principle Established
The President subsumed legislative powers that Congress does not have the power to delegate.
Congress cannot delegate legislative powers to other branches of government in order to sustain the
democratic system of government. When it allows the executive branch to make rules, Congress
must provide policies and standards for formulating them. This was not the case in the regulation
of oil transportation. The lack of any limits on executive discretion concerned the Court and
rendered the order unconstitutional.

Congress may lay down its policies and establish its standards and leave to selected
instrumentalities the making of subordinate rules, within prescribed limits, and the
determination of facts to which the policy, as declared by Congress, shall apply, but the constant
recognition of the necessity and validity of such provisions, and the wide range of administrative
authority which has been developed by means of them, cannot be allowed to obscure the limitations
of the authority to delegate, if our constitutional system is to be maintained. (P. 293 U. S. 421.)
National
Broadcasting • Independent Regulatory Commission (4th
Co., Inc. v Branch)  Federal Communications
Commission (FCC).
United States, • Established under the Communications Act,
319 U.S. 190 1934  7-person board.
(1943) • The sudden burst of broadcast radio.
Communications Act, 1934
Section 303 provides:
Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or
necessity requires, shall—
(a) Classify radio stations;
(b) Prescribe the nature of the service to be rendered by each class of licensed stations and each station within
any class
(c) Make such regulations not inconsistent with law as it may deem necessary to prevent interference
between stations and to carry out the provisions of this Act * * *;
(g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger
and more effective use of radio in the public interest;
(i) Have authority to make special regulations applicable to radio stations engaged in chain broadcasting;
(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,
as may be necessary to carry out the provisions of this Act * * *.'
 • Suits were brought on October 30, 1941, to challenging the
enforcement of the Chain Broadcasting Regulations
promulgated by the Federal Communications Commission on
May 2, 1941.
• The Commission undertook a comprehensive investigation to
determine whether special regulations applicable to radio
stations engaged in chain broadcasting were required in the
'public interest, convenience, or necessity’.
• The FCC had promulgated several rules designed to regulate
Facts “chain broadcast,”
• the FCC could not directly regulate the radio networks, it
directed its rules at the licensing of stations that participated in
the activities that the FCC had determined to be contrary to the
public interest.
• National Broadcasting Co. (NBC) challenged the regulations
on several bases, on the grounds that the order is beyond the
Commission's statutory authority or, if within it, that the
statute is an unconstitutional delegation of the legislative
power of Congress in violation of Article I, of the Constitution
 • The Act itself establishes that the Commission's
powers are not limited to the engineering and
technical aspects of regulation of radio
communication.
• The Commission as a kind of traffic officer, policing
the wave lengths to prevent stations from interfering
Court’s with each other. But the Act does not restrict the
Commission merely to supervision of the traffic. It
Opinion puts upon the Commission the burden of
determining the composition of that traffic. The
facilities of radio are not large enough to
accommodate all who wish to use them. Methods
must be devised for choosing from among the many
who apply. And since Congress itself could not do
this, it committed the task to the Commission.
 • The Commission was, however, not left at large in
performing this duty. The touchstone provided by
Congress was the 'public interest, convenience, or
necessity', a criterion which 'is as concrete as the
complicated factors for judgment in such a field of
delegated authority permit’
• The 'public interest' to be served under the
Communications Act is thus the interest of the listening
Contd.. public in 'the larger and more effective use of radio’.
• The avowed aim of the Communications Act of 1934 was
to secure the maximum benefits of radio to all the people
of the United States. To that end Congress endowed the
Communications Commission with comprehensive powers
to promote and realize the vast potentialities of radio.
• This ruling cleared the way for the FCC to regulate
networks indirectly by banning licenses to individual
stations that contract with networks engaged in practices
considered detrimental to the public interest.
Change in the approach in the US
• Conservative  Liberal Approach.
• Pragmatic considerations over theoretical objections.
• Field vs. Clark – did not acknowledge ‘Legislative’ power and termed it as
‘Discretionary’
• Panama Refinery – set the tone for the rule of delegated legislation.
• NBC vs. US – if a policy/criterion was in place, delegation can be allowed.
• Judicial Review  adopted a flexible approach  propounded the doctrine of excessive
delegation.
• Doctrine of Excessive Delegation - Primary legislative functions must be performed by
the legislature. Essential functions include determination of legislative policy and its
formulation as a rule of conduct.
Does this open the door to arbitrariness?
 Delegated Legislation in India
Pre-Independence

Post –Independence

Post - Constitution
 R vs. Burah
Act XXII of 1869 of the Council of the Governor General of India for making
laws and regulations was an Act to remove the Garo Hills from the jurisdiction
of the tribunals established under the General Regulations and Acts passed by
any legislature in British India and provided that "no Act hereafter passed by
Pre- the Council of the Governor-General for making laws and regulations shall be
Independence deemed to extend to any part of the said territory unless the same was
specifically named therein."
Section 9 of the Act, authorized the Lt. Governor, to extend the provisions of
the Act, to Khasi and Jantia Hills, with incidental changes
It removed Garo hills from the civil and criminal jurisdiction of Bengal and
When the Privy placed its administration under an officer appointed by the Lt. Governor.
Council was the Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills and
was subsequently sentenced. Burah, challenged the notification The Calcutta
highest court of High Court held that Section 9 was ultra vires the power of the Indian
appeal. Legislature  Court that the Indian Legislature was a delegate or an agent of
the British Parliament. (Sub-delegation)
Dicey, “the Indian Legislatures are in short, within their own sphere, copies
of Imperial Parliament, they are within their own sphere sovereign bodies,
but their freedom of action is controlled by their subordination to the
Parliament of the United Kingdom.”
 • That the power was to be exercised over areas which,
notwithstanding the Act, remained under the administrative
control of the Lieut.-Governor.
• That the authority given to the Lieut.-Governor was not to pass
new laws but only to extend Acts which were passed by the
Lieut. Governor. or the Governor-General in respect of the
Province both being competent legislatures for the area in
Opinion of question. He was not given any power to modify any law.

the Privy • That within the powers conferred on the Indian Legislature it
was supreme and its powers were as plenary and of the same
nature as the British Parliament.
Council • That by the legislation the Indian Parliament had not created a
legislative body with all the powers which it had.
• The objection on the ground of delegation was rejected because
what was done was not delegation at all, but it was conditional
legislation.
 Jatindra Nath Gupta vs. Province of Bihar (Purpose-Based)
The validity of Section I(3) of the Bihar Maintenance of Public Order Act,
1948 was challenged.
Bihar Maintenance of Public Order Act, 1948 was to remain in force for one
year. However, power was conferred on the Provincial Government to extend the
Pre-Constitution operation of the Act for a further period of one year.
On the ground that it authorized the provincial government to extend the life of
the Act for one year with such modifications as it may deem fit.

When the Held:

Federal Court Power to extend the operations of the Act beyond the period of one year was a
legislative act and therefore cannot be delegated.
became the There could be no delegation of legislative powers beyond conditional
highest court od legislation – extreme restrictive.

appeal. Dissenting Opinion (Fazl Ali J.):

Upheld the provision as the extension of the Act, for a further period of one
year – could not amount to re-enactment. It merely amounted to a continuance
of the Act for which the maximum period was contemplated by the legislature
itself.
 • Stance on delegated legislation was confusing - the
question of permissible limits of delegation of
legislative power became important.
• Are we going to adopt the UK or US understanding of
delegated legislation?
• Clarity was needed regarding the same  reference
was made to the Supreme Court by the President of
India under Art. 143 to look into three specific
Post-Constitution sections.
• In Re Delhi Laws Case - Before Independence, during
the formation of this Act, the states were divided into
three kind’s i.e the Part A States/ Part B States/ Part C
States.
• whether the Indian Parliament and State Legislature
had the power to transfer its sole functions of a
legislative body to executive authority.
In Re Delhi Laws: Relevant Provisions
I. Section 7 of the Delhi Laws Act, 1912, {Delegation of Power to make modifications and alterations}
“The Provincial Government may, by notification in the official gazette, extend with such restrictions and
modifications as it thinks it to the Province of Delhi or any part thereof, any enactment which is in force in any part
of British India at the date of such notification”

II. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947

”Extension of Enactments to Ajmer-Merwara.–The Central Government may, by notification in the official gazette,
extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks if any enactment
which is in force in any other Province at the date of such notification.”

III. Section 2 of the Part C States (Laws) Act, 1950.

“Power to extend enactments to certain Part C States.–The Central Government may, by notification in the Official
Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such
State, with such restrictions and modifications as it thinks it, any enactment which is in force in a Part A State at
the date of the notification and provision may be made in any enactment so extended for the repeal or amendment
of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.”
 Delhi Laws Act, 1912, re. Case (Issues)
Post –Constitution • Was section 7 of the Delhi Laws Act, 1912, or
any of the provisions thereof and in what
particular or particulars or to what extent ultra
vires the Legislature which passed the said Act?
• Was the Ajmer Merwara (Extension of Laws)
Act, 1947, or any of the provisions thereof and
When the in what particular or particulars or to what extent
Supreme Court ultra vires the Legislature which passed the said
became the Act?
highest court of • Is section 2 of the Part C States (Laws) Act,
appeal. 1950, or any of the provisions thereof and in
what particular or particulars or to what extent
ultra vires the Parliament?
 • Power to Legislate includes the
Power to delegate.
• The limits of delegation.
• Delegation of Power to make
Principles modification and alterations.
• Repeal of Law.
 Dissenting - J. Kania/J. Mahajan
Issue No 1: Not considered whether the Province of Delhi requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare
of the people of the Province or for its government. They are passed by other Provincial legislatures according to their needs and circumstances.
(application of legislative mind is required)

The power of modification implies within it the power of amending those statutes. In the Justice’s opinion “the section conferred a kind of a vague, wide,
vagrant and uncanalised authority on the Governor- General.” The wide charter of delegated power given to the executive by section 7 of the Delhi Laws
Act, it could exercise essential legislative functions and in effect it became the legislature for Delhi.

Issue No. 2: Under sections 99 and 100 there was a distribution of legislative powers between Provinces and Centre, but the word “Province” did not
include a Chief Commissioner’s Province and therefore the Central Legislature was the only law-making authority for the Chief Commissioner’s
Provinces.
The Ajmer-Merwara Act was passed under the Government of India Act as adapted by the Indian Independence Act. Although by that Act the control of
British Parliament over the Government of India and the Central Legislature was removed, the powers of the Central Legislature were still as those found
in the Government of India Act, 1935. The Independence Act therefore made no difference on the question whether the power of delegation was contained
in the legislative power.

Issue No. 3: Article 246 deals with the distribution of legislative powers between the Centre and the States but Part C States are outside its operation. On
any subject affecting Part C States, Parliament is the sole and exclusive legislature until it passes an Act creating a legislature or a Council - power of
legislation does not carry with it the power of delegation.

Three Tests:
(1)It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
(2)Such power of delegation is not negatived by the instrument by which the legislative body is created or established; and - Constitution
(3) It does not create another legislative body having the same powers and to discharge the same functions which it has, if the creation of such a
body is prohibited by the instrument which establishes the legislative body itself.
Fazl Ali, J.
The Act in question does not enact a “new law” but merely “transplants” to the territory
concerned, laws operative in other parts. He further suggested that some safeguards
should be implemented, such as a one year time period during which the effectiveness
of the delegated function can be judged. He was however of the opinion that mere
absence of the safeguard will not invalidate the said provision and it is thus intra
vires.

The legislature must normally discharge its primary legislative functions itself and not
through others.
Delegation is ancillary to and necessary for the full and effective exercise of its power
of legislation.
It cannot abdicate its legislative functions and does not become a parallel legislature.
 "It cannot be said that an unlimited right of delegation is inherent
in the legislative power itself. This is not warranted by the
provisions of the Constitution and the legitimacy of delegation
depends entirely upon its being used as an ancillary measure
which the legislature considers to be necessary for the purpose of
exercising its legislative powers effectively and completely. The
legislature must retain in its own hands the essential
legislative functions which consist in declaring the legislative
J. Mukherjee policy and laying down the standard which is to be enacted
into a rule of law, and what can be delegated is the task of
subordinate legislation which by its very nature is ancillary to
the statute which delegates the power to make it. Provided the
legislative policy is enunciated with sufficient clearness or a
standard laid down the courts cannot and should not interfere
with the discretion that undoubtedly rests with the legislature
itself in determining the extent of delegation necessary in a
particular case."
 • Separation of Powers is not part of the Indian
Constitution.
• Indian Parliament was never considered as an
agent of anybody. Doctrine of the delegate
cannot further delegate does not apply.
Views were • Parliament cannot completely abdicate itself by
creating a parallel authority.
based on • Only ancillary functions can be delegated.
• There is a limitation on delegation of power.
Legislature cannot delegate its essential
functions. Essential functions involving laying
down the policy of the law and enacting that
policy into binding rule of conduct.
 • Keeping the exigencies of modern
government in view, Parliament and state
legislatures have to delegate the power in
order to deal with multiple problems
prevailing in India as it is impossible to
expect them to come with complete and.
Take-aways Comprehensive legislations on all subjects
sought to be legislated on.
• Since the legislature derives its power from
the Constitution, excessive freedom like in
the case of the British Constitution cannot be
granted and limitations are required.
Conclusion
I. Power to Legislate include the Power to Delegate
C.J. Kania – the Constitution has never per se warranted delegation powers at any stage and agreed on the view
that the legislature can however, conditionally legislate.
J. Fazl Ali – That the power of delegation is constituent element of legislative power and the power resides in
the legislature.
II. Limits of Delegation –
C.J. Kania – legislature cannot delegate to lay down policy underlying a rule of conduct.
J. Fazl Ali – only function ancillary to the legislature can be delegated. Not the primary/essential functions.
III. Delegation of power to make modifications and alterations –
C.J. Kania – Only legislature has authority to modify and alter the law in any substantive sense.
J. Fazl Ali – Power to change things is incidental to apply the law.
IV. Power to Repeal –
Is essentially a legislative power and hence delegating that to the executive is ultra vires.
Gwalior Rayon
Silk
Manufacturing Whether the provisions of s. 8(2) (b) of the
(Weaving) vs. Central Sales Tax Act, 1956 (Act 54 of 1956)
Asst. (hereinafter referred to as the Act). suffer from
Commissioner of the vice of excessive delegation?
Sales Tax and
Others – AIR
1974 SC 1660
Section 8(2) (b)
Rates of tax on sales in the course of inter-State trade or commerce:
(b) in the case of goods other than declared goods, shall be calculated at the rate of ten per
cent or at the rate applicable to the sale or purchase of such goods inside the appropriate
State, whichever is higher; and for the purpose of making any such calculation any such
dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the
appropriate State, notwithstanding that he, in fact, may not be so liable under that law.
 • Parliament did not fix the rate of Central
Sales Tax but adopted the rate applicable to
the sale or purchase of goods within the
appropriate State in case such a rate exceeds
Facts 10 percent.
• Section was challenged on the grounds that
the Parliament is not fixing the rate itself 
has not laid down any legislative policy and
has abdicated its legislative function.
 Section was upheld by all five judges sufficient
guidelines were in place in the Act.
Diverging opinions regarding the concept of
delegated legislation:
J. Khanna – Legislature must lay down a
principle or standard for the guidance of the
Court’s delegate.
Opinion J. Matthew – Delegation involves the granting of
discretionary powers to another, but ultimate
power always remains with the legislature. The
legislature cannot be said to abdicate its
legislative functions if it could at any time repeal
the legislation and withdraw its authority and
discretion it has vested on the delegate.
 After the administration in Pondicherry was entirely handed over
to the Indian Government. The Indian Parliament in 1963 passed
a law setting up a legislature for Pondicherry. This legislature
passed General Sales Tax Act, 1965
B. Shama
Rao v. U.T Meanwhile, the Madras Act was amended by the Legislative
Assembly of Madras. In March 1966, the central executive came
of out with a notification that from April, 1966 provisions of
Madras General Sales Tax Act shall be applicable in Pondicherry.

Pondicherry By the reading of Section 1(2) and Section 2(1) it was the
amended version of Madras General Sales Tax Act which was to
(1967) be applied.

The petitioner, who is a dealer trading in liquor, was served with

a notice under the new Act asking him to get registered. He
challenged the impugned notification by the executive on the
ground that it’s an excessive delegation and hence liable to be
quashed.
 Section 1(2) of the Act provided
”That the Act would come into force on such
date as the Government may by notification
appoint” (purpose-based)

General Section 2 (1) of the Act provided:

Sales Tax "The Madras General Sales Tax Act, 1959…as
Act in force in the State of Madras immediately
before the commencement of this Act shall
extend to and come into force in the Union
Territory of Pondicherry subject to the
following modifications and adaptations..."
 • In Re Delhi Case doesn’t apply  The
‘practical necessity’ , that existed due to the
Whether the lack of a Legislative Assembly doesn’t apply.
notification of the • Pondicherry had an assembly of its own which
government could have later applied its mind before blindly
declaring the adopting the provisions of Madras Sales Tax
operation of the Act, 1959  based on an executive order.
Madras General • Legislature is not performing its legislative
Sales Tax Act, 1959 function  seeing how the law fits into the
suffers from current territory and applying it accordingly 
rather it let the executive order decide for it.
excessive
delegation? • Case of excessive delegation  executive
notification is void.
 • Excessive Delegation is
unconstitutional.
• Primary legislative functions must be
performed by the legislature.
Excessive • Essential functions include
Delegation determination of legislative policy and
its formulation as a rule of conduct.
• Nature and Scope
• Abdication
 Principles
Essential functions to enact laws and to determine legislative policy
cannot be delegated.

Not possible for the legislature to envisage in detail every possibility

and make provisions for them.

If the power is conferred on the executive in a manner which is

lawful and permissible, the delegation cannot be held to be excessive
merely on the ground that the legislature could have made detailed
provisions.
 Whether it delegates
essential legislative
Test - functions?
Challenge
of the vires
of any Whether the legislature
has enunciated its
statute policy and principle for
the guidance of the
executive?
 Court will not interfere with the
discretion to delegate non-essential
functions to the executive. If the
legislative policy is enunciated by
the legislature and a standard has
Powers and been laid down.
Duties of the The scheme of the statute including
Courts the Preamble, the background in
which the statute was enacted, the
history of the legislation, the
complexity of the problems which
the modern government face are to
be kept in mind.
 Section 3(I)(f) Patna Administration Act,
1915.
Rajnarain Singh Facts - provision of the Act empowering Patna
vs. Chairman, Local admn. to select provision of the Bengal
Patna Municipality Act,1884 and apply it to Patna
area with such restriction & modification
Administration deemed fit by govt.
Committee,
Patna and Anr. - Held- power to pick out a section of one Act
AIR 1954 SC for application in another area amounts to
569 delegating the power to change policy of the
Act which is an essential legislative power,
hence cannot be delegated
 Section 3 of the Essential Supplies (Temporary Power) Act,
1946.
Fact: Authorized the Central Government to make rules for the
purpose of maintaining or increasing supplies of essential
commodities and for securing equitable distribution at fair price.
Harishankar
Bagla vs. Held: The delegation is valid on the ground that Section 3 lays
down the legislative policy with sufficient clarity within which
State of M.P. the government can operate.
“this Court observed that the legislature must declare the policy
– AIR 1954 of the law and the legal principles which are to control any given
cases and must provide a standard to guide the officials or the
SC 465 body in power to execute the law, and where the legislature has
laid down such a principle in the Act and that principle is the
maintenance or increase in supply of essential commodities and
of securing equitable distribution and availability at given
prices, the exercise of the power was valid.”
Hamdard
Dawakhana vs.
Union of India AIR 1960 SC 554
 • The Drug and Magic Remedies (Objectionable Advertisements) Act, 1954
had been enacted.
• According to the Preamble – to control the advertisements of drugs in
certain cases, to prohibit advertisements relating to remedies pretending to
have magic qualities….(prevent misleading advertisements).
• There was a causal link between “unethical” advertisements, and physical
harm caused due to self-medication.
• On December 4, 1958, the Drugs Controller, Delhi, intimated to the
petitioners that the provisions of s. 3 of the Act had been contravened by
them and called upon them to recall their products sent to Bombay and
other States.

Facts • On December 4, 1958, the Drugs Controller, Delhi State, stopped the sale of
forty of their products set out in the petition. Subsequently, objection was
taken by the Drugs Controller to the advertisements in regard to other
drugs. Similarly, objections were taken by the Drugs Controllers of other
States to various advertisements in regard to medicines and drugs prepared
by the petitioners.
• Advertisements based on Unani system.
• That claimed certain drugs had magical or other remedies, arising out of a
concern that a number of people were using these fake drugs for the
purposes of self-medication, and worsening their own health. Petition under
Art. 32 was filed.
• Raised the question of the Constitutionality of the Drugs and Magic
Remedies (Objectionable Advertisements) Act.
 • Advertisements is a vehicle by means of
which freedom of speech guaranteed under
Art. 19(1) (a) is exercised and restrictions
imposed are not covered by Art. 19(2).
• The Act and the rules made thereunder
Validity was impose arbitrary and excessive restrictions
on the petitioners rights under Art. 19(1) (f)
challenged and (g).
• The power of delegated legislation under s. 3
is unguided and uncanalised.
• Power of confiscation under section 8
violates the rights under Art. 21 and 31.
 S.3
" Subject to the provisions of this Act, no person shall take any part in the
publication of any advertisement referring to any drug in terms which suggest
or are calculated to lead to the use of that drug for
(d) the diagnosis, cure, mitigation, treatment or prevention of any venereal
disease or any other disease or condition which may be specified in rules
made under this Act.”

Sec. 3 read S. 16

with s. 16.
(1) "The Central Government may by notification in the official gazette make
rules for carrying out the
purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing
power, such rules may
(a) specify any disease or condition to which the provisions of s. 3 shall apply;
(b) prescribe the manner in which advertisement of articles or things referred
to in cl. (c) of sub-s. (1) of s. 14
may be sent confidentially."
History behind this legislation
• In 1927 a resolution was adopted by then Council of State recommending to the Central and Provincial
Governments to take immediate measures to control the indiscriminate use of medical drugs and for
standardisation of the preparation and for the sale of such drugs.
• Committee made a report pointing out the necessity of exercising control over import, manufacture and
sale of patent and proprietary medicines in the interest of the safety of the public and public health –
Drug Act, 1940
• In 1948 The Pharmacy Act was passed to regulate the provisions of pharmacy. As a result of these two
enactments the State Governments were given the responsibility of controlling the manufacture of
drugs and pharmaceuticals and their sales through qualified personnel and the Central Government was
given the control on quality of drugs and pharmaceuticals imported into the country.
• Evidence was led before the Chopra Committee deprecating the increasing sale of proprietary
medicines particularly those with secret formulae as such drugs were positively harmful and were a
serious and increasing menace.
• DMRA was enacted - against objectionable advertisements.
• Section 3 prohibits advertisement of drugs for treatment of diseases and disorders.
 • A part of s. 3 was declared unconstitutional on the ground
of excessive delegation of legislative power.
• 'or any other disease or condition which may be specified in
the rules made under this Act' in cl.(d) of s. 3 of the Act are
delegated legislation and do not lay down any certain criteria
or proper standards and surrender unguided and uncanalised
power to the executive to add to diseases in the schedule.
• The section banned publication of any advertisement calculated

Excessive to the use of drug for diagnosis, cure, etc. of and venereal
disease or ‘any other disease or condition which may be
specified in rules made under this Act.’
Delegation • Conditional vs. Delegated Legislation.
• Conditional Legislation – delegate’s power is that of
determining when a legislation declared rule of conduct shall
become effective.’
• Delegated Legislation – delegation of rule making power
which constitutionally may be exercised by the administrative
agent. The Legislature having laid down the broad principles
of its policy in the legislation can then leave the details to be
supplied by the administrative authority.
 • Court characterized s. 3 as vague.
• Parliament had established no criterion,
standard and had not prescribed any
principles on which particular disease or
condition is to be specified nor did it specify
what facts or circumstances are to be taken
Excessive into consideration to include a particular
Delegation condition or disease.
• Goes beyond the permissible boundaries of
valid delegation.

• Recent use of this act?

• Requires updating.
CAA Protests – UP
All orders issued by the Uttar Pradesh government to recover alleged damages to
public properties from persons protesting the Citizenship (Amendment) Act, or
CAA, in December 2019 deserve to be quashed over procedural irregularities and
non-compliance with its directions.
Recovery orders were issued against at least 900 persons in connection with the
anti-CAA protests. The state government authorised additional district magistrates
(ADMs) to recover the cost of public properties damaged by the demonstrations.
“You have become complainant; you have become witness; you have become
prosecutor...and then you attach properties of people. Is it permissible under any
law?” a bench of justices Dhananjaya Y Chandrachud
“Had you framed a legislation, it would have occupied the field. But prior to
legislation, how could you give this power to the additional district
magistrates?
Is this a case of excessive delegation?
Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021

01 02
increasing the accountability empowering the users of
of the social media platforms social media by establishing a
(such as Facebook, Instagram, three-tier redressal mechanism
Twitter etc.) to prevent their for efficient grievance
misuse and abuse; resolution.
 The Intermediary Guidelines have been framed
Legislative in exercise of powers under section 87(2) of
Sanction the IT Act - Power of Central Government to
make rules.
Is it ultra vires the IT Act?
• Section 79(1) of the IT Act states that the intermediary will not be held
liable for any third-party information if the intermediary complies with the
conditions laid out in Section 79(2)  the 2021 guidelines have imposed
additional requirements and widened the ambit of requirements to be
fulfilled by the intermediary  widening the powers under Section 87?
• The IT Act does not prescribe for any classification of intermediaries.
Intermediaries are treated and regarded as a single monolithic entity with
the same responsibilities and obligations  2021 Guidelines have now
established and defined new categories of intermediaries; namely (i)
Social Media Intermediary; and (ii) Significant Social Media Intermediary
 additional set of obligations.
Part C States (Laws) Act, 1950.

Section 2 of the Part C States (Laws) Act, 1950.

“Power to extend enactments to certain Part C States.–The Central Government may, by
notification in the Official Gazette, extend to any Part C State (other than Coorg and the
Andaman and Nicobar Islands) or to any part of such State, with such restrictions and
modifications as it thinks it, any enactment which is in force in a Part A State at the date
of the notification and provision may be made in any enactment so extended for the
repeal or amendment of any corresponding law (other than a Central Act) which is for
the time being applicable to that Part C State.”

Some questions unanswered.

 • Part C States (Laws) Act, 1950  Union Territories (Laws) Act,
1950 (1956)
Lachmi • In 1951, the Central Government, in exercise of this power, extended

Narain V.
by a Notification the Bengal Finance (Sales Tax) Act, 1941, to the
then State of Delhi with certain modifications in s. 6.

Union Of • 1957 Notification an additional modification of s. 6 of the Bengal

Act was introduced in the 1951-Notification, namely the words “such
previous notice as it considers reasonable” were substituted for the
India & words “not less than 3 months' notice” in s. 6(2).
• By various notifications, exemption from sales tax was granted to
Ors several commodities. but subsequently, the exemption was
withdrawn by other notifications after giving notice of less than 3
months.
• Dealers in those commodities, who were aggrieved by the withdrawal
of the exemption, challenged the validity of' the withdrawal
Section 6
• 6(1) No tax shall be payable under this Act on the sale of goods specified in
the first column of the Schedule subject to the conditions etc: and (2) The
State Government [Amended as Central Government in 1956] after giving
by notification in the official gazette not less than 3 months notice of its
intention to do so, may by like notification add to or omit from or otherwise
amend the Schedule and thereupon the Schedule shall he amended
accordingly A modified Schedule of goods exempted from tax under s.
• 6 was also substituted for the original Schedule in the Bengal Act, by the
Notification.
• substitute the words “such previous notice as it considers reasonable” for
the words 'not less than 3 months' notice” in s. 6(2) of the Bengal Act
 The 1957-Notification purporting to
substitute the words “such previous notice
as it considers reasonable” for the words
'not less than 3 months' notice” in s. 6(2) of
the Bengal Act, is beyond the powers of
the Central Government, conferred on it,
Ultra Vires by s. 2 of the Union Territories (Laws) Act,
1950.
the Statute? The various notifications, in so far as they
with drew exemptions from tax with
respect to the several commodities, are
invalid and ineffective, as the exemption
was withdrawn without complying with
the mandatory requirement of not less
than 3 months' notice enjoined by the
section.
 • The primary power bestowed by s. 2 of the Union Territories
(Laws) Act, 1950, on the Central Government is one of
extension, that is, bringing into operation and effect, in a
Union Territory, an enactment already in force in a State.
• The discretion conferred by the section to make “restrictions
and modifications” in the enactment sought to be extended, is
Powers not a separate and independent power, which can be
exercised apart from the power of extension but is an integral

under constituent of the power of extension.

• There are 3 limits on the power given by s. 2. (i) The power
Section 2 exhausts itself on extension of the enactment. It can be
exercised only once, simultaneously with the extension of the
enactment, but cannot be exercised repeatedly or subsequently
to such extension. (ii) The power cannot be used for a
purpose other than that of extension. (iii) The words
“restrictions and modifications” do not cover such
alterations as involve a change in any essential feature of
the enactment or the legislative policy built into it.
 • Section 6(2) before the issue of the 1957-Notification,
requiring the Government to give “not less than 3 months'
notice” of its intention to add to or omit from or otherwise
amend the Schedule to the 1950-Act, embodies a determination
of legislative policy and its formulation as an absolute rule of'
conduct could be diluted, changed or amended only by the
legislature, in the exercise of its essential legislative function,
Essential which could not be delegated to the Government.
• Imposition of a new tax of exemption does not cause
Legislative dislocation or inconvenience either to the dealer or the
Revenue.
Feature. • By fixing the period at not less than 3 months, purchasers on
whom the incidence of tax really falls have adequate notice of
taxable items.
• Dealers and others likely to be affected by an amendment of
the Schedule get sufficient time to make representations and
adjust their affairs. The span of notice was thus the essence
of the legislative mandate.
 • The Central Government did not directly
amend s. 6(2). More than 6 years after the
extension of the Act by the 1951-
1957 Notification, it amended the sub-section
indirectly by amending the
Notification 1951Notification.
• But on the extension of the Act to Delhi, the
1951-Notification had exhausted its purpose.
 I. The power given by s. 2 exhausts itself on extension of the
enactment; it cannot be exercised repeatedly or subsequently to
such extension. It can be exercised only once, simultaneously with
the extension of the enactment.
II. the power cannot be used for a purpose other than that of extension.
In the exercise of this power, only such "restrictions and
modifications" can be validly engrafted in the enactment sought to
be extended, which are necessary to bring it into operation and
effect in the Union Territory.
Unfettered III. "Modifications" which are not necessary for, or ancillary and
subservient to the purpose of extension, are not permissible. And,
Powers? only such "modifications" can be legitimately necessary for such
purpose as are required to adjust, adapt and make the enactment
suitable to the peculiar local conditions of the Union Territory for
carrying it into operation and effect.
IV. Confine the scope of the words "restrictions and modifications"
to alterations of such a character which keep the inbuilt policy,
essence and substance of the enactment sought to be extended,
intact, and introduce only such peripheral or insubstantial changes
which are appropriate and necessary to adapt and adjust it to the
local conditions of the Union Territory.
 • The impugned notification, dated 7-12-1957, transgresses
the limits which circumscribe the scope and exercise of
the power conferred by s. 2 of the Laws Act.
• The power has not been exercised contemporaneously
with the extension or for the purposes of the extension of
the Bengal Act to Delhi.
• The power given by s. 2 of the Laws Act had
Court Held exhausted itself when the Bengal Act was extended,
with some alterations, to Delhi by Notification dated
28-4-1951. The impugned notification has been issued on
7-12-1957, more than 6 1/2-years after the extension.
• Notification (Delegated Legislation) declared ultravires
not the Parent Act.
 • Section 87 of the Punjab Reorganisation Act, 1966
empowered the Central Government to extend, with
such restrictions and modifications as it thought
Ramesh fit, to the Union Territory of Chandigarh any
enactment which was in force in a State at the date
Birch & Ors of the notification

V. Union Of • Section 89 - the Appropriate Government may,

before the expiration of two years from that day,
India & Ors by order, make such adaptations and
modifications of the law, whether by way of
[1989] repeal or amendment, as may be necessary or
expedient, and thereupon every such law shall
have effect subject to the adaptations and
modifications so made until altered, repealed or
amended by a competent legislature or other
competent authority.
 • Extension of East Punjab Urban Rent Restriction Act, 1949.
• Parliament enacted the East Punjab Urban Rent Restriction (Extension
to Chandigarh) Act, 1974. Section 3 of that Act extended to
Chandigarh the 1949 Act subject to modifications specified in the
schedule with retrospective effect from 4th November 1972.
• In 1985 the Legislature of the State of Punjab enacted East Punjab
Urban Rent Restriction (Amendment) Act, 1985 to make the 1949 Act
more effective.
• By a notification dated 15th December 1986 in exercise of its power
Facts under s. 87 of the Reorganisation Act the Central Government
extended to the Union Territory of Chandigarh the provisions of the
1985 Act as in force in the State of Punjab at the date of the
notification and subject to the modifications.
• While the provisions of the 1949 Act had been brought into force
with effect from 4th November, 1972 by the Act of Parliament, the
provisions of the 1985 Act had been extended to the said territory by
means of a Notification of the Central Government issued under s.
87.
• Challenged as excessive.
 • Notification and extension by Central Government is valid.
• It is impossible to carry on the government of a modern State
with its infinite complexities and ramifications without a large
devolution of power and delegation of authority.
• The legislatures cannot wash their hands off their essential
legislative function of laying down the legislative policy with
sufficient clearness and enunciating the standards which are to
be enacted into a rule of law. This function cannot be

Court Held delegated.

• Section 87 of the Reorganisation Act did not cross the line
beyond which delegation amounts to abdication and self-
effacement. It was not the power to make laws that was
delegated.
• The provision only conferred a power on the executive to
determine, the local conditions prevalent in the Union
Territory, which one of several laws, would be the most suited
to Chandigarh.
• Section 87 was quite valid even on the policy and guidelines theory. It is not necessary that the legislature
should “dot all the i's” and cross all the t's” of its policy. It is sufficient if it gives the broadest indication
of a general policy of the legislature.
• The policy behind s. 87 seems to be that it was necessitated by changes resulting in territories coming under
the legislative jurisdiction of the Centre. These were territories situated in the midst of contiguous territories
which had a proper legislature.
• They were small territories falling under the legislative jurisdiction of Parliament, which had hardly
sufficient time to look after the details of all their legislative needs and requirements. To require or
expect Parliament to legislate for them would have entailed a disproportionate pressure on its
legislative schedule.
• Once it is held that the delegation of a power to extend a present existing law is justified, a power to
extend future laws is a necessary corollary. If Parliament had no time to apply its mind to the existing
law initially to be adapted, it could have hardly found time to consider the amendments from time to
time engrafted on it in the State of its origin. It would then seem only natural as a necessary corollary
that the executive should be permitted to extend future amendments to those laws as well.
• The extension of an enactment which makes additions to the existing law would thus also be
permissible under s.87 of the Reorganisation Act, so long as it does not, expressly or impliedly repeal or
conflict with, or is not repugnant to, an already existing law.
• A notification while extending a law can make only such modifications and restrictions in the law extended as
are of an incidental, ancillary or subservient nature and as do not involve substantial deviations therefrom.
• In the instant case, the 1985 Act has been extended as it is, with only very minor modifications. The
notification dated 15th December. 1986 was, therefore, quite valid and not liable to be struck down.
 I. Nature Based Classification - Exceptional Delegation.
II. Statutes contain a “removal of difficulties clause” –
Henry VIII.
III. Why is it used? Legislature passes a statute
implementing a scheme  not sure of what difficulties
may arise during the implementation, a ‘removal of
Removal of difficulties’ clause allows the Govt. to remove any
difficulties when putting the law inn operation.
Difficulties IV. Two types of ‘removal of difficulties’ clauses:
a) Narrow power to remove difficulties, exercised
consistent with the Parent Act.
b) Broader version  may make modifications in the
parent act itself (limited by a time period) 
objectionable.
 I. Power to legislate on matters of principle
policy.
II. Power to amend Acts of Parliament of
Nature of existing laws.
Powers III. Power conferring such wide discretion that
its impossible to know the limits.
IV. Power to make rules without being
challenged in a court of law.
 • Section 37 of the Payment of Bonus Act was
challenged  Henry VIII Clause 
Jalan Excessive.
Trading v
Mill Section 37 - If any difficulty or doubt arises in
giving effect to the provisions of this Act, the
Mazdoor Central Government may, by order published
Union in the Official Gazette, make such provision,
not inconsistent with the purposes of this Act
(1966) as appears to it to be necessary or expedient
for the removal of the difficulty or doubt; and
the order of the Central Government, in such
cases, shall be final.
 • By providing that the amended legislation
must not be inconsistent with the Parent Act,
does not save it from the vice of the
delegation of legislative authority.
• Power to remove doubts and difficulties by
their own discretion would amount to
exercise of legislative authority and that
Held cannot be delegated to executive authority.
• Section 37(2) makes the decision of the
Executive the final call, making it the sole
judge of judging all the limitations stated
above have been abided by or not.
 I. Section 34 of the Indian Contract Labour (Regulation
and Abolition) Act, 1970 was challenged on the
grounds that it amounted to the excessive delegation.
Gammon II. It was an instance of a narrow Henry VIII Clause
India Ltd. because it did not vest in the Central Government the
power to amend the provision of the parent statute on
Etc. Etc vs the excuse of removing doubts and difficulties.
III. Upholding the validity of Section 34, made a
Union Of differentiation between the facts of the case from the
case of Jalan Trading, stating that unlike in the former
India & case, Section 34, in this case, did not:
a) Contain the finality clause.
Ors. Etc b) Allow the alterations to be made to the provisions of
the Parent Act.
 34. Power to remove difficulties
Section 34 in If any difficulty arises in giving effect to the
the Contract provisions of this Act, the Central Government
Labour may, by order published in the Official
Gazette, make such provisions not inconsistent
(Regulation with the provisions of this Act, as appears to it
and to be necessary or expedient for removing the
difficulty.
Abolition)
Act, 1970 Different from the Jalan Trading?
What the Court got wrong.

• Broad Henry VIII clause is not invalid.

• Other factors – finality clause  that make it excessive.
NCT Delhi v.
Union of India
(2019)
 NCT Delhi v. Union of India (2019)

• 2015 - The Kejriwal-Jung tussle starts

• 2016 - Delhi High Court says that LG is the administrative head of National Capital Territory and
AAP government’s contention that he is bound to act on the advice of Council of Ministers was
“without substance”. AAP government moves Supreme Court.
• Art 239 (A) (A) - the elected government of Delhi has the power to make laws on any of the subjects
in the State and Concurrent List except land, public order and police.
• Delhi is an exception (Quasi-State) – limited restriction justified . National Capital + UG resides here.
• Union Govt’s responsibility – law and order and allocation of land.
• Balakrishnan Committee 69th Constitutional Amendment  Art. 239(A)(A)  Administrator of
Delhi shall act on the aid and advice on the Council of Ministers in respect to which the Legislative
Assembly has powers to enact.
• The Lt. Governor shall be bound by the aid and advice of the council of ministers of Delhi except in
the case of matters relating to public order, police and land.
 Lt. Governor of Delhi was acting critically in
day-to-day affairs of the Delhi Government
and stalling the functioning of the elected
Facts government, which was quite alarming as it
was abrogating the decision-making powers of
the government
 • Democracy is enshrined as a core and fundamental value of the
Indian Constitution and by encroaching upon the democratic
right of the people by administering the government through a
nominated representative of the Union actually destroys the
heart and spirit of the Constitution.
• Article 239(A)(A) of the Constitution confers upon the people
of Delhi, the right to elect their own representatives to manage
and run the affairs of the State.

Court Held • Lieutenant Governor of NCT of Delhi is bound by the aid and
advice of the elected Government of Delhi.
• In a democracy, real power must vest in the elected
representatives and Lt. Governor cannot interfere in every
decision of the Delhi Government.
• There is no need for the Delhi Government to seek the
permission of Lt. Governor in all matters.
• Improper and indirect application of the Henry VIII
Clause can hurt democracy and the separation of powers in
India.
 • Delhi (Amendment) Act, 2021 was notified.
• The Act provides a framework for the functioning of the Legislative
Assembly and the government of the National Capital Territory (NCT)
of Delhi.
• Provides that the term “government” referred to in any law made by
the Legislative Assembly will imply Lieutenant Governor (LG).
• The Act specifies that all executive action by the government, whether
taken on the advice of the Ministers or otherwise, must be taken in the
Post the name of the LG.
• Greatly reduce the efficiency and timeliness of the Delhi
Judgment government by making it imperative for it to hold consultations with
the LG even when a situation demands urgent action.
• L-G is not obliged to give his opinion to the State government
within a time frame.
• Federalism in question? – Govt justification - This will increase
administrative efficiency of Delhi and will ensure better
relationship between the executive and the legislator.
Norms of Delegated Legislation
• The power of delegation is a constituent element of legislative power.
• Delegation of some part of legislative powers has become a compulsive necessity due to
the complexity of a modern state.
• Essential legislative functions cannot be delegated by the legislature.
• Essential legislative functions means laying the policy of the Act and enacting that policy
into a binding rule of conduct.
• After the legislature has exercised its essential functions, it can delegate non-essential.
• In order to determine the constitutionality of the delegation of legislative powers, every
case must be decided in its special setting.
• Power to repeal and amend cannot be delegated.